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Bava Kama, 11

BAVA KAMA 11 - dedicated by Reb Gedalia Weinberger of New York, an Ohev Torah and Marbitz Torah whose tireless efforts on behalf of Klal Yisroel have produced enormous benefits for the Lomdei Hadaf over the years.


QUESTION: Shmuel teaches that "Ein Shamin" -- we do not appraise the payments of a Ganav and Gazlan, but only the payments of Nezikin. The Gemara concludes that for a Sho'el, one who borrowed an item, we do appraise the payment.

What does this "appraisal" mean? We learned earlier that a person may pay for damages with any object of value which he appraises to be worth the value of the damage. The Gemara (10b) teaches that for this reason if one's ox gores the ox of someone else, the Mazik only has to pay the difference in value between the live ox and the dead ox, since he can insist that the Nizak accept the dead ox as the first installment of the payment owed.

In what way is the Halachah of the payment of a Ganav and Gazlan different from the Halachah of the payment of a Mazik? In addition, the Gemara brings no source for Shmuel's ruling. Why should the payment of a Ganav and Gazlan differ from the payment of a Mazik?


(a) RASHI writes that a Ganav may not return the carcass of an ox that he stole as part of the payment for stealing the ox. Rather, he must return a fit ox. For Nezikin, however, the Mazik may pay the dead ox as part of his payment, as the verse says, "v'ha'Mes Yiheheh Lo" -- "the carcass shall be his" (Shemos 21:36).

What does Rashi mean? The Gemara earlier explains that this verse, "v'ha'Mes Yiheheh Lo," is not necessary to teach that the Mazik may use the carcass as payment, because we learn from the word "Yashiv" (Shemos 21:34) that a Mazik may pay back with any form of Shaveh Kesef.

Also, is Rashi ruling that a Ganav cannot pay Shaveh Kesef? We learned earlier (5a) that the acts of stealing of a Ganav and Gazlan are also called Avos Nezikin, since they must also pay from Meitav, which implies that they *may* pay with Shaveh Kesef!

It seems that Rashi's intention is to explain the way the MAHARI KOHEN TZEDEK (in the Shitah Mekubetzes) explains. The Mahari explains that Shmuel rules like Rav Huna (9a), who argues with the Gemara earlier (7b) and rules that one may not pay for Nezikin, l'Chatchilah, with Shaveh Kesef (see Insights to 9a). According to Rav Huna, the verse "v'ha'Mes Yiheheh Lo" indeed teaches that there is one form of Shaveh Kesef which *may* be used l'Chatchilah, even if the Mazik has Kesef or Meitav (Karka), and that is the Neveilah, the carcass, of the ox that was gored. Rashi is explaining that Shmuel means to say that a Ganav or Gazlan may not even pay with the Neveilah of the ox that he stole l'Chatchilah, when he has Kesef or Karka with which to pay.

The Gemara later (94a) explains why this should be so. The Gemara says that Shmuel's ruling is based on the fact that a Ganav acquires the item that he stole through a Shinuy (by changing it in a significant way). The Mahari Kohen Tzedek says that this explains Shmuel's ruling in the following manner. When one person's ox gores another's ox, the carcass remains the property of the Nizak. Therefore, when the Mazik gives the carcass to the Nizak, he is not really "paying" him, but rather he is simply saying that he never damaged this part of the value of the ox (i.e. the carcass). Since it is not a form of payment for damage done, it does not have to be Kesef or Meitav. A Ganav, in contrast, acquires the entire ox when it dies, and therefore the carcass belongs to him, and if he returns it to its rightful owner, it can only be returned as a form of payment for the ox that he stole. Since, l'Chatchilah, he must pay back with Kesef or Meitav, this payment is not acceptable.

The RIVAM, as cited by TOSFOS in Bava Metzia (97a; see also RASHBA here in the name of "Yesh Mefarshim"), offers a similar explanation. Like Rashi, he explains that Shmuel is referring only to using the carcass as payment. Even though we rule that a person can pay l'Chatchilah with Shaveh Kesef, Beis Din will never suggest to a person that he pay with Shaveh Kesef when Beis Din sees that he intends to pay with Kesef. However, Beis Din *will* suggest to a Mazik that he give the Neveilah to the Nizak rather than paying for the value of the carcass, since the Mazik never damaged that part of the animal (as we mentioned above), and it still belongs to the Nizak. If a Ganav stole an ox and the ox died, then Beis Din will *not* suggest that he give the carcass back to the one from whom he stole, since he was Koneh the ox through a Shinuy, and therefore giving back the carcass is a form of payment, and Beis Din never suggests to a person that he pay with Shaveh Kesef if he does not think of it himself.

