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Kollel Iyun Hadaf, Jerusalem

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Bava Basra 93

BAVA BASRA 91-95 - Sponsored by a generous grant from an anonymous donor. Kollel Iyun Hadaf is indebted to him for his encouragement and support and prays that Hashem will repay him in kind.



(a) The Mishnah rules that if a Shor Tam gores a cow and a stillborn calf is found next to the dead cow, and we do not know whether the mother gave birth before the goring or after it, he pays half the value of the cow - and a quarter of the calf (because whenever we are not certain whether the defendant is liable or not, we obligate him to pay a half ...

(b) ... like Sumchus - who holds 'Mamon ha'Mutal be'Safek, Cholkin.

(c) The Kashya on Rav, who goes after the Rov in money-matters is - that here too, the majority of animals give birth to a healthy baby, so why is the ox not Chayav to pay for half the calf?

(d) Rav will answer - that in spite of the Rov, the ox might be Patur, because he may have gored the cow from the front, in which case, the cow probably gave birth out of fright (and not because of the goring), in which case the ox will be Patur.

(a) The Tana Kama of another Beraisa - exempts an ox that is grazing in the meadow, from having to pay for another ox that is lying dead beside it, even though the second ox is found to have been gored and the live ox is a Mu'ad for goring. The Tana found it necessary to add that the ox was grazing in the meadow - because the Tana Kama only exempts the ox when there are other oxen in the vicinity (on which to place the blame), and that is usually the case in the grazing grounds.

(b) Rebbi Acha rules that 'Gamal ha'Ocher Bein ha'Gemalim' (a camel that is looking to mate [since camels mate back to back, 'Achor le'Achor']) - is Chayav to pay if a dead camel is found beside it.

(c) On the assumption that Rov and Chazakah have the same ruling, we attempt to connect Rav with Rebbi Acha and Shmuel with the Tana Kama.

(d) We reconcile ...

1. ... Rav with the Tana Kama - by confining his ruling to Chazakah, which is weaker than a Rov. He concedes however, that a Rov determines money-matters.
2. ... Shmuel with Rebbi Acha - by confining Rebbi Acha to the Din there, inasmuch as the mating camel is standing in front of the gored one, but even he will agree that a 'Ruba de'Leisa Kaman' (an invisible Rov) cannot extract money.
(a) We learned in our Mishnah that if Shimon plants the fruit that Reuven sold him and it fails to grow, the Tana Kama exempts Reuven from responsibility, even if they are flax-seeds, which most people sell for planting (because we do not go after the Rov, as we explained in our Mishnah), a clear proof for Shmuel. Rav replies - that this is in fact, a Machlokes Tana'im, and that he follows the opinion of Tana'im in a Beraisa (as we shall now see).

(b) The Tana Kama of the Beraisa exempts the seller in the case of flax-seeds (like the Tana of our Mishnah). Rebbi Yossi says 'Nosen Lo D'mei Zera' - because we go after the majority of flax-seeds, which are sold for planting.

(c) 'Amru Lo' counter that - by arguing that most people purchase them for eating or for medicinal purposes.

(a) The Machlokes Tana'im to which Rav referred cannot be that of Rebbi Yossi and Amru Lo - both of whom follow the Rov, the one, Rov seeds, the other, Rov people.

(b) The Machlokes must therefore be - either the Tana Kama and Rebbi Yossi or the Tana Kama and Amru Lo.




(a) The Beraisa discusses the case in our Mishnah where the garden-seeds that Reuven sold Shimon did not grow. The Tana Kama obligates him to pay for the seeds, but not for the expenses incurred by the plowing and the hiring of workers - because it is only G'rama (a loss that is no more than an indirect result of the sale).

(b) Yesh Omrim obligates him (not because he holds G'rama is Chayav', but) - because of a K'nas.

(c) According to Rav Chisda Yesh Omrim is - Raban Shimon ben Gamliel.

(a) We again cite the Tana Kama of our Mishnah who exempts Reuven from paying for the fruit that he sold Shimon that failed to grow, whereas Raban Shimon ben Gamliel obligates him to pay, assuming that it is garden seeds that are involved. The problem with the Machlokes as it stands is - that the Tana Kama certainly agrees with Raban Shimon ben Gamliel, as we explained in our Mishnah. So what are they really arguing about?

