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Bava Kama 6

BAVA KAMA 6 (13 Av) - Chaim Yitzchok and Aviva Esther Fishof have sponsored today's Daf for the Zechus of the Neshamah of Mordechai ben Rav Yosef Dov (whose Yahrzeit is today), and for a Refu'ah Shelemah for Yosef ben Ettel.



(a) According to Abaye, 'ha'Tzad ha'Shaveh she'Bahen, she'Darkan Le'hazik ... ' comes to include a stone, a knife or a load that one left on the roof and which were blown down - by a regular wind.

(b) This cannot be speaking when they damaged ...

1. ... in flight - because then it would be a regular Toldah of Eish, which is also transported by the wind (and it would not be necessary for the Tana to add it).
2. ... after they had landed, assuming the owner declared them Hefker - because then it would be a regular case of Bor, which stands to damage from the moment the owner dug it in the street or made it Hefker. Here too, the moment he placed them on the roof, he should have realized that a regular wind will blow them down and that they stand to damage.
3. ... after they had landed, assuming the owner did not declare them Hefker - because they would then be a regular Toldah of Bor according to Shmuel, and Shor, according to Rav (as we learned above).
(c) So we establish Abaye - when the stone ... damaged when they were stationary, and they are not really comparable to Bor - inasmuch as Bor does not require a wind to make it a Bor, whereas this Bor only became a Bor because the wind made it into one.

(d) We get round the problem of 'Ko'ach Acher Me'urav Bo' - by learning it from a 'Tzad ha'Shaveh' from not only Bor, but Eish, too.

(a) According to Rava, 'ha'Tzad ha'Shaveh she'Bahen, she'Darkan Le'hazik ... ' comes to include a Bor ha'Misgalgel ... ' - which means a stone that one placed in the street, but which damages wherever it lands after being kicked from one place to another.

(b) We establish the case when he declared it Hefker. Nevertheless, this is not really comparable to Bor - because a Bor is placed by the Mazik alone, whereas this stone damages after being kicked to a new location by others.

(c) We get round the problem of 'Ein Ma'asav Garmu Lo' - by learning it from a 'Tzad ha'Shaveh' from Bor and Shor (which is also a case of 'Ein Ma'asav Garmu Lo').

(d) A third interpretation of what we learn from 'ha'Tzad ha'Shaveh she'Bahen' is that of Rav Ada bar Ahavah - who connects it with the Beraisa, which permits opening one's gutters (to let out the sewage) and clearing out one's caves (to throw out the trash into the street) in the winter.

(a) The Tana says that opening one's gutters and cleaning out one's caves *in the summer* - is prohibitted

(b) We establish this case too, when the sewage and trash have already landed in the street, and when the owner declared them Hefker. The Chidush is - that he is Chayav even though he acted with the consent of Beis-Din.

(c) If the sewage or trash damages ...

1. ... whilst it is moving through the air - he will be Chayav because of Adam ha'Mazik (due to the principle 'Kocho ke'Gufo').
2. ... after it is stationary, but before the owner declares it Hefker - it will be a Toldah of Bor according to Shmuel, and of Shor, according to Rav.
(d) We resolve the problem that whereas a Bor bi'Reshus ha'Rabim is without permission, this case speaks with the Beis-Din's consent - by learning it from Bor and Shor (which also walks around with permission, yet one is nevertheless liable should it cause damage).



(a) Ravina has a fourth explanation (of what we learn from 'ha'Tzad ha'Shaveh she'Bahen' in our Mishnah). He cites a Mishnah in Bava Metzi'a, which exempts the owner of a wall or a tree that fell into the street and damaged from paying. He will however, obligate him to pay - if Beis-Din ordered him to cut down the tree or to break down the wall by a certain date, and they fell and damaged after that date.

(b) Here again, if the owner declared the wall or the tree Hefker, it is a Toldah of Bor, and if not, it is Bor according to Shmuel, Shor according to Rav. And here again, we establish the case - when he declared them Hefker, and the Chidush is that he is Chayav even though, unlike Bor, they did not initially stand to damage.

(c) He is nevertheless Chayav - because we learn it from a 'Tzad ha'Shaveh' from Bor and Shor (which does not initially stand to damage either).

5) Rav Yehudah Amar Rav ascribes the unusual Lashon 'Chav ha'Mazik' used by the Tana of our Mishnah (instead of 'Chayav ha'Mazik') - to the Yerushalmi author of this Mishnah, who spoke a Yerushalmi dialect.


(a) According to Rebbi Yishmael, "Meitav Sadeihu u'Meitav Karmo" refers to that of the Nizak, which we initially explain to