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Bava Kama 5

BAVA KAMA 5 - dedicated by Rabbi Ari and Esther Maryles in honor of the publication of Sefer Toras Shimon -- Divrei Torah from the great Chassidic master, Rebbi Shimon Maryles, the Rebbe of Yoruslav (Jaroslaw).



(a) We ask why the Tana of our Mishnah does not include Eidim Zomemin in his list, seeing as it is Mamon - since the Torah makes them pay precisely the amount that they attempted to make the Nizak pay (and not more, or less, like other cases of K'nas).

(b) We answer - that Rebbi Oshaya holds like Rebbi Akiva, who exempts Eidim Zomemin from paying by their own admission (a prof that he considers Eidim Zomemin to be K'nas (and not Mamon).

(c) Rebbi Akiva draws a distinction between a Shor Tam that gores a Shor and one that gores a person - inasmuch as the latter is obligated to pay out of his own pocket, whilst the former pays only with the body of the ox (like the regular Din of a Tam).

(d) When he says 'Meshalem *be'Mosar* Nezek Shalem' - he means that if the person and the Shor Tam damaged each other, then if the damage caused by the ox is greater, the owner must pay the balance of the full damage out of his own pocket.

(a) Even though, as we just explained, Rebbi Oshaya's Tana holds like Rebbi Akiva regarding Eidim Zomemin, he cannot divide Shor into two cases, Shor de'Azik Shor (in our Mishnah) and Shor de'Azik Adam (Rebbi Oshaya), like we asked before - because Rebbi Akiva retracted from the previous contention, and in fact, the owner of the ox pays the difference out of the body of the ox, and not out of his own Pocket.

(b) 'Tavreh Rebbi Akiva li'Gezizeh' means - that Rebbi Akiva broke his own strength, limiting his Chidush to the fact that Shor de'Azak Adam pays full damages, but not out of his own pocket (see Tosfos de'Rabeinu Peretz).

(c) O'nes, Mefateh and Motzi Shem Ra contain the element of Mamon in Tza'ar, Boshes and P'gam (depreciation), each of which the man is obligated to pay over and above the K'nas.

(d) Nevertheless, Rebbi Oshaya does not list them - because, bearing in mind that P'gam is really Nezek, he has listed them all already.

(a) Metamei, Medameh and Menasech will be considered Mamon - if we hold 'Hezek she'Eino Nikar, Sh'mei Hezek' (meaning that even an invisible damage has the Din of Nezek).

(b) Nevertheless, Rebbi Oshaya not include it in his list (even if he is of that opinion) - because he has already listed Nezek.

(c) It does not follow that Rebbi Chiya, who does list them, holds 'Hezek she'Eino Nikar, Lo Sh'mei Hezek' (and he lists them because he includes cases of K'nas in his list) - because, even if he held 'Sh'mei Hezek', he would be justified in adding the sub-category of invisible damages, with which the previous Tana'im do not contend.

(a) Our Tana states a number (four) in order to preclude the nine of Rebbi Oshaya. A number is mentioned in the Beraisa of ...
1. ... Rebbi Oshaya - to preclude the cases of Rebbi Chiya.
2. ... Rebbi Chiya to preclude - Moser and Mefagel.
(b) The latter omits ...
1. ... Mefagel - (a Kohen who invalidates a Yisrael's Korban e.g. Chatas, by Shechting it as a Shelamim), because it is not concerned with Kodshim.
2. ... Moser - (someone who divulges information to the authorities, which results in their confiscation another Jew's money) - because he is not concerned with verbal damage.
(c) He nevertheless includes ...
1. ... Motzi Shem Ra - because it requires an act (Bi'ah - see Tosfos DH 'Dibura') too, in order to be Chayav.
2. ... Eidim Zomemin - because the Torah writes in Ki Seitzei "Va'asisem Lo Ka'asher Zamam La'asos le'Achiv", thereby indicating that it considers him to have performed an act (even though he didn't). Note, that this will also explain why, at the beginning of the Amud, we thought that Eidim Zomemin is a case of Mamon.
(d) We already learned that our Mishnah listed the four Avos because there are Toldos. Rebbi Avahu explains the fact that Rebbi Oshaya and Rebbi Chiya refer to Avos (not because all twenty four Avos have Toldos, but) - to teach us that, like the four Avos of our Mishnah, they all pay from the best Karka.
(a) The significance of the Pesukim "Shor Tachas ha'Shor"(Shor Mu'ad), "Yiten la'Adonav" (an ox that gored an Eved), "Meitav Karmo Yeshalem"(Shen ve'Regel) and "Kesef Yashiv li'Be'alav" (Bor) is - that these four Pesukim serve as the basis from which we learn that each of the twenty-four Avos of Rebbi Chiya also pays Meitav (from the best land).