(b) RABEINU CHANANEL and the SHE'ILTOS (end of #111) write that a Ganav and Gazlan must pay back a complete ox or a Kli similar to the one that he stole. He may *not* back with Shaveh Kesef. (Tosfos seems to understand this to be Rashi's intention as well.)

Tosfos explains that the source for Shmuel's ruling, according to this interpretation, is in the Yerushalmi (end of Bava Kama 1:1), which teaches that we learn from the verse, "Asher Gazal" (Vayikra 5:23), that a Ganav must return an item similar to the one which he stole. Therefore, a Ganav must pay back the same type of item that he stole, or the amount of money of the value of the item.

If the verse says that he must return something similar to what he stole, then why should he be able to return money? The Rosh explains that since money may be used easily to purchase a similar item, it is also called "k'Ein she'Gazal." Tosfos Rabeinu Peretz (see Hagahos of Rav Binyamin Zev Prag) cites proof from the Gemara later (66a) that one may pay for a Gezeilah with money.

The RASHBA also cites this explanation, but he implies that the Ganav and Gazlan must pay an *object* similar to what they stole, and they may not pay with money, according to Shmuel.

The Rishonim cite support for this explanation of Shmuel from the incident cited by the Gemara, in which Rav told a Sho'el that he must pay back a "complete ax," based on the logic that "Ein Shamin l'Sho'el."

(c) The RASHBAM cited by Tosfos in Bava Metzia (96b) and by Tosfos Rabeinu Peretz here does not accept the explanation of Rabeinu Chananel, that a Ganav may not pay back with Shaveh Kesef, because the Gemara (5a) explains that a Ganav pays with Meitav, just like a Mazik pays. The Rashbam also does not accept that our Gemara is relying on a verse that is expounded only in the Yerushalmi. Therefore, he explains that Shmuel means only that the Ganav *does* have to pay "Pechas Neveilah," whereas a Mazik does not have to pay Pechas Neveilah, as the Gemara explains earlier (10b).

The logic for this is the same as the logic of the explanation of the Rivam. The reason why a Mazik does not pay Pechas Neveilah is because the Neveilah always remained in the possession of the Nizak, and it lost value in the Nizak's hand. A Ganav, however, is Koneh the object that he breaks, and therefore even the remains of the object are his, and he must reimburse the person from whom he stole with the full value of the object. If the carcass of the animal that he stole depreciates before he gives it, as payment, to the its rightful owner, then it has depreciated in his possession and at his expense, and not at the owner's expense. (The Rashbam suggests that this is the intention of the Yerushalmi cited by Tosfos as well.)

QUESTION: Ula teaches in the name of Rebbi Elazar that if a "Shilya" (placenta, or, more specifically, the fetal membranes in which the fetus forms, which are attached to the placenta) partially emerges from the womb on one day, and completely exits the next day, we must be concerned, mi'Safek, that the birth occurred on the first day and whatever the woman touched on that day are considered Tamei, because she has the status of a Yoledes. The Gemara explains that Rebbi Elazar is teaching us that every part of the Shilya has inside of it some part of the child, and thus if part of the Shilya emerged, then certainly part of the baby also emerged. This implies that if it was possible for part of the Shilya to emerge without any of the baby, then the woman would be Tahor on the first day, because of a Sfek Sfeika. First, perhaps part of the Shilya that emerged did not include any part of the child. Second, even if it did include part of the child, perhaps it did not include most of the child (or, as TOSFOS says, the head of the child; see TOSFOS RABEINU PERETZ).

Why would the woman be Tahor on the first day if there is a Sfek Sfeika concerning her status? We know that the rule is that any Safek Tum'ah in Reshus ha'Yachid is deemed to be Tamei, even when there is a Sfek Sfeika (Taharos 6:4; see Insights to Kesuvos 9a). Hence, the woman should be Tamei in Reshus ha'Yachid even if there is a Sfek Sfeika concerning her Tum'ah. If, on the other hand, she is in Reshus ha'Rabim, then she should be *Tahor* even if we say that every part of the Shilya contains the child and there is only one Safek! (TOSFOS DH d'Ein)


(a) TOSFOS explains that our Sugya is not discussing whether or not the woman is Metamei Taharos (as Rashi explains), but rather it is discussing the prohibition of the woman to her husband.

What is the difference whether the Sugya is discussing Tum'ah for Terumah or Tum'ah to her husband? The SHEV SHEMAITSA (1:12) explains that Tosfos is teaching us that the Isur of a Nidah to her husband is not an Isur of Tum'ah (even though the Isur to her husband comes at the same time as her Tum'ah). Rather, it is a matter of Isur Arayos, and therefore the rules of Safek Tum'ah (being Tamei in Reshus ha'Yachid, and Tahor in Reshus ha'Rabim) do not apply to the Isur to her husband.

