THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Bava Kama, 6
BAVA KAMA 6 (13 Av) - Chaim Yitzchok and Aviva Esther Fishof have sponsored
today's Daf for the Zechus of the Neshamah of Mordechai ben Rav Yosef Dov
(whose Yahrzeit is today), and for a Refu'ah Shelemah for Yosef ben Ettel.
1) THE DAMAGE DONE BY AN ITEM THAT FALLS
QUESTION: The Gemara explains what case the Tzad ha'Shaveh of the Mishnah
(2a) is referring to. The Gemara first suggests that we learn from the Tzad
ha'Shaveh that if a person places a stone, knife, or package ("Avno, Sakino,
u'Masa'o") on his roof and it falls due to a Ru'ach Metzuyah (the type of
wind that is frequent), then he is Chayav to pay for damage that it causes.
The Gemara asks that such a case does not have to be learned from a Tzad
ha'Shaveh, for it is obvious that the owner is Chayav: If the item damaged
while in flight, then it is in the category of Esh. If it damaged after it
landed, then it is in the category of Bor!
RASHI explains that the Gemara means that after the item landed, "it damaged
a Shor or Chamor."
Why does Rashi find it necessary to explain what was damaged by the item
that fell from the roof? If his intention is to exclude damage done to
Kelim, since the owner of a Bor is exempt from damage done to Kelim, then
Rashi's words seem extraneous. The exemption of Kelim is a Machlokes between
Rebbi Yehudah and the Chachamim, and there is no reason to make our Gemara
here contingent on that Machlokes. It must be that Rashi is excluding a
*person* who was damaged by the item after it landed. Why, though, should
Rashi exclude a person? Even though the owner of a Bor is exempt from
payment if his Bor caused the death of a person, the owner of the Bor is
Chayav for *damages* done to a person, as the Gemara says (28b). Why can
this Gemara not be talking about a person who tripped on the item and
In fact, earlier (3a) -- when the Gemara first mentions the case of "Avno
Sakino u'Masa'o" -- Rashi (DH Avno) explains that *people* tripped over the
item and were damaged! Rashi (19b, DH Aval Kashro) gives a similar
explanation when the Gemara says that a person is Chayav for damages caused
by his rope that he ties to a chicken which is in Reshus ha'Rabim; Rashi's
example is that if a person trips on the rope, the owner of the rope will be
Chayav. Rashi does not mention damage done to animals.
Why in our Sugya does Rashi specifically mention Shor and Chamor (to exclude
damage done to a person), while in the other Sugyos Rashi mentions that a
*person* was damaged by the item resting in Reshus ha'Rabim.
ANSWER: The reason why Rashi normally uses the example of a person who
tripped on the item in Reshus ha'Rabim, rather than the example of an
animal, might be because that is the more basic case which would obligate
the owner of the Bor, since the Gemara later (54b) concludes that one is not
obligated for damages done to a Shor and Chamor in a Bor unless the Shor is
a Shor Cheresh, Katan, Shoteh, or Suma (a deaf, young, mad, or blind ox). If
a person trips on a Bor, on the other hand, the owner of the Bor is Chayav
for the damages even if the person is of sound mind and has all of his
faculties, as Tosfos says later (27b, DH l'Fi).
In our Sugya, however, the Gemara is discussing Halachos that can be learned
through the Tzad ha'Shaveh from the Avos Nezikin mentioned in the Mishnah.
Rashi earlier (4b, DH Tana Adam; see Insights there) explains that the Bor
mentioned in our Mishnah is a Bor that could kill (a Bor that is ten
Tefachim deep), and not just one that can only cause damage (a Bor that is
nine Tefachim deep). Hence, the Halachah derived from a Tzad ha'Shaveh must
involve an "Avno, Sakino, u'Masa'o" that could *kill* a person. A Bor that
kills a person is Patur. Why, though, does Rashi not explain that the "Avno"
or "Sakino" *could* kill a person but it only ended up damaging him, while
if a person is damaged even in a Bor ten Tefachim deep, the owner of the Bor
is Chayav since the person was not killed?
The answer is that Rashi is following his opinion earlier (4b, as we
described in detail in the Insights there), that when the Bor is able to
kill a person, the owner of the Bor is exempt not only from human death
caused by the Bor, but also from damages caused to a person by the Bor,
because people normally avoid obstacles that are able to cause their death.
