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Bava Kama 91

BAVA KAMA 91 (9 Cheshvan 5762) - dedicated in honor of the Bar-Mitzvah of Shmuel Tavin, by his parents. May he continue to grow in Torah and the fear of Hashem, and bring them true Nachas. Mazel Tov, also, on the birth and upcoming Bris of Shmuel's brother, may his parents merit to raise him "l'Torah l'Chupah ul'Ma'asim Tovim!"


(a) (Beraisa): A Tam ox killed and damaged - we judge it to stone it, not to pay the damage;
(b) A Mu'ad ox killed and damaged - first we judge it to pay the damage, then we judge it to stone it;
1. If first they judged it to stone it, they do not then judge it to pay the damage.
(c) Question: Even if they first judged it to stone it, why not then judge it to pay the damage?
(d) Answer #1 (Rava citing Rabanan): The Beraisa is according to Shimon ha'Temani, who expounds 'just as the judges and witnesses can see his fist' - implying, Beis Din must evaluate the item used to damage;
1. Once Beis Din sentences the ox to be stoned, we do not delay to evaluate whether it was fitting to cause the damage.
(e) Answer #2 (Rava): The Beraisa is even according to R. Akiva - the case is, the owner fled (and we cannot obligate a man who is not here).
(f) Question: If he fled, even if they didn't judge the ox to stone it, we cannot judge the damage!
(g) Answer: The case is, the owner fled after testimony was accepted.
(h) Question: If the owner is not here, who will pay?
(i) Answer: The damagee will rent out the ox for plowing.
(j) Question: If so, even by a Tam, we should first judge it to pay the damage through plowing, then judge it to stone it!
(k) Answer (Rav Mari brei d'Rav Kahana): It must be that money which can be earned through plowing is not considered as part of the ox (rather as other property of the owner, which is not used to pay for damage of a Tam).
(a) Question: Must we evaluate (whether a damaging object was fitting to cause the damage)?
1. Perhaps we only evaluate by killing, for not everything can kill, but anything can (do some) damage;
2. Or - also for damage, we must evaluate the object.
(b) Answer #1 (Mishnah): The Torah spoke of a (standard) pit to teach that just as a pit is 10 Tefachim deep, which can kill, in all cases (pits of other shapes) one is liable for 10 Tefachim.
1. If an animal falls in a pit less than 10 Tefachim - if it dies he is exempt, if it is hurt, he is liable.
2. Suggestion: The Mishnah considers from below (from shallow to deep), a pit between 1 Tefach and (but not including) 10 Tefachim is liable for damage, not for death;
i. This shows, any size can damage, no evaluation is needed!
(c) Rejection: No, the Mishnah considers from above (from deep to shallow), a pit of 10 Tefachim can kill; slightly less than 10 Tefachim can damage, but cannot kill;
1. By damage, we must evaluate if the object was fitting to damage the injured party.
(d) Answer #2 (Beraisa): A man hit his slave on the eye, blinding him, or on the ear, deafening him - the slave goes free;
1. If he hit him near the eye and now the slave cannot see, or near the ear and now the slave cannot hear - the slave does not go free.
2. Question: Why not?
i. Suggestion: We say that the blow was not enough to blind or deafen him, because damages need evaluation.
(e) Rejection: No - we say that the slave blinded or deafened himself from fright.
1. (Beraisa): One who frightens someone - Beis Din does not make him pay, but he is liable at the hands of Heaven;
i. If he was Toke'ah (hit; some explain, sounded a shofar) in his ear and deafened him, he is exempt;
ii. If he was holding him when he was Toke'ah, he is liable.
(f) Answer #3 (Beraisa): For 5 payments we evaluate and make the damager pay immediately; for medical expenses and unemployment, we estimate how much they will be until the victim recovers;
1. If he did not recover as quickly as expected, he only gets the amount of the evaluation;
2. If recovered sooner than expected, he gets the entire evaluation.
i. This teaches that we evaluate for damages!
(g) Rejection: This we knew, that we estimate how long he will be bedridden - the question was, must we evaluate if the object used to damage is fitting to damage.
(h) Answer #4 (Beraisa - Shimon ha'Temani): "When a man will hit his fellow man with a rock or his fist" - just as the judges and witnesses can see his fist (whether it is fitting to cause the damage that resulted), also anything used to hit, the judges and witnesses must see it.
1. This teaches that we evaluate for damages.
(i) (Beraisa): If recovered sooner than expected, he gets the entire evaluation.
(j) This supports Rava.
1. (Rava): We estimated that a man will be bedridden the entire day, and he recovered in the middle of the day and was able to work - this was a kindness Hash-m bestowed on him, he receives unemployment for the entire day.
(a) (Mishnah): If he spit at him, and the spit reached him...
(b) (Rav Papa): This is only if the spit landed on him - if it landed on his clothing, he is exempt.
(c) Question: Even if it lands on his clothing, this is no less than verbal embarrassment!
(d) Answer (R. Yosi bar Avin): Our Mishnah teaches that one is exempt for verbal embarrassment.
(e) (Mishnah): Everything is according to his importance...
(f) Question: Does (this) first Tana come to be lenient or stringent?
1. If to be lenient - less distinguished people receive less than 400;
2. If to be stringent - more distinguished people receive more than 400.
(g) Answer: (Mishnah - R. Akiva): Even the poorest Benei Yisrael are viewed as rich people that lost their money, for they descend from Avraham, Yitzchak and Yakov - implying that the first Tana came to be lenient.
(h) (Mishnah): There was a case in which a man uncovered a woman's head...(R. Akiva agreed to give him time to pay).
(i) Question: Do we really give time to pay?!
1. (R. Chanina): One who damages someone - we do not give him to time to pay.
(j) Answer: That refers to damage which causes monetary loss, not to embarrassment, which causes no loss.
(a) (Mishnah): The man waited for her, and saw her by the entrance to her courtyard... (R. Akiva...a person may not injure himself...)
(b) Contradiction (Beraisa - R. Akiva): You toiled for naught - a person may injure himself.
(c) Answer (Rava): A person may not bodily injure himself, but he may embarrass himself.
(d) Question: But the Mishnah speaks of embarrassment, and R. Akiva said that a person may not injure himself!