Not all Acharonim agree to the Shev Shemaitsa on this point (see SHA'AREI YOSHER 1:13-14). In CHIDUSHEI REBBI SHIMON, the son of Rebbi Shimon Shkop points out that according to the Shev Shemaitsa, if a woman becomes a Safek Nidah in Reshus ha'Rabim, we should consider her Asur to her husband even though she is Tahor and permitted to eat Terumah. Also, the fact that the Isur to her husband remains until she immerses herself in a Mikvah for her Tum'as Nidah indicates that the Isur to her husband *is* related to Tum'ah. He suggests, therefore, to explain Tosfos' intention as follows. REBBI CHAIM OZER GRODZENSKY (Achiezer 1:1:2) writes that even though the Torah decrees that a Safek Tum'ah in Reshus ha'Yachid is Tamei, its Tum'ah is not necessarily related to the type of Tum'ah that caused the Safek. Its Tum'ah, rather, is a Gezeiras ha'Kasuv of Tum'ah due to "Safek Tum'ah." For example, when a Nazir becomes Tamei to a Safek Tum'as Mes in Reshus ha'Yachid, he will *not* need to be Megale'ach. Even though we rule that he is definitely Tamei, his Tum'ah is not Tum'as Mes, but rather the Tum'ah of a Gezeiras ha'Kasuv, and a Nazir is Megale'ach only for Tum'as Mes. Since his Tum'as *Mes* is a Safek, he cannot be Megale'ach.

Accordingly, the same applies to Safek Tum'as Nidah. Even though a Sfek Sfeika of Tum'as Nidah is Tamei in Reshus ha'Yachid for certain, her Tum'ah is not that of a Nidah, but that of a Gezeiras ha'Kasuv. The only Tum'ah that can make a woman Asur to her husband is the Tum'ah of a Nidah. Therefore, with regard to the Isur to her husband she will be Tahor, and permitted to him, if there is a Sfek Sfeika regarding her Tum'as Nidah.

According to this explanation, even if a woman is Tahor from Tum'as Nidah because the Safek regarding her Tum'ah arose in Reshus ha'Rabim, she will be Tahor to her husband as well, since a woman can only be Asur to her husband if she has the *Tum'ah* of a Nidah.

(b) TOSFOS RABEINU PERETZ suggests that we do not apply the rule of Safek Tum'ah in Reshus ha'Yachid or in Reshus ha'Rabim to a Safek that arises regarding the woman's status as a Nidah. The rule applies only to questions regarding whether a person *came in contact* with Tum'ah and might therefore be Tamei. It does not apply to questions whether or not the Dam Nidah came out of the woman's body, since the Dam does not make the woman Tamei through contact with it, but rather through the fact that it emerged from her body.

This principle is based on what Tosfos teaches in Nidah (2a, DH m'Es l'Es, and 17b, DH v'Ein).

(c) From the words of RASHI (DH d'Ein), we might be able to infer a new approach. Rashi does not call the questionable birth a Sfek Sfeika. Rather, he calls it "two Chumros." Rashi might mean that if part of a Shilya does not necessarily contain part of the child, then it is so far-fetched to say that most of the child was in the small part of Shilya that emerged from the womb that it does not warrant being considered a Safek altogether. Since we lack legitimate cause for concern that the woman is Tamei, even in Reshus ha'Yachid the woman would be Tahor. (See Insights to Kesuvos 9a.)

If this is true, then Rashi might have explained that our Sugya requires a Rov of the child to be born in order for there to be Tum'as Leidah, following his own view. As Tosfos Rabeinu Peretz points out, it seems from other Sugyos that it would suffice for the *head* to emerge for there to be Tum'ah (and not a Rov of the baby). Rashi, however, cannot explain that the birth of the head creates Tum'ah, because then our Sugya would be dealing with a legitimate Sfek Sfeika -- first, whether any part of the child was in the Shilya, and, second, even if some part was in the Shilya, maybe that part was not the head. If it is a Sfek Sfeika, then we should rule l'Chumra in Reshus ha'Yachid, as Tosfos asks.

Rashi therefore explains that we are dealing with a single Safek: was or was not most of the child in the part of the Shiyla that emerged?

Rebbi AKIVA EIGER asks that according to Rashi who holds that most of the child must be born in order to make the mother Tamei, then there is only a single Safek regarding the Tum'ah, and not a Sfek Sfeika. Why, then, should we be more lenient even if it is possible for part of a Shilya not to have any part of the child in it?

Rashi answers this by saying that the reason we would be lenient in such a case is not because of a Sfek Sfeika, but because the possibility the most of the child was in the part that emerged would be too removed to consider it a Safek. (M. Kornfeld)


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