(b) We therefore attempt to explain the Machlokes and to corroborate Rav Chisda's statement at one and the same time - by establishing that the Tana Kama exempts Reuven from the expenses, whereas Raban Shimon obligates him.

(c) We refute the suggestion that perhaps the Tana Kama is the one to obligate and Raban Shimon the one to exempt (in which case, the latter will concur with the Tana Kama of the Beraisa) - on the basis of the principle that it is always the latter Tana who comes to add a Chidush (and not the former).

(d) Finally, we repudiate the suggestion that the question of expenses comes into the Mishnah - by adding to the Reisha of our Mishnah 'Divrei Raban Shimon ben Gamliel, she'Raban Shimon ben Gamliel Omer Zer'onei Ginah ... '. In other words, there is no Machlokes in our Mishnah, which is all the opinion of Raban Shimon ben Gamliel. Consequently, the question of expenses does not enter the Mishnah at all.

(a) The Tana Kama of another Beraisa states that if someone takes his wheat to be ground, and the grinder fails to make 'Lesisah' (boil them in water), with the result that the flour remained coarse as it still contained the outer shells - the grinder is liable to pay for the damage.

(b) Regarding the other two cases there that the Tana obligates the professional ...

1. ... the unrefined flour that he took to the baker - the loaves broke up into crumbs, and ...
2. ... the animal that he took to the Shochet - the latter rendered it a Neveilah (by means of a bad Shechitah).
(c) Bearing in mind that all of the above are professionals, the Tana obligates them to pay - in their capacity as Shomer Sachar (seeing as they got paid for their work) Otherwise, they would be exempt from paying.
(a) Raban Shimon ben Gamliel - adds the cost of the shame of the owner, who found himself without food for his guests, as well as the shame of the guests.

(b) We finally extrapolate Rav Chisda's statement equating Raban Shimon ben Gamliel with the Yesh Omrim in the Beraisa that we quoted earlier - from a 'Kal va'Chomer', because if the professionals are obligated to pay for the owner's shame (which does not constitute a monetary loss), how much more so for his expenses (which does).

(c) The Halachah however, is - like the Rabbanan.

(d) Raban Shimon ben Gamliel also cites an important Minhag in connection with ...

1. ... Reuven who engaged Shimon to arrange a Se'udah on his behalf, and he spoiled the food, in which case - the latter is obligated to pay for the damage. They introduce this Takanah specifically in Yerushalayim.
2. ... a cloth hanging outside the front door of one's house in Yerushalayim, which signified that guests were welcome; but once the cloth was removed, guests were to refrain from entering.
(a) Our Mishnah requires a purchaser of crops to accept - a quarter of a Kav per Sa'ah (which comprises six Kabin).

(b) He must accept - ten wormy figs per hundred ...

(c) ... and - ten barrels of bad wine, or jars of bad wine in the Sharon, per hundred?

(d) The reason for all these amounts is - because that is the percentage of bad crops that one would expect to find in the quantities that he purchased.

(a) Rav Ketina qualifies the quarter of a Kav per Sa'ah in the Reisha of our Mishnah - by restricting it to legumes (which tend to grow together with the crops), but not to stones and dirt.

(b) Rabah bar Chiya Ketuspa'ah quoting Rabah - obligates Reuven who picks out the stones from Shimon's barn to pay him the value of wheat (since that is what he would have legally sold the additional volume as).

(a) Reuven cannot simply replace the stones that he picked out - because that would be Mazik be'Yadayim, which in any case, Shimon would not be Mochel.

(b) On the one hand, removing the stones might be considered a real act of damage. On the other hand, bearing in mind that the stones are not worth anything - it might fall under the category of Hezek she'Eino Nikar (an invisible damage).

(c) Reuven will be nevertheless be liable - on the basis of Diyna de'Garmi (for which one is liable according to Rebbi Meir, like whom the Halachah is).

(d) We reconcile Rabah bar Chiya Ketuspa'ah's current ruling with Rav Ketina's Beraisa, which confines the Din in our Mishnah to a Rova of legumes (but not stones and dirt) - by obligating the purchaser to accept a Rova ha'Kav of Kitnis per Sa'ah of wheat (which is the case in our Mishnah), but not a Rova per Sa'ah of dirt, only less.

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