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Bava Kama 91

BAVA KAMA 91 (9 Cheshvan 5762) - dedicated in honor of the Bar-Mitzvah of Shmuel Tavin, by his parents. May he continue to grow in Torah and the fear of Hashem, and bring them true Nachas. Mazel Tov, also, on the birth and upcoming Bris of Shmuel's brother, may his parents merit to raise him "l'Torah l'Chupah ul'Ma'asim Tovim!"

1) [line 2] GAMAR DINA LI'KETALA - the verdict was issued for the death penalty

2) [line 3] LO ME'ANINAN L'DINEI (INUY HA'DIN) - delaying the implementation of a death penalty. Once a sentence has been passed for capital punishment, it is forbidden to delay the meting out of the penalty, as the verse says, "ve'Ahavta le'Re'acha Kamocha" (Vayikra 19:18). This also applies to the verdict issued for an ox.

3) [line 6] HEICHI DAININA LEI DINEI MAMONOS B'LO VE'ALIM? - How can we judge cases involving monetary law without the defendant present?

4) [line 7] D'KAVIL SAHADEI U'VARACH - the witnesses (and their testimony) were received, and then he (the owner of the ox) fled

5) [line 8] RIDYA - plowing (that is, the Mazik pays the Nizak with the wages earned by renting out the Shor for plowing)

6) [line 11] RIDYA, ALIYAH D'MARAH HU (MIN HA'ALIYAH) - the wages received from renting out the Shor for its plowing is considered to be part of the most valuable property of the owner, and is not considered part of the value of the animal itself
The owner of a Shor ha'Mu'ad pays the entire value of the damages that his ox causes, and the payment is collected from any of his other property, even if it is greater than the value of the goring ox itself ("Min ha'Aliyah"). In contrast, the owner of a Shor *Tam* never has to pay more than the value of the ox that damaged. That is, payment for the damages is taken from the animal itself that caused the damage ("mi'Gufo"). The wages that renting out the Shor would earn is not considered "mi'Gufo," but is considered "Min ha'Aliyah."

7) [line 12] YESH OMED LI'NEZAKIN...? - Is there an evaluation of damages, or is there no evaluation of damages? That is, when determining whether to obligate the owner of an item to pay for damages, do we evaluate whether the damaging object was fit to cause the damage or not?

8) [line 15] KOL DEHU - any amount (it does not have to be fit to the damage; as long as it did cause the damage, the owner is obligated to pay)

9) [line 16] MAH BOR SHE'YESH BO KEDEI L'HAMIS -- ASARAH TEFACHIM - just like a Bor must be deep enough in order to kill -- which is ten Tefachim deep [in order for the one who dug it to be obligated]
When a person digs a pit in Reshus ha'Rabim and does not cover it properly, and an animal passing through Reshus ha'Rabim falls into the pit, the Torah requires that the person who dug the pit pay for the damages. Even though the pit is not his private domain but is ownerless, and even though the pit did nothing to attack the animal but rather the animal walked into the pit on its own, he is nevertheless responsible.
In certain circumstances, the Torah exempts a person who digs a pit in Reshus ha'Rabim from the damages it causes. For example: 1. according to some (Chachamim), if utensils fall in and break; 2. if an animal of Pesulei ha'Mukdashim falls in and dies or is hurt; 3. if an animal falls in and dies and the pit was not ten Tefachim deep; 4. if a person falls in and dies, even if the pit was ten Tefachim deep (see Insights to 4b, for Rashi's opinion on this matter).

10) [line 17] AF KOL SHE'YESH BO KEDEI L'HAMIS, ASARAH TEFACHIM - so, too, any type of obstacle (such as a Shi'ach and a Me'arah, which are different types of pits) must be deep enough in order to kill -- which is ten Tefachim deep [in order for the one who dug it to be obligated]

11a) [line 23] AL EINO - directly on his eye
b) [line 24] KENEGED EINO - near his eye
12) [line 26] HU D'AV'IS NAFSHEI - he caused himself to be scared (shocked)
13) [line 27] PATUR MI'DINEI ADAM V'CHAYAV B'DINEI SHAMAYIM - he is exempt from laws of man, but he is liable by the laws of Heaven

14) [line 27] TAKA B'OZNO - (lit. he blew into his ear) This refers either to making a loud noise in someone's ear, or to hitting a person near or on his ear (see RASHI 90a DH ha'Toke'a).

