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Bava Kama 42

BAVA KAMA 42 - - dedicated by Reb Gedalia Weinberger of Brooklyn, N.Y. in memory of his father, Reb Chaim Tzvi ben Reb Shlomo Weinberger (Yahrzeit: 18 Adar). Reb Chaim Tzvi, who miraculously survived the holocaust, always remained strongly dedicated to Torah and its study.

1) [line 1] MASHKACH RAVREVEI SHAKIL; ZUTREI SHAKIL - when he catches large [fish,] he keeps them; small [fish,] he keeps them, [too]

2) [line 4] SHADI ZUTREI V'SHAKIL RAVREVEI - [when he has limited space (RASHI),] he throws back the small fish and takes the large [ones]

3) [line 6] DEMEI VELADOS - the value of fetuses
(a) When a pregnant woman miscarries after being struck accidentally by a person, the verse states "Ka'asher Yashis Alav Ba'al ha'Ishah ..." - "for whatever the husband will sue him, he will pay [i.e. the value of fetuses], as determined by the courts" (Shemos 21:22).
(b) If a Shor ha'Mu'ad causes a woman to miscarry, Rebbi Yosi ha'Gelili learns from the verse, "u'Ba'al ha'Sor Naki," that the owner of the ox does not pay Demei Velados (Bava Kama 42a).

4) [line 7] "KI YINATZU ANASHIM..." - "If men quarrel, [and hurt a pregnant woman, so that her fetuses depart from her, and yet no further harm follows; he shall be surely punished, for whatever the husband will sue him, he will pay [i.e. the value of fetuses], as determined by the courts." (Shemos 21:22)

5) [line 12] YATZIVA B'AR'A, V'GIYORA BI'SHMEI SHEMAYA?! - (lit. how can the citizen be down on the ground, while the [lowly] visitor is [high above him] in the upper heavens?) i.e. the assumption of Rav Ula brei d'Rav Idi is not logical since at one stage he states that a Mu'ad (the visitor) would be exempt from payment while a Tam (the citizen) would be Chayav!!

(a) A person who wounds his fellow Jew (Chovel b'Chaveiro), is obligated to pay five payments, i.e. four payments in addition to Nezek, which one must always pay for damages. The five payments are:

1. NEZEK (Damages; also known as Pegam) - If one causes damage to the person of a fellow Jew, such as blinding his eye, cutting off his hand or breaking his foot, Beis Din assesses the damages that he caused based on the depreciation such damages would cause to a slave on the slave market.
2. TZA'AR (Pain) - The payment for pain inflicted is evaluated as the amount that the injured person would be ready to pay to have the identical injury inflicted in a painless manner (Bava Kama 85a). Pain payments are due even if no other damage (other than the pain) was inflicted -- for example, if one person burned another's fingernail without causing a wound (Mishnah, ibid.). The amount of this payment ultimately depends upon the physical and financial situation of the injured person (RAMBAM Hilchos Chovel u'Mazik 2:9).
3. RIPUY (Medical expenses) - He must pay all medical costs until the injured person heals completely from his wounds.
4. SHEVES (Unemployment) - He must pay unemployment for the duration of the injured person's recovery. Sheves is evaluated as if the injured person is protecting a pumpkin patch from birds, a job that requires only minimal exertion and can be accomplished even by an invalid. (The money that the injured person loses due to his permanent handicap, though, is covered by the Nezek payment.)
5. BOSHES (Shame) - Boshes is evaluated based on the status of the person who caused the embarrassment and the status of person who was embarrassed. According to most opinions, the shame caused *by* an undignified person is greater than the shame caused by an average or dignified person (YERUSHALMI Kesuvos 3:8, RASHI to Bava Kama 83b, BARTENURA to Kesuvos 3:7, RAMBAM Hilchos Chovel u'Mazik 3:1, TUR Choshen Mishpat 420 and SHULCHAN ARUCH CM 420:24). Others rule that the shame caused by an *average* person is greater than the shame cause by an undignified or a dignified person (RASHI to Kesuvos 40a. The RAN rules that this is the Halachah in all cases except for Ones and Pituy, which follow the previous opinion). With regard to a person who was embarrassed, shame caused *to* a dignified person is greater than the shame that an average or undignified person suffers (Bava Kama ibid.).
(b) The owner of an animal that wounds a person is only required to pay for the damages (Nezek), as is learned from the verse, "[v']Ish [Ki Yiten Mum] ba'Amiso, [Ka'asher Asah, Ken Ye'aseh Lo.]" - "[And if] a man [causes a blemish] in his neighbor; just as he has done, so shall it be done to him" (Vayikra 24:19). The Gemara (Bava Kama 26a, 33a) learns from this verse that only people are required to pay the extra four payments.

7) [line 25] EIN ASON BA'ISHAH, YE'ANSHU; YESH ASON BA'ISHAH, LO YE'ANSHU (KAM LEI BID'RABAH MINEI - literally, "he remains with the worse of the two," or, "a more severe punishment exempts one from the less severe one")
(a) When one performs a single act from which he incurs two punishments, or a punishment and a monetary liability, the more severe punishment exempts the sinner from the less severe one. For example, one who stabs another to death will not have to pay for the shirt that he tore while stabbing.
(b) This rule is only true if the two punishments, or the punishment and the monetary liability, are caused by a "single action." If one follows the other, even by one second, the sinner *is* punished with both punishments. The Gemara questions what defines the difference between "a single action" and different actions. According to one opinion, the entire series of actions which define the more severe sin are considered a single action with regard to Kam Lei bid'Raba Minei. (Kesuvos 31a)
(c) There are a number of situations in which this rule does not apply:

1. Rebbi Meir holds that it only applies to a death penalty. One who is punishable with Malkos, though, is required to pay as well as to receive Malkos. (Kesuvos 33b)
2. If one sins *b'Shogeg*, Kam Lei bid'Raba Minei does not necessarily apply (that is, since no actual punishment is executed, the potential punishment does not exempt the sinner from monetary liability), as follows: If the sin is one which warrants the death penalty, Rav Dimi holds that Rebbi Yochanan and Reish Lakish disagree whether Kam Lei bid'Raba Minei applies, while Ravin says that they both agree that it applies. If the sin is one which warrants Malkos, Rebbi Yochanan and Reish Lakish disagree whether Kam Lei bid'Raba Minei applies. (Kesuvos 34b-35a)
3. In certain cases, if the monetary liability is paid to a person other than the victim, the sinner may be liable to pay even though he is also punished with the death penalty or Malkos.
(a) The Torah prescribes the death penalty as punishment for intentional murder. If a person inadvertently kills, he is not liable to the death penalty.
(b) When a person intends to kill one person and kills someone else, the Tana'im argue (Sanhedrin 79a) as to whether he is liable to the death penalty or not.
(c) Rebbi Shimon, who exempts the killer from the death penalty, rules that he must pay the value of the dead man (on the slave market) to his heirs.

If one's ox kills an Eved Kena'ani (a Nochri slave), thirty Shekalim are given to the master of the slave, as stated in Shemos 21:32.


10) [line 18] MESHALEM BA'MOSAR NEZEK SHALEM - he pays complete compensation for the extra. That is, in a case where a man damages someone's Shor, and the Shor damages the person (and the Shor is a Shor Tam), and the damage done by the Shor to the man is greater than the damage done by the man to the Shor, the owner of the Shor must pay the complete difference, Nezek Shalem (and not just half of the difference, Chatzi Nezek).

11) [line 21] HA TAVREI REBBI AKIVA LI'GEZIZEI - but Rebbi Akiva "broke the strength of his fist" (i.e. he retracted his opinion)

12) [line 23] "[O VEN YIGACH, O VAS YIGACH,] KA'MISHPAT HA'ZEH YE'ASEH LO" - [Or if it gores a minor boy, or a minor girl,] then in accordance with this law shall be done to him." (Shemos 21:31)

13) [line 41] "...V'HEMIS ISH O ISHAH...IM KOFER YUSHAS ALAV..." - "[But if the ox was wont to gore with its horn in times past, and its owner had been warned, but he had not watched it properly,] and it killed a man or a woman; the ox shall be stoned, and its owner also shall pay Kofer, i.e. ransom (lit. be put to death). When he is required to pay Kofer, then he shall give for the redemption of his life whatever is laid upon him." (Shemos 21:29-30)

14a) [line 46] YARIS - inherit

(a) A husband is entitled to inherit his wife's estate upon her death. The Tana'im argue as to whether the inheritance of a wife's estate by her husband is mid'Oraisa or mid'Rabanan. According to those who rule that it is mid'Rabanan, the Torah law dictates that her estate go to her sons, her father or to her closest blood relative. The Rabanan gave her inheritance to her husband using the power of "Hefker Beis Din Hefker" (see Background to Yevamos 89:13).
(b) According to the Tana'im who rule that the inheritance of the husband is mid'Oraisa, it is learned from the verse, "li'She'ero ha'Karov Eilav mi'Mishpachto, v'Yarash Osah" - "[And if his father has no brothers, then you shall give his inheritance] to his next of kin from his family, and he shall possess it..." (Bamidbar 27:11). Chazal interpret the words "v'Yarash Osah" as applying to his wife, "and he shall inherit *her*." For this purpose, one of the Amora'aim rearranges the verse to read, "l'Karov Eilav mi'Mishpachto, She'ero v'Yarash Osah" - "[then you shall give his inheritance] to his next of kin from his family; and his wife, he shall inherit her" (Bava Basra 111b).

15) [line 46] "V'YARASH OSAH" - see previous entry

16) [line 48] EIN HA'BA'AL NOTEL BA'RA'UY KEVA'MUCHZAK - A husband does not receive a portion from assets that have not reached the hands of his wife
(a) See above, entry #14b.
(b) A husband only receives an inheritance from the assets that were in the possession of his wife at the time of death. He does not inherit Ra'uy, i.e. assets that were not in the hands of a person when he dies but would have come to him eventually. The following are a few examples in which a husband does *not* receive a portion:

1. If one of the wife's relatives dies after her, the husband does not receive a portion of that inheritance (RASHI).
2. If the wife is owed money, even if the debt was written in a document that was in the possession of the wife, the husband does not receive a portion of the debt if it is paid after the wife's death (RAV OVADYAH MI'BARTENURA).
3. A husband does not receive a portion of the appreciation of property that is brought about by human efforts after the wife's death; e.g. stalks of wheat that produce grain and trees that produce fruit. However, a husband does receive a portion of a small tree that grows on its own, without any expenditure, into a large tree; this is called Matzuy l'Ishto since the tree has not changed form after the wife's death (SEFER HA'CHINUCH #400).
17a) [line 51] EIN HA'BA'AL, NOSEN L'YORSHAV - if the husband is dead, it (the Demei Velados -- see above, entry #3) is given to his heirs
b) [last line] EIN HA'ISHAH, (NOSENES) [NOSEN] L'YORSHEHA - if the wife is dead, it (the payments of Nezek and Tza'ar) are given to her heirs (but not her husband)

18a) [last line] HAYESAH SHIFCHAH V'NISHTACHRERAH - if the woman was a freed maidservant [married to a freed slave]
b) HAYESAH SHIFCHAH V'NISHTACHRERAH O GIYORES; ZACHAH - if the woman was a freed maidservant [married to a freed slave] or a convert [married to a convert] and the couple died, the Mazik gets to keep his money

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