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Bava Kama, 39


QUESTION: The Gemara cites a Beraisa which states that if the Shor of a Cheresh, Shoteh, or Katan gores someone else's Shor, "Rebbi Yakov pays Chatzi Nezek." The Gemara asks what is Rebbi Yakov paying for; it was not his ox that gored! The Gemara answers that the Beraisa should read instead, "Rebbi Yakov *says* [that one] pays Chatzi Nezek."

If the Tana of the Beraisa made such an obvious mistake, why does the Gemara quote the original version of the Beraisa? The Gemara should have emended the Beraisa before recording it in the Gemara! (HAGAHOS YA'AVETZ)


(a) The YA'AVETZ answers that even when the Gemara emends the text of a Beraisa by saying "Ela Eima..." ("rather, say..."), it does not mean that the original version was a mistake. Rather, it means that the intention of the Beraisa is as such, and even without emending it, the Beraisa can be read in a way that conveys this meaning.

The Ya'avetz explains that Rebbi Yakov was an Av Beis Din, and in that capacity he was considered responsible for Yesomim (see beginning of 37a). Therefore, he acted as the Apotropos for the Yesomim who came to his court, and when their Shor gored, he paid out of his own funds to cover their Chiyuv of Chatzi Nezek (as the Gemara earlier requires the Apotropos to pay; according to Rebbi Yochanan, he paid out of the estate of the Yesomim).

Tosfos in a number of places (see Yevamos 25b, DH b'Omer) makes a similar point regarding the word "b'Omer" in the Gemara's explanation of a statement of a Tana or Amora. The Gemara does not mean to say that the person actually said it, but that this is what he meant by what he did say. Tosfos (Kesuvos 4b, DH u'Mi) and the Ran (Nedarim 46a, DH Teni Nadar) write that the same sometimes applies when the Gemara says "Teni;" it does not mean to correct the wording of the Beraisa, but merely to explain the meaning of the Beraisa. We find the same explanation regarding the word "Eima" (the term used in our Sugya) in Tosfos in Bava Basra (80b, DH Taritz v'Eima); it does not mean that we should correct the wording of the Beraisa, but that we should understand the intention of the words of the Beraisa as such.

RAV YOSEF ENGEL in BEIS HA'OTZER (1:179) explains at length how the Gemara uses the word "Eima" with such a meaning in dozens of places; the Gemara either is saying that the Beraisa really means this without having to emend the words of the Beraisa, or it is saying that the Beraisa is also true without the emendation, but it is teaching something else (through Kabalah). The VILNA GA'ON takes this further and says that when the Gemara uses the term, "Chesurei Mechsera v'Hachi Ketani," it does not mean to reject the original reading of the Beraisa, but rather the original reading is also true, and it either can be read to mean what the Gemara says that it means, or it is teaching a different point.

(b) The PANIM YAFOS (end of Vayishlach) suggests an interpretation with a Kabalistic connotation of the original reading of the Beraisa. The Beraisa is teaching that Yakov Avinu and his descendants are suffering for the half-damage (Chatzi Nezek) for which Yakov Avinu was responsible.

On the verse, "v'Achos Lotan Timna" -- "the sister of Lotan was Timna" (Bereishis 36:22), Rashi explains that Timna wanted to marry into the family of the Avos. When she was not accepted by Yakov or his children, she went and became the Pilegesh (concubine) of Elifaz, the son of Esav. The ARIZAL writes that the wisdom that is found among the nations (see Eichah Rabah 2) comes from the wisdom that was rejected and was left "behind" the wisdom of Hashem that He granted to Yisrael. The Panim Yafos asserts that this is alluded to in the above verse. The letters that spell "Lotan" are each one letter "behind" the letters of "Chochmah." The word "sister" also alludes to Chochmah (Mishlei 7:4; see Berachos 57a). Timna, who represents the "rejected wisdom" of the nations, first approached Yakov Avinu to rectify and perfect that wisdom. Yakov Avinu was only able to help her partially, by rectifying the "Taf" and "Mem" of "Timna," by virtue of his being an "Ish *Tam*" (Bereishis 25:27), which is why "Yakov Avinu Lo *Mes*" ("Tam" and "Mes" comprising the letters "Taf" and "Mem"), since he overpowered the opposing forces with that half of "Timna." However, he was not able to rectify the letters "Nun" and "Ayin" of "Timna," and therefore Timna took that part of the remaining wisdom to the nations of the world by marrying Elifaz. "Ayin" and "Nun" are the root of "Ani," and that is why Elifaz was able to take away all of the possessions of Yakov, leaving him an "Ani," a poor person, since he had control over the "Ayin-Nun" of Timna. When the Egyptians said, "Havah Nischakmah Lo" -- "Let us make ourselves wise over them" (Shemos 1:10), they were using this wisdom to cause "Inuy" (from "Ayin-Nun"), affliction, to the Jewish people.

This is what the Beraisa is alluding to when it says that "Rebbi *Yakov* pays half of the damage," meaning that he is responsible for the damage caused by the other half of Timna whom he rejected.

