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Rosh Kollel: Rabbi Mordecai Kornfeld

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Bava Kama 78


(a) Question: Rabah taught, wherever the Torah says "Seh", this excludes Kilayim - to what does he refer?
1. If by Kodshim - "An ox or lamb" excludes Kilayim!
2. If by Ma'aser (of animals) - we learn from a Gezeirah Shavah "Tachas-Tachas" from Kodshim!
3. If by a firstborn (which is automatically a sacrifice) - we learn from a Gezeirah Shavah "Ha'avara-Ha'avara" from Ma'aser!
i. Alternatively, we can learn from Nidmeh to Kilayim.
ii. A firstborn Nidmeh is not sanctified - "Only the firstborn of an ox" - the ox and its firstborn must both look like oxen;
iii. All the more so, a firstborn Kilayim is not sanctified!
(b) Answer: Rabah taught regarding a firstborn donkey.
1. (Mishnah): The following are not considered as a Seh to redeem a firstborn donkey (even if they are worth less than the donkey): a calf; a Chayah; a slaughtered Seh; a Treifah; Kilayim; a Koy (a crossbreed of a deer and goat).
(c) Question: According to R. Elazar (who holds that one may redeem a firstborn donkey with Kilayim), what does Rabah's rule teach?
1. (Mishnah - R. Elazar): One may redeem a firstborn donkey with Kilayim, because it is a Seh.
(d) Answer: Rabah's rule excludes a Tamei species born from a Tamei father and Tahor mother.
1. Rabah's rule is not needed according to R. Yehoshua.
i. R. Yehoshua learns from "Seh of sheep (plural)" and "Seh of goats" that the child is only considered a Seh if both parents are sheep (or both are goats).
(e) Question: Can a Tahor animal really become pregnant from a Tamei animal?

(f) Answer: It can become pregnant from a (Tahor) animal which has uncloven hooves. (R. Shimon calls such an animal Tamei, and forbids eating it.)
(a) Question (Rava): Reuven accepted on himself to bring a burnt-offering; he separated an ox for this, and it was stolen. According to Chachamim, can the thief exempt himself by returning a lamb; according to R. Eliezer ben Azaryah, can the thief exempt himself by returning a bird?
1. (Mishnah): 'I accept on myself to bring a burnt-offering' - he must bring a lamb (or another animal);
i. R. Eliezer ben Azaryah says, he may bring a pigeon or dove.
2. Summation of question: Do we say that Reuven never specified what type of burnt-offering he will bring, so the thief may return any valid species?
i. Or - can Reuven say, I intended to do an ideal Mitzvah (a big sacrifice, you must return a big animal)?
(b) Answer (Rava): The thief can exempt himself by returning a lamb (according to Chachamim) or a bird (according to R. Eliezer ben Azaryah).
(a) (Mishnah): A thief pays double, not 4 or 5, in all the following cases: he sold the animal, except for 1 part in 100;
1. He was a partner in it before stealing it;
2. He slaughtered it improperly, making it Neveilah;
3. He did Nechirah or Ikur (he tore or uprooted the foodpipe and windpipe).
(b) (Gemara) Question: What does it mean, except for 1 part in 100?
(c) Answer #1 (Rav): Except for something that is permitted through slaughter.
(d) Answer #2 (Levi): (Even) except for its shearings.
1. Support (Beraisa): (Even) except for its shearings.
(e) Question (Beraisa): A thief does not pay 4 or 5 if he sold it except for its foreleg, hind leg, horn or shearings;
1. Rebbi says, he only pays 4 or 5 if he sold everything necessary for slaughter (i.e. he did not retain anything whose removal would make the animal Neveilah);
2. R. Shimon ben Elazar says, if he retained its horn, he does not pay 4 or 5; if he retained the shearings, he pays 4 or 5.
3. Levi is as the first Tana - but Rav is not as any Tana!
(f) Answer: Rav holds as the following Tana.
1. (Beraisa - R. Shimon ben Elazar): A thief does not pay 4 or 5 if he sold it except for its foreleg or hind leg; he does pay if he retained its horn or shearings.
(g) Question: On what do the Tana'im argue?
(h) Answer: The first Tana learns "And he slaughtered it" - all of it; "or he sold it" - all of it;
1. Rebbi learns "And he slaughtered it" - whatever is necessary for slaughter; "Or he sold it" - this is as slaughter (he must sell whatever is necessary for slaughter);
2. R. Shimon ben Elazar (in the first Beraisa) holds that the horn is a remnant (rendering the sale incomplete, which exempts him), for it was not standing to be cut off from the animal;
i. The shearings are not remnants, for they were standing to be cut off (so it is as if he sold the entire animal).
3. R. Shimon ben Elazar (in the second Beraisa) holds that the legs are remnants, because they are only permitted through slaughter; the horns and shearings are not remnants, because they are permitted without slaughter.
4. Question: R. Shimon ben Elazar contradicts himself!
5. Answer: The Tana'im (of the 2 Beraisos) argue on what R. Shimon ben Elazar held.
(a) (Beraisa): A thief is liable for all the following animals: it is missing a limb, or lame, or blind; the animal of partners;
1. Partners that stole are exempt.
(b) Contradiction (Beraisa): Partners that stole are liable!
(c) Answer #1 (Rav Nachman): A man that stole from his partner is exempt; a partner that steals from someone else is liable.
(d) Question (Rava - Beraisa): One might have thought, a man that stole from his partner, or partners that stole would be liable - "And he slaughtered it", he is only liable if he slaughtered an entirely stolen animal.
(e) Answer #2 (Rav Nachman): Rather, 2 partners stole, 1 of them slaughtered. If the other authorized him to slaughter, both are liable; if not, they are exempt.
(f) Questions (R. Yirmeyah): What is the law in the following cases: he sold the animal except for 30 days (during which the thief may work with it);
1. He retained the right to collect any work done with it (but the buyer may slaughter it whenever he wants);
2. He retained its fetus.
3. This last question is not according to the opinion that a fetus is as a limb of its mother - he surely exempts the thief, as if he retained a limb of the mother. The question is according to the opinion that a fetus is not as a limb of its mother: 4. [Version #1: Do we say, since it is connected to the mother, it is a remnant (rendering the sale incomplete);
i. Or - since it is standing to separate from the mother, it is not a remnant?]
5. [Version #2: Do we say, since it is not as a limb of its mother - therefore, it is not a remnant?
i. Or - do we say, since it needs to become permitted through slaughter of the mother, it is a part of the mother (and is a remnant)?]
(g) These questions are unsettled.
(h) Question (Rav Papa): A thief stole an animal, cut off a limb and sold the (rest of the) animal - what is the law?
1. Do we say - since he did not sell the entire animal he stole, he is exempt (from 4 or 5)?
2. Or - since he did not retain anything for himself in what he sells, he is liable? 3. This question is unsettled.
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