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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 4

BAVA KAMA 4 (11 Av) - dedicated by Eitan Fish in memory of his illustrious ancestor, Hagaon Rav Yitzchak Blazer ("Reb Itzele Peterburger"), author of "Kochevei Or" and "Pri Yitzchak" and one of the foremost Talmidim of Hagaon Rav Yisrael Salanter, Zatza"l. Reb Itzele passed away on 11 Av 5667 (1907) in Yerushalayim.



(a) Rav Yehudah (who establishes 'Shor le'Karno, u'Mav'eh le'Shino') explains the continuation of our Mishnah like this 'Lo Re'i ha'Keren she'Ein Hana'ah le'Hezeiko, ki'Re'i ha'Shen, she'Yesh Hana'ah le'Hezeiko - ve'Lo Re'i ha'Shen, she'Ein Kavanaso Le'hazik, ki'Re'i ha'Keren', she'Kavanaso Le'hazik'.

(b) We reject this second D'rashah - on the basis of a 'Kal va'Chomer' (if one is Chayav even when the animal did not intend to damage, then how much more so when it did)?

(c) We really could ask the same Kashya on the first D'rashah (where 'Yesh Hana'ah le'Hezeiko' is used as a reason to exempt the owner from payment, when really it ought to be a reason to obligate him). We ask it on the second one - because we will counter it with 'Eved ve'Ishah', which is relevant to the second D'rashah but not to the first.

(d) We cannot simply invert the order and say that we cannot learn Keren where the animal does not intend to damage, from Keren, where it does - because that is not how the format of 'Lo Re'i Zeh ki'Re'i Zeh' works. It always means that the latter case is different than the first one, and cannot be learned from it (and not vice-versa).

(a) What an Eved Cana'ani and a married woman have in common with regard to the Din of damages is - that even though they intend to damage, the master and the husband respectively are exempt from paying.

(b) We refute the suggestion that Eved ve'Ishah will prove that Kavanaso Le'hazik is not always sufficient reason to obligate payment - because the reason there is not in spite of the fact that they intend to damage, but rather because of it (due to the fear that whenever the Eved falls out with his master, and the woman, with her husband, they have easy recourse to revenge by damaging other people's property and forcing their master and husband to pay.

(c) So we invert the reasons and learn 'Lo Re'i ha'Keren she'Kavanasan Le'hazik ki'Re'i ha'Shen she'Ein Kavanaso Le'hazik ... '. We refute the suggestion that the Tana omits Regel, because it relies on the Seifa, where he writes "ke'she'Hizik, Chav ha'Mazik Le'shalem ... ' to include it - because there is no plausible reason for him not to mention Regel explicitly alongside Keren and Shen.

(a) So we conclude that Shor does not refer to Keren (according to Shmuel) - but to Regel.

(b) The Tana does not learn ...

1. ... Shen from Regel - because, unlike the latter, it is not 'Hezeiko Matzuy' (the damage is not common).
2. ... Regel from Shen - because, unlike the latter, it is 'Ein Hana'ah le'Hezeiko' (the animal derives no pleasure from the damage that it does).
(c) And the Tana includes Keren in the Seifa "ke'she'Hizik Chav ha'Mazik Le'shalem ... '. He does not include it explicitly in the Reisha - because he only includes damages that are initially Mu'ad, and not those that are first Tam and then Mu'ad.
(a) Sh'muel declines to learn like Rav, in whose opinion Mav'eh refers to Adam, because the Tana mentions Adam later 'Shor ha'Mu'ad ... ve'ha'Adam'. He does not list it explicitly in the Reisha - because he only includes there Nizkei Mamon (damages incurred by a person's property), but not Nizkei ha'Guf (those incurred by the person himself).

(b) According to Rav, having included Adam in the Reisha, the Tana nevertheless saw fit to repeat it in the Seifa - because it belongs there in the list of the five Mu'adim.

(c) Rav explains ...

1. ... 'Lo Harei ha'Shor ke'Harei ha'Mav'eh' to mean - that we cannot learn the Din Nezikin by Adam from Shor, because unlike the former, he does not pay Kofer (due to the fact that he is sentenced to death [be'Meizid] or Galus [be'Shogeg]. See also Tosfos DH 'ki'Re'i').
2. ... 'Lo Harei ha'Mav'eh ke'Harei ha'Shor' - because, unlike the former, he is not obligated to pay for the four things (Tza'ar, Ripuy, Sheves, Boshes) when damaging a person.
(a) The Tana lists the 'Tzad ha'Shaveh' between Shor and Mav'eh as she'Darkan Le'hazik, u'Shemirasan Alecha'. 'Darkan Le'hazik' will apply to ...
1. ... Shor - once it becomes a Mu'ad.
2. ... Adam - when he is asleep (when he is liable to break anything that is lying within his reach).
(b) The problem with the Lashon 'u'Shemirasan Alecha' is - that it is only applicable to Nizkei Mamon, but not to Nizkei ha'Guf.

(c) We cite Karna who includes Adam among the four Avos Nezikin, and according to whom we have to explain this Lashon, even assuming Mav'eh to be Shen (Tosfos DH 'u'le'Ta'amech'). To accommodate Karna and Rav - Rebbi Avahu instructed the Beraisa expert to add to the Mishnah 've'Adam Shemiras Gufo Alav'.