(e) Answer: He told him thusly: not only regarding embarrassment, by which Reuven may embarrass himself, if Shimon embarrasses him he is liable;
1. Even regarding bodily damage, by which Reuven may not damage himself, if Shimon damages him, he is liable (even though Reuven damages himself, showing his indifference to damage).
(f) Question: Is it really true that one may not damage himself?
1. (Beraisa) Suggestion: One who swears to harm himself and does not harm himself should be exempt.
2. Rejection: "(One who swears) to harm or to do good" - just as doing good is optional, also harming;
i. This teaches about one who swears to harm himself (that the oath is binding).
(g) Answer (Shmuel): The Beraisa speaks of an oath to fast.
(h) Question: The corresponding case of an oath regarding others would be to make them fast - is that possible?!
(i) Answer: Yes - he locks them in a room without food!
(j) Question (Beraisa): What is the case of (swearing to) harm others? 'I will hit Ploni, I will bruise his brain'.
(k) Answer: Tana'im argue whether a person may damage himself.
(l) Question: Who is the Tana that says that a person may not damage himself?
1. Suggestion: The following Tana.
i. (Beraisa - R. Elazar): "The blood of your souls I will demand" - I will demand of your souls, your blood (that you yourselves spilled).
2. Rejection: Perhaps only suicide is forbidden, but not wounding oneself.
(m) Answer #1: Rather, the following Tana.
1. (Beraisa): We may tear clothing on account of one that died; this is not forbidden as 'ways of the Emori (a Kana'ani nation)';
2. R. Elazar says, one who tears too much transgresses "Do not (wastefully) destroy".
i. All the more so, one who damages his body transgresses this!
(n) Rejection: Perhaps damaging one's body is less severe, for the damage can heal, unlike tearing clothing.
1. R. Yochanan would call his garments 'what honors me'.
2. When Rav Chisda would walk among thorns, he would lift his garment, because damage to his body heals, damage to his clothes does not heal.
(o) Answer #2: Rather, the following Tana. says that a person may not damage himself.
1. (Beraisa - R. Eliezer ha'Kapar b'Rebbi) Question: "(The Kohen) will atone for (the Nazir who had become Tamei) for having sinned on the soul" - against which soul did he sin?
2. Answer (R. Eliezer): (Against his own soul), for having denied himself wine.
i. One who denies himself wine is called a sinner - all the more so, one who (fasts, thereby) denying himself of all food!
(a) (Mishnah): One who cuts his young trees...
(b) (Rabah bar bar Chanah - Beraisa): Reuven claims against Shimon: 'You killed my ox, (or) you cut my young trees'; Shimon answers, 'You told me to do so'! - he is exempt.
(c) Objection (Rav): We cannot say that a damager can exempt himself by saying thusly!
(d) Rabah bar bar Chanah: There is a mistake in the text, I will no longer recite the Beraisa.
(e) Rav: The text is correct - the Beraisa speaks of an ox that must be killed or a tree that must be cut.
(f) Question: If so, what was Reuven's claim?
(g) Answer: He wanted to do the Mitzvah himself.
1. (Beraisa): "He will spill (the blood of a Chayah or bird) and cover" - the one who slaughters covers;
2. R. Gamliel once obligated a man to pay 10 gold coins for covering the blood of what another man had slaughtered.
(h) (Rav): It is forbidden to cut a date tree that bears a Kav of dates.
(i) Question (Beraisa): An olive tree that bears a quarter Kav of olives may not be cut.
(j) Answer: The amount for olive trees is smaller, for olives are more significant than dates.
(k) R. Chanina: My son died because he cut a fig tree prematurely.
(l) (Ravina): If the wood is worth more than the fruit, it may be cut.
1. Support (Beraisa): "Only a tree that you know" - this is a fruit-bearing tree (you may cut it when besieging a city); "that it is not a fruit tree" - this is a barren tree.
2. Question: If we may cut even fruit-bearing trees, why does the verse mention a barren tree?
3. Answer: We may only cut a fruit trees if there are no barren trees there.
4. Suggestion: Perhaps even a tree whose wood is worth more than its fruit may not be cut (if barren trees are around)?
5. Rejection: "Only" excludes this.
(m) Shmuel's sharecropper brought him dates; he tasted wine in them, and asked why.
1. The sharecropper: The trees are between vines.
2. Shmuel: They are weakening the vines - uproot them!
(n) Rav Chisda saw date trees among his vines - he told his sharecropper to uproot them, because vines are more profitable than date trees.
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