(c) The Rishonim explain that Rebbi Yakov is trying to teach that one pays *only* Chatzi Nezek and not *all* of the Nezek. He is not teaching that one must pay half and not *nothing*. Rashi and Tosfos explain that this is learned from the fact that Rebbi Yakov adds the words "Chatzi Nezek," and does not say merely that one is obligated.

The truth is that Rebbi Yakov does not use the term "*Mechayev* Chatzi Nezek," but rather "*Meshalem* Chatzi Nezek." The reason for this is because he uses that term in the Beraisa later in reaction to Rebbi Yehudah who says "Mechayev." He cannot use the same word as Rebbi Yehudah, since he is explaining (or arguing with) Rebbi Yehudah, and therefore he uses the word "Meshalem." The word "Meshalem," though, cannot be used by itself, since "Meshalem" does not mean a ruling of obligated or exempt, but rather it refers to an amount that must be paid. Therefore, the word "Meshalem" always appears together with an amount that must be paid. How, then, can we learn from the fact that he adds the words "Chatzi Nezek" that Rebbi Yakov means to exclude Nezek Shalem? Perhaps he added the words "Chatzi Nezek" because he uses the term "Meshalem" and he must complete his sentence!

Perhaps it was for this reason that the Beraisa left out the word "Amar," and instead said that "Rebbi Yakov pays Chatzi Nezek," using the word "Meshalem" as a transitive verb (that means that he "makes others pay") similar to the word "Mechayev." If "Meshalem" is used in such a manner, then it does not have to be associated with an amount ("Chatzi Nezek") but can simply mean that the person is obligated, just like the word "Mechayev." It is from the fact that the Beraisa leaves out the word "Amar" that we can infer that the emphasis is on paying Chatzi Nezek as opposed to paying Nezek Shalem (in contrast to emphasizing Chatzi Nezek as opposed to being exempt altogether).

QUESTION: The Gemara cites a Beraisa in which Rebbi Yakov states that if the Shor of a Cheresh, Shoteh, or Katan gores someone else's Shor, the Apotropos must pay only Chatzi Nezek (and not Nezek Shalem; see RASHI DH b'Mai Askinan, and TOSFOS DH Iy). Rava explains that Rebbi Yakov is trying to teach us that even if the Shor is a Mu'ad, he is obligated to pay only Chatzi Nezek, as long as he guarded the Shor with a "Shemirah Pechusah," a small amount of Shemirah. This is because Rebbi Yakov holds that the owner of a Shor Tam is Chayav if it does damage while being guarded with a "Shemirah Pechusah," and he holds that the "Tzad Tamus," the Tam-element of the Shor, remains in the Shor even when it becomes a Mu'ad.

If Rebbi Yakov's main point is that it suffices to guard a Mu'ad with a "Shemirah Pechusah" and therefore the owner pays only Chatzi Nezek (for the Tzad Tamus in it) and not Nezek Shalem, then why does he teach us this Halachah only with regard to a Shor that belongs to a Cheresh, Shoteh, or Katan? The same should be true no matter who owns the Shor! He should have taught this Halachah with regard to a normal Shor with a normal owner! (PNEI YEHOSHUA)


(a) The PNEI YEHOSHUA answers that one would think that Beis Din would be more lenient when the Shor belongs to a Cheresh, Shoteh, or Katan, and that Beis Din would exempt the Apotropos even for the damage caused by the Tamus-part of the animal when it was guarded with a "Shemirah Pechusah," because otherwise people will refrain accepting to become an Apotropos for the Shor of a Cheresh, Shoteh, and Katan (because he will have to guard it with a Shemirah Me'ulah). Rebbi Yakov teaches that even when the Shor belongs to a Cheresh, Shoteh, or Katan, the Apotropos must still pay for the "Tzad Tamus."

(b) The Gemara later (40a) concludes that Rebbi Yakov might actually be teaching us simply that a Shor Tam of a Cheresh, Shoteh, or Katan must pay Chatzi Nezek, because of the rule that "Ma'amidin Apotropos l'Tam." (See Tosfos DH ad'Mukei.)

The Gemara explains that the reason Rava said that Rebbi Yakov obligates one to pay Chatzi Nezek when the Shor is a Mu'ad, and an Apotropos guards it with a "Shemirah Pechusah," is because it was clear to Rava that Rebbi Yakov agrees to Rebbi Yehudah's opinions regarding "Tzad Tamus" and "Shemirah Pechusah," just like he agrees to Rebbi Yehudah's opinion regarding the obligation of an Apotropos to pay for damages of a Tam.

Accordingly, Rava might not mean to say that the Beraisa of Rebbi Yakov is actually discussing a Shor Mu'ad that was Mazik while being guarded with a "Shemirah Pechusah," but rather he might mean simply that Rebbi Yakov's ruling would be valid even if the Shor was a Mu'ad and the owner guarded it with a "Shemirah Pechusah," since Rebbi Yakov agrees to Rebbi Yehudah's opinions. However, Rava agrees that the Beraisa of Rebbi Yakov is indeed discussing a Shor Tam, and that it is teaching that an Apotropos must pay for the damages of a Tam, and that is why Rebbi Yakov mentions the damages caused by the Shor of a Cheresh, Shoteh, or Katan. (M. Kornfeld)

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