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Bava Kama 45


(a) (Mishnah): Reuven's ox was being brought out to be stoned; he made it Hekdesh - it is not Hekdesh; if he slaughtered it, the meat is forbidden.
(b) Before a verdict was reached, if he made it Hekdesh, it is Hekdesh; if he slaughtered it, the meat is permitted.
(c) If he gave it over to a free watchman, borrower, paid watchman or renter - they are as the owner: a Mu'ad pays full damage, a Tam pays half-damage.
(d) (Gemara - Beraisa): Reuven's ox killed - before the final verdict, if he sold it, it is sold; if he made it Hekdesh, it is Hekdesh; if he slaughtered it, the meat is permitted; if the watchman returned it to Reuven's house, it is considered returned;
1. After the verdict (if Reuven did these things) - it is not sold, it is not Hekdesh, the meat is forbidden; if the watchman returned it, it is not considered returned.
2. R. Yakov says, if the watchman returned it, it is considered returned.
(e) Suggestion: Chachamim say that a watchman cannot return something deposited by him after it became forbidden to benefit from (rather, he must pay); R. Yakov says, he can.
(f) Rejection (Rabah): All agree, one can return something that became forbidden to benefit from;
1. [Version #1 (Rashi): If that was the argument, Chachamim should hold that one may not return Chametz after Pesach (but they do not).]
2. [Version #2 (Tosfos): If that was the argument, the argument (here) should have been taught regarding Chametz on Pesach (so we could not think they argue on something else).]
(g) Rather, they argue whether Beis Din can sentence an ox that is not there.
1. Chachamim say they may not sentence an ox in its absence - Reuven can say, you made me lose my ox - had you returned it to me, I would have hid it, it would not have been sentenced;
2. R. Yakov says, an ox may be sentenced in its absence - in any case, it would have been sentenced.
(h) Question: From where do Chachamim learn?
(i) Answer: "The ox will be stoned, and also the owner will die" - execution of an ox is as execution of the owner;
1. Just as we only sentence a man when he is present, also by an ox.
2. R. Yakov says, this only applies to a man, who can make claims - it is unreasonable to learn this by an ox!
(a) (Mishnah): If he gave the ox to a free watchman, a borrower,...
(b) (Beraisa): Four watchmen are in place of the owner: a free watchman, a borrower, a paid watchman, and a renter.
1. If the animal is Tam - if it kills, it is killed, Kofer is not paid;
2. If the animal is Mu'ad - if it kills, it is killed, Kofer is paid;
i. The watchman must compensate the owner for the loss of his ox, except for a free watchman.
(c) Question: What is the case?
1. Suggestion: If he guarded the ox - no watchman should have to compensate the owner!
2. Suggestion: If he did not guard the ox - even a free watchman must repay the value!
(d) Answer: The case is, he guarded it poorly.
1. This is enough for a free watchman, not for other watchmen.
(e) Question: Who is the Tana of the Beraisa?
1. Suggestion: If as R. Meir, who says that a renter is as a free watchman - also a renter should be exempt from returning the value of the ox!

2. Suggestion: If as R. Yehudah, who says that a renter is as a paid watchman - all should be exempt from Kofer by a Mu'ad (he holds that a poor guarding suffices for a Mu'ad)!
(f) Answer #1 (Rav Huna bar Chinena): The Beraisa is R. Elazar, who says that a Mu'ad cannot be guarded, it must be killed;
1. Regarding a renter, he holds as R. Yehudah, he is as a paid watchman.
(g) Answer #2 (Abaye): Really he holds as R. Meir, as Rabah bar Avuha switches their opinions.
1. (Rabah bar Avuha): R. Meir says, a renter is as a paid watchman; R. Yehudah says, he is as a free watchman.
(h) (R. Elazar): Reuven handed his ox over to Shimon, a free watchman. If it damaged, Shimon is liable; if it was damaged, he is exempt.
(i) Question: What is the case?
1. If he accepted to guard it - he should be liable even if it is damaged!
2. If he did not accept to guard it - he should be exempt even if it damaged!
(j) Answer (Rava): Really, he accepted to guard it - the case is, he knew it was a gorer.
1. He expected to have to guard it from damaging - he did not expect to have to guard it from being damaged (since animals are afraid of it)!
(a) (Mishnah - R. Meir): Reuven tied his ox with a rope, or locked (a gate) in front of properly, and it escaped and damaged - he is liable, whether it is Tam or Mu'ad;
(b) R. Yehudah says, a Tam is liable, a Mu'ad is exempt - "If he will not guard it", and this is guarded!
(c) R. Elazar says, a Mu'ad cannot be guarded, it must be killed.
(d) (Gemara) Question: What is R. Meir's reason?
(e) Answer: He holds, people normally do not guard their oxen; the Torah said that a Tam must pay - it requires a minimal guarding. By Mu'ad it says "If he will not guard it", that it must be guarded well; we learn Tam (from a Gezeirah Shavah "Yigach-Yigach") from Mu'ad.
1. R. Yehudah holds, people normally guard their oxen (minimally); the Torah said that a Tam must pay - it must be guarded well. By Mu'ad it says "If he will not guard it", also saying that is must be guarded well - since this is a second verse coming to include the same thing, it really comes to exclude, i.e. a poor guarding suffices for a Mu'ad.
i. Question: We should learn Tam from Mu'ad, through the Gezeirah Shavah!
ii. By Mu'ad it says "If he will not guard it" - a minimal guarding is not enough for anything else.
iii. Question: But we need the verse to teach that one who did not guard it is liable!
iv. Answer: It could have said "If he will not guard"; "it" is extra, to say that a minimal guarding only suffices for a Mu'ad.
(f) (Beraisa - R. Eliezer ben Yakov): A minimal guarding suffices for both Tam and Mu'ad.
1. Question: How does he learn?
2. Answer: He learns that a minimal guarding suffices for a Mu'ad - as R. Yehudah;
i. He learns Tam from Mu'ad from the Gezeirah Shavah - as R. Meir.
(g) (Rav Ada bar Ahavah): R. Yehudah only exempts the additional payment of a Mu'ad side with a minimal guarding, not the half-damage that a Tam pays.
(h) (Rav): An ox Mu'ad to gore with the right horn is not Mu'ad to gore with the left horn.
(i) Question: (Rav cannot teach about paying half or full damage - this follows simply from a Mishnah (Mu'ad for animals is not Mu'ad for people)! Surely, he came to teach about how well it must be guarded.) As whom does Rav hold?
1. If as R. Meir - but he holds that both Tam and Mu'ad need a proper guarding!
2. If as R. Yehudah - even the right horn has both a Tam and Mu'ad side (so he could have taught about the levels of guarding the right horn alone)!
(j) Answer: Really, he holds as R. Yehudah; Rav does not hold as Rav Ada bar Ahavah;
1. This is the only case in which R. Yehudah holds that a Mu'ad has a Tam side.
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