15) [line 29] HAYAH MISNAVNEH V'HOLECH - if his illness continued (without recovery within the time that Beis Din estimated)

16) [line 29] GAVRA, KAMAH LIKATZER MI'HA MAKAH, KAMAH LO MIKATZER - [with regard to evaluating] a *person* -- how long he will be sick from this injury, and how long he will not be sick, [we certainly evaluate]

17) [line 30] L'MEIMAD CHEFTZA - [the question is with regard] to evaluating the item [which was used to cause the injury]

18) [line 35] ISPACH - he was cured/healed
19) [line 38] AMREI B'MA'ARAVA - they say in the west (i.e. Eretz Yisrael)
20) [line 46] VEHA'TANYA, AMAR LO REBBI AKIVA ... - the Beraisa says that Rebbi Akiva countered the claim of the defendant by saying that a person *is* permitted to harm himself, while the Mishnah quotes Rebbi Akiva as saying that a person is *not* permitted to harm himself! (See Background to Bava Kama 90:20-21)

21) [line 46] TZALALTA B'MAYIM ADIRIM, V'HE'ELEISA CHERES B'YADECHA - you turned over mighty waters, but you brought up in your hands only a piece of earthenware (i.e. you toiled to find a way to exempt yourself, but you were not successful)


22) [line 6] NISHBA (SHEVU'AS BITUY)
(a) A person can make an oath, or "Shevu'as Bituy," by swearing to do something or not to do something or by swearing that he did or did not do something in the past. If he does not keep his word, or if his oath regarding an action of the past is false, he transgresses the Torah's prohibition not to swear falsely (Vayikra 19:12 -- RAMBAM Hilchos Shevu'os 1:3). If his oath was made regarding an action that he will or will not do in the future, he transgresses the Torah's prohibition not to violate one's word as well (Bamidbar 30:3, see above 1a:a -- KESEF MISHNAH ibid.). It is prohibited to make an unnecessary or ridiculous oath. Such a Shevu'ah is known as a "Shevu'as Shav," which the Torah prohibits in the Ten Commandments, Shemos 20:7. (See Rambam, Hilchos Shevu'os 1:4, for a description of the various categories of Shevu'as Shav.)
(b) Shevu'os in which a person prohibits certain acts upon himself are similar to Nedarim. However, as opposed to Nidrei Isur and Charamim, in which a person places a prohibition on a specific *object* (e.g. "this bread is prohibited"), when making Shevu'os a person places a prohibition upon *himself* which prohibits himself from performing a certain action (e.g. "I am prohibited to eat this bread"), as the Gemara says in Nedarim 2b (see above, 1a:b, and Insights to 2:3).
(c) Some Rishonim maintain that when expressing a Shevu'ah, one must mention a name of or a reference to Hash-m in order for the Shevu'ah to take effect (see RAN and Rishonim to Nedarim 2a).
(d) If one unintentionally transgresses his oath (Shevu'as Bituy), he is required to bring a Korban Shevu'ah. The Korban Shevu'ah is a Korban Oleh v'Yored, which means that the makeup of the Korban varies based on the means of the penitent. If he is wealthy, he brings a female sheep or goat as a Chatas. If he cannot afford this, he brings two doves or two turtledoves, one as an Olah and one as a Chatas. If he cannot even afford the birds, he brings one tenth of an Eifah of fine flour as a Minchas Chatas. (Vayikra 5:6-13) If a person makes an oath prohibiting himself to do a certain act and he *knowingly* transgresses his oath, or if he knowingly takes a false oath that he did or did not do a certain act, he is punished with Malkos. However, if he swears *to do* something and does not do it, he does not get Malkos, since no action is involved (RAMBAM Hilchos Shevu'os 4:20). If one unintentionally takes a Shevu'as Shav, he is not punishable. If he intentionally takes such a Shevu'ah, he is punished with Malkos (RAMBAM Hilchos Shevu'os 1:7).

23) [line 7] "L'HARA O L'HETIV" - "[Or if a person swears, pronouncing with his lips] to do evil (to himself, e.g. 'I will not eat' or 'I will not sleep') or to do good, [whatever a man will utter with an oath, and it is later concealed from him (i.e. forgotten), and he then knew (i.e. he remembers it) and was guilty of one of these things [mentioned above, verses 1-4].]" (Vayikra 5:4)

24) [line 8] MAH HATAVAH RESHUS, AF HA'RA'AH RESHUS - just like the oath to do good to oneself, to which the Torah gives validity, is referring to doing good in an optional manner (and not in a manner in which he is obligated to do good by a Mitzvah), so, too, the oath to do harm to oneself is discussing doing harm to oneself in a manner that is optional

25) [line 8] AVI NISHBA L'HARA B'ATZMO V'LO HERA - I can thus include a case of one who makes an oath to harm himself, and then he does not harm himself (thus transgressing his oath)

26) [line 12] D'MEHADEK LEHU B'INDERONA - he locked them in a room
27) [line 18] "V'ACH ES DIMCHEM L'NAFSHOSEICHEM EDROSH" - "However, your blood of your souls I will demand (if you take your own blood)...." (Bereishis 9:5)

29) [line 22] DARCHEI HA'EMORI
(a) Darkei ha'Emori refers to those customs of the Nochrim that have no logical foundation, but are not idol worship.
(b) Their prohibition is learned from the verse (Vayikra 18:3) "uve'Chukoseihem Lo Seileichu" (RASHI to Shabbos 67a), or from the verse (Shemos 23:24) "Lo Sa'aseh k'Ma'aseihem" (RASHI to Chullin 77a, RAMBAN to Shemos ibid.)

30) [line 24] (LOKEH) [OVER] MISHUM BAL TASHCHIS - one transgresses the prohibition of Bal Tashchis
(a) The Torah commands, "When you besiege a city for many days in order to battle against it to seize it, *do not destroy* (Lo Sashchis) its trees...because you will eat from it..." (Devarim 20:19). This verse teaches the prohibition of "Bal Tashchis," destroying fruit-bearing trees, which is a Lo Sa'aseh punishable with Malkos. This prohibition applies only when one destroys the tree for a destructive purpose. The prohibition does not apply to one who destroys a tree for a productive purpose (such as to use its wood for building).
(b) The Rabanan extended the prohibition of "Bal Tashchis" to apply not only to destroying fruit-bearing trees, but to destroying any item of usefulness, such as foods, utensils, clothes, and buildings, which is punishable with Makos Mardus. (Rambam Hilchos Melachim 6:10; the Minchas Chinuch #529, however, says that this is included in the Isur d'Oraisa.)

31) [line 25] KARI L'MANEI MECHABDUSA - he called his clothing "those that honor [me]"

32) [line 26] KAD HAVAH MASGEI - when he was walking
33a) [line 26] HIZMEI - prickly shrubs or trees
b) [line 26] (HEGE) [HEGEI] - prickly bushes
34) [line 26] MADLEI LEHU L'MANEI - he lifted up his clothing
35) [line 26] MA'ALEH ARUCHAH - it heals
36) [line 27] R"E HA'KAPAR B'REBBI - Rebbi Elazar ha'Hapar, the son of Rebbi

37a) [line 33] LO SHAVKAS CHAYEI L'VERYASA - you have not left life to any creature (for every person will use this claim to exempt himself from having to pay for damages that he caused)
b) [line 33] KOL KEMINEI?! - (lit. Is everything from him?) Does he have such power [to be believed when he claims that the owner of the ox told him to kill it, or the owner of the tree told him to cut it down]?!

38) [line 33] ISAMYEI? - should I remove/delete it?

39) [line 35] "V'SHAFACH... V'CHISAH[U]" - "... and he shall pour [its blood] and he shall cover it [with earth]." (Vayikra 17:13)

(a) There is a Mitzvah to cover the blood of all birds and wild animals (Chayos) that are slaughtered, as it states in Vayikra (17:13) "v'Ish Ish ... Asher Yatzud Tzeid Chayah O Of Asher Ye'achel, v'Shafach Es Damo v'Chisahu b'Afar." The blood must be covered from above and below with earth or any similar granular substance.
(b) The Beraisa quoted by our Gemara teaches that the person who pours the blood must be the one who covers it.

41) [line 37] ASARAH ZEHUVIM - ten gold pieces

42) [line 37] DIKLA D'TA'AN KAVA - a date-palm that produces [at least] a Kav of fruit

  • 1 Kur (= 1 Chomer) = 30 Se'in
  • 1 Lesech = 15 Se'in
  • 1 Eifah = 3 Se'in
  • 1 Se'ah = 6 Kabin
  • 1 Tarkav (= 3 Kabin) = 12 Lugin
  • 1 Kav = 4 Lugin
  • 1 Log (= 1 Rova) = 4 Revi'iyos = 6 Beitzim
  • 1 Beitzah = 2 k'Zeisim
  • 1 k'Zayis = approximately 0.025, 0.0288 or 0.05 liters, depending upon the differing Halachic opinions.
1 Kav = 4 Lugin = 24 Beitzim = 1.20, 1.38, or 2.4 liters, depending upon the differing Halachic opinions
43) [line 38] ZAYIS - an olive tree
44) [line 38] ROVA - a quarter of a Kav (see above, entry #42)
45) [line 39] SHACHIV - died
46) [line 40] ME'ULEH B'DAMIM - worth more in monetary form (the wood of the tree is worth more, for construction, than the tree is worth when used to produce fruit)

47) [line 40] "RAK ETZ ASHER TEDA KI LO ETZ MA'ACHAL HU, [OSO TASHCHIS V'CHARATA]..." - "Only a tree that you know is not a fruit-producing tree, you may destroy and cut it down...." (Devarim 20:20)

48) [line 41] ZEH ETZ MA'ACHAL - this refers to a fruit-producing tree, which you are allowed to cut down when there is no other tree available to use for building (RASHI)

49) [line 41] ILAN SERAK - a tree that does not produce fruit, such as Arazim (cedar) trees and Shikmim trees (sycomore, or Egyptian fig (not to be confused with the sycamore))

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