(b) "Meitav" is written explicitly - in the case of Shen va'Regel (and we learn all the others from them).

(c) We know that Eidim Zomemin pay from Meitav, despite the fact that none of the four required words appear there - because Nefesh be'Nafesh", which appears there, is to all intents and purposes, just as good as "Nefesh Tachas Nefesh".

(d) We might learn the five things by Nezek and by O'nes u'Mefateh from a complicated combination of Pesukim. Alternatively - we learn them all from - " ... Tachsas Patza" that is written by Adam ha'Mazik since all five are compared to Nezek.

6) Rava explains the Tana's need to add ...
1. ... 'Lo Harei ha'Shor ke'Harei ha'Mav'eh ... ' - to explain why we cannot learn one from the other with a 'Mah Matzinu'.
2. ... 've'Lo Zeh ve'Zeh she'Yesh Bahem Ru'ach Chayim' - to explain why we cannot learn one from two with a 'Mah Matzinu'.



(a) Rava concludes that as a matter of fact, we could learn any two of the four Avos, except for Keren, from any one of the others plus Bor - because, unlike all the others, Bor remains static when it damages (and it is the Nizak that falls into it).

(b) The 'Tzad ha'Shaveh' ...

1. ... begins - Mah le'Bor, she'Ein Darko Leilech u'Lehazik , Tomar be'Shen (or Regel or Eish) ... '.
2. ... ends - 'Mah le'Bor, she'Kein Techilas Asiyaso le'Nezek ... Keren (or shen, Regel or Eish ... Yochi'ach')
(c) If we had any combination, we could not learn Keren from it - because whereas it is natural for all other Mazikin to damage, that is not the case by an ox, until it becomes a Mu'ad (which is the behind those who say 'Palga Nizka K'nasa').

(d) We *could* even learn Keren from Bor plus any other one however - according to those who hold that, to the contrary, Keren is more stringent, because it damages with intent (even a Shor Tam, which is why he holds 'Palga Nizka Mamona') See Tosfos DH 'she'Kein' and Maharam Shif.

(a) We not learn any other Mazik from ...
1. ... Keren - because it alone, is Kavanaso Lehazik.
2. ... Shen - because it alone is Yesh Hana'ah le'Hezeikah.
3. ... Regel - because it alone is Hezeiko Matzuy.
4. ... Eish - because it alone is Mu'ad even for things that it is not expected to burn (though it is unclear how we know this [or the Chumra of Adam, or that Bor is Patur when a person falls into it] before the outcome of the Sugya ' 'le'Hilchoseihen').
5. ... Adam - because he is Chayav the five things.
(b) Rava requires specifically Bor plus one, and not Keren - because it is only from Bor that we can learn Eish. Otherwise we would ask, 'Mah le'Shen ... she'Kein Yesh Bo Ru'ach Chayim', which only Bor, and not Keren is able to counter.
(a) In spite of having just proved that in fact, the only two that need to be written are Keren and Bor, the Torah considers it necessary to write them all - to each us the individual Halachos of each Av that are peculiar to it, and to it alone.

(b) The unique Halachah that pertains specifically to ...

1. ... Keren is - the distinction between Tam and Mu'ad.
2. ... Shen ve'Regel is - that their liability is confined to the Reshus ha'Nizak (but they are Patur in the Reshus ha'Rabim).
3. ... Bor (according to the Chachamim) is - that the liability is confined to animals (but it is Patur from paying for vessels [as well as for a person who falls into it]).
4. ... Adam is - that he is Chayav five things (as we discussed above).
5. ... Eish (according to the Chachamim) is - that he is Patur from whatever is hidden inside the haystack or the house ... that was burned.
(a) According to Rebbi Yehudah ...
1. ... (who obligates the owner of the pit to pay for broken vessels) - the unique quality of Bor is - that the owner is Patur for paying for a person who falls in and is wounded.
2. ... (who obligates Tamun by Eish), the unique quality of Eish is - that even 'Lichechah Niyro ve'Sichsechah Avanav' is Chayav.
1. ... 'Lichechah Niyro' means - that the furrows in a field became spoilt through he fire.
2. ... 'Sichsechah Avanav' - that bricks became scorched and spoilt.
(c) We need a special Pasuk for this - because they are a most unusual form of damage, and we might otherwise have thought that the Mazik is Patur (which he is by all the other Avos).
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