(a) We know that, despite the Pasuk "ki'Kedo'ach Eish Hamasim, Mayim Tav'eh Eish", Mav'eh is not ...
1. ... water (see Tosfos) - because the Navi wrote "Mayim Tav'eh Eish" (feminine singular, pertaining to Eish) and not "Mayim Niv'u Eish" (masculine plural, which would have pertained to water).
2. ... fire - because the Tana refers to 'Hev'er' as Eish, and not 'Mav'eh'.
(b) What the Pasuk means is - 'Just like fire burns things that melt, so does it cause water to bubble (and burn away).

(c) Had we accepted the first contention - the Av would have comprised the Nizak dirtying his clothes in a pool of water that the Mazik poured in the street (which in fact, is a Toldah of Bor).

(d) Mav'eh cannot be fire, as we contended ...

1. ... and Hev'er an explanation - because then there would only be three Avos, and not four.
2. ... Hev'er an explanation, with Shor comprising both Shen and Regel - because, how could the Tana (relating to Shor and Mav'eh) then continue 've'Lo Zeh va'Zeh she'Yesh Bahem Ru'ach Chayim? Since when does fire have a Ru'ach Chayim?
(a) Rebbi Oshaya cites a Beraisa which lists thirteen Avos. Besides the four Shomrim, he adds Nezek, Tza'ar, Ripuy, Sheves and Boshes to the four of our Mishnah?

(b) What makes them all Avos is - the fact that they are all written in the Torah.

(c) The two Avos of Rebbi Oshaya which have exactly the same Din - are a Socher and either a Shomer Sachar or a Shomer Chinam (see Tosfos DH 'Sheloshah-Asar')

(d) The difference between ...

1. ... a Shomer Chinam and a Nosei Sachar is - that the former is Patur from theft and loss, as well as from Onsin, whereas the latter is Patur from Onsin, but not from theft and loss.
2. ... a Nosei Sachar and a Sho'el is - that the former is Patur from Onsin (only), whereas the latter is Chayav even for that.
(a) The Tana of our Mishnah does not list the other nine, according to ...
1. ... Shmuel - because he is only concerned with Nizkei Mamon (damages caused by a person's property), but not Nizkei ha'Guf (damages caused by his body).
2. ... Rav - because he is only concerned with damage of property, but not damage of people.
(b) We know that our Mishnah is confined to damage of property - because Bor is only Chayav for damaging animals that falls into it, but not people ("Shor", 've'Lo Adam').

(c) The Tana does not divide Shor into two, confining the Mishnah to Shor de'Azik Shor, whilst Rebbi Oshaya creates a new sub-category, by adding Shor de'Azik Adam - because, unlike Adam ha'Mazik, where there is a marked distinction between Adam de'Azik Adam (who pays the five things), and Adam de'Azik Shor (who doesn't), there is no difference between Shor de'Azik Adam and Shor de'Azik Shor (so why divide them?).

(d) Nevertheless, Rebbi Oshaya includes the four Shomrim in his list, even though they fall under the category of 'Adam de'Azik Shor' - because they are cases of automatic damage, as opposed to those in our Mishnah, where the Mazik damages manually.

(a) Rebbi Chiya quoting a Beraisa adds another eleven on to Rebbi Oshaya's list. In essence, he is adding a new category of K'nas (where the Mazik is paying a penalty rather than for the actual damage), something which the Tana of our Mishnah and Rebbi Oshaya are not concerned with.

(b) The first four that he lists are Tashlumei Kefel, Tashlumei Arba'ah va'Chamishah, Ganav and Gazlan. It is possible for a Ganav to pay Keren (the principle) without paying Kefel - when he admits to having stolen, in which case (due to the principle 'Modeh bi'K'nas Patur'), he is Patur from paying the Kefel.

(c) The source in the Torah for ...

1. ... Ganav is the Pasuk in Mishpatim "Asher Yarshi'un Elohim Yeshalem Shenayim le'Re'eihu".
2. ... Gazlan is the Pasuk in Vayikra - "ve'Heishiv es ha'Gezeilah Asher Gazal".
(d) Despite the fact that Ganav and Gazlan are Mamon and not K'nas, Rebbi Oshaya did not include them in his list - because they are already included in Shomer Chinam and Sho'el (as we shall soon see).
(a) After Eidim Zomemin, Rebbi Chiya's Tana lists O'nes, Mefateh and Motzi Shem Ra. In the case of ...
1. ... O'nes - the man pays fifty Shekalim.
2. ... Mefateh - the man pays fifty Shekalim.
3. ... Motzi Shem Ra - he pays a hundred Shekalim.
(b) The last three cases on Rebbi Chiya's list are - Metamei, Medameh and Menasech.


1. Metamei means - rendering a Kohen's Terumah, Tamei.
2. Medameh means - mixing Terumah into someone's Chulin.
3. Menasech means - pouring out someone's wine to Avodah-Zarah.
(d) Menasech cannot refer to someone who pours Yayin Nesech into someone's Kasher wine - because the owner is then permitted to sell the wine minus the Yayin Nesech, to a Nochri, in which case he does not sustain any real loss.
(a) We learned above that Rebbi Oshaya did not list Ganav and Gazlan, because they are included in Shomer Chinam and Sho'el - in a case where the Shomer claims that the article was stolen, when really it wasn't, making *him* the thief.

(b) It is not really appropriate to mention 'Sho'el' here - because a Sho'el who claims that the article was stolen, is obligated to pay, in which case, he does cause the owner any loss?

(c) Having already listed Shomer Chinam, Rebbi Chiya's Tana nevertheless saw fit to mention Ganav and Gazlan individually - because the one refers to Mamon that came to his hand legally, and the other, to Mamon that came to his hand illegally (a new sub-category).

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