2) DAMAGE DONE TO PROPERTY OF HEKDESH
QUESTIONS: A Beraisa quotes Rebbi Akiva who says that the verse of "Meitav
Sadehu" (Shemos 22:4) teaches that payment for damage is collected from
"Idis" (highest quality property), and "Kal v'Chomer for Hekdesh."
The Gemara asks what Rebbi Akiva means by "Kal v'Chomer for Hekdesh." He
cannot mean that one must pay from Meitav if his ox gores an ox of Hekdesh
because of a Kal v'Chomer, because the verse says that one is Chayav only
when his ox gores "Shor Re'ehu" ("his friend's ox") and not when it gores an
ox belonging to Hekdesh.
RASHI seems to be bothered by why the Gemara rejects this possibility. "Shor
Re'ehu" is mentioned in the verse which describes the obligations of
*Keren.* Perhaps even if one is exempt from damages that Keren does to
Hekdesh, one is *Chayav* for damages done by Shen and Regel to Hekdesh.
Consequently, Rebbi Akiva might be discussing damages caused by Shen and
Regel to Hekdesh (which are the damages about which the verse says "Meitav
Sadehu Yeshalem"). (Tosfos, DH Shor Re'ehu, is also bothered by this
Rashi offers two approaches to answer this question. First, he writes that
not only is one exempt from paying for damage done by *Keren* to Hekdesh,
but one is exempt from *all* types of damage done to Hekdesh. (Tosfos, DH
Shor Re'ehu, offers a similar answer and explains what the source is to
exempt the other types of damages, other than Keren, when done to Hekdesh.)
Rashi then proposes another answer ("Lishnah Acharina"). He says that the
Gemara does not want to explain that Rebbi Akiva was talking about damages
of Shen or Regel done to a field of Hekdesh, because it would not be
possible to find a situation in which damage is done to a field of Hekdesh:
If a person sanctified a field as Chermei Kohanim, then it is not Hekdesh
but rather it belongs to Kohanim (and it is like property owned by a normal
person), and there is no reason to make a Kal v'Chomer to teach that one is
Chayav for damages to such a field. If the field was sanctified for Bedek
ha'Bayis, then it would not remain in the hands of Hekdesh; Hekdesh would
immediately have the Makdish or someone else redeem it. Rashi then adds that
if the field was damaged *before* it was redeemed, "Ein Me'ilah b'Karka'os,"
and thus one is exempt from damages done to anything attached to the ground,
such as fruit growing from the field.
Rashi's concluding words, regarding "Ein Me'ilah b'Karka'os," are very
difficult to understand.
(a) First, what does "Ein Me'ilah b'Karka'os" have to do with the monetary
obligation for damages done to Hekdesh? "Me'ilah" refers to when a person
derives personal benefit from an item of Hekdesh by using it. The verse
obligates a person who committed Me'ilah to reimburse Hekdesh for the
benefit that he derived from it, and to add an extra fifth as a penalty, and
to bring a Korban Asham Me'ilos. It is true that when one commits Me'ilah
and benefits from Karka of Hekdesh, he is exempt from the obligation to
bring a Korban Asham and from the obligation to pay the penalty of an extra
fifth, but how do we know that he is exempt even from paying for the
principle (for what he actually used)?
In addition, our Gemara is not discussing benefit that a person derived from
Karka of Hekdesh, but rather it is discussing benefit that one's *animal*
derived from Karka of Hekdesh, or damage that his animal did to fruit of
Hekdesh by trampling it. What does the exemption of Me'ilah done to Karka
have to do with our Sugya? (Acharonim)
(b) Second, even if one is exempt from damage done by Shen and Regel to
fruits of Hekdesh that are attached to the ground, why can Rebbi Akiva not
be discussing damage that was done to fruits of Hekdesh which have become
detached from a field of Hekdesh? Since they are detached from the ground,
the rule of "Ein Me'ilah b'Karka'os" does not apply, and therefore the owner
of the Shor should be Chayav! (MEROMEI SADEH)
Conversely, if the rule of "Ein Me'ilah b'Karka'os" applies to all damages
done by Shen and Regel to Hekdesh, then why does Rashi have to write first
that Hekdesh cannot own land because it is redeemed immediately? Even if
Hekdesh could own land, one would not be Chayav for damages to that land
because of "Ein Me'ilah b'Karka'os," as Rashi concludes! (MEROMEI SADEH)
(a) The MAHARSHAL (in Chochmas Shlomo and Yam Shel Shlomo) explains that
Rashi does not mean to exempt damages done to land of Hekdesh because of the
rule of "Ein Me'ilah b'Karka'os." Rather, he means that one *is obligated*
to pay for damages of Shen and Regel done to Hekdesh, because the Mishnah
(9b) states that one is obligated for damages done to all property that does
not have Me'ilah. Since land of Hekdesh has no Me'ilah, one is obligated to
pay for damages done to it. Since one is obligated for damages done to it
just like for damages done to non-Hekdesh property, no Kal v'Chomer can
teach that the obligation for payment for damage done to Hekdesh should be
more severe than the obligation for payment for damage done to non-Hekdesh
As the Meromei Sadeh writes, this is very difficult to understand. First,
the Mishnah later (9b) cannot be obligating a person to pay for damage done
to Karka of Hekdesh just because there is no Me'ilah for Karka, as Tosfos
(12b, DH Man Tana) proves from the Gemara later. In addition, even if one is
obligated to pay for damages done to Karka of Hekdesh, it does not diminish
the sanctity of Hekdesh, and thus the Kal v'Chomer should still be valid!
The Meromei Sadeh suggests that Rashi indeed means to exempt -- through a
Kal v'Chomer -- a person from paying for damages that his animal does to
Hekdesh from the fact that one does not pay for Me'ilah done to Karka. When
the verse exempts a person from paying for *Me'ilah* done to Hekdesh, it
implies that the person is exempt from *all* payments, even for paying for
damage done to the principle (since this exemption is derived through a
comparison with Terumah; since Terumah cannot take effect at all while the
fruit is attached to the ground, so, too, Me'ilah does not apply at all to
Mechubar). If a person is exempt from payments for benefit that he derives
from Karka of Hekdesh, then Kol she'Ken he is exempt from payments for
damaging Hekdesh when he does *not* derive benefit from it. And if he is
exempt for damages that *he* does to Hekdesh, then Kol she'Ken he is exempt
from damages that his *animal* does to Hekdesh. (See also TIFERES SHMUEL.)
(b) Perhaps Rebbi Akiva cannot be talking about fruit that is not attached
to the ground, since he is referring to Halachos that are derived from the
verse of "u'Vi'er b'Sdeh Acher" (Shemos 22:4), and the verse implies that
there was damage done to the field itself (Mechubar). It is clear from Rashi
that Rebbi Akiva must be referring to the type of damage that is discussed
in the verse, since Rashi only considers the possibilities that Rebbi Akiva
is discussing an ox damaging an ox, or a Shen or Regel damaging a field. Why
does Rashi not explain Rebbi Akiva to be referring to Shen or Regel that
damages a *Kli* of Hekdesh (for which there *is* Me'ilah)? It must be that
since Rebbi Akiva is explaining the words "Meitav Sadehu" of the verse, he
must be referring to the case that the verse itself is discussing (i.e.
damage done by Keren to an ox, or damage done by Shen or Regel to a field).
However, this does not answer our last question -- why does Rashi need to
explain that Hekdesh cannot own Karka, if, anyway, one is exempt from
damages even if Hekdesh could own Karka? Also, there is no hint in the
verse, "u'Vi'er b'Sdeh Acher," that damage was done to fruit still attached
to the field, and not to fruit that was detached from the field.
It therefore seems that the two parts of the second question answer each
other. "Ein Me'ilah b'Karka'os" only provides an exemption for Shen or Regel
that damages something attached to the ground. Rebbi Akiva could still be
discussing Shen or Regel that damages fruit of Hekdesh that is *detached*
from the field, for which Shen and Regel are *Chayav*. That is why Rashi
prefaces and says that Hekdesh tries to sell its fields immediately.
Therefore, if a person sanctified a field, it is unlikely that any of the
fruit would have a chance to fall off before an ox would damage it with Shen
or Regel. (If the fruit fell off before the owner sanctified the field, the
fruit would not be Hekdesh, because presumably the person was Makdish only
the field and what is attached to it. If he wanted to sanctify *fruit* to
Hekdesh, he would have collected fruit in a basket and sanctified it
separately.) This is why Rashi explains both that Karka does not remain in
the hands of Hekdesh for long, *and* that "Ein Me'ilah b'Karka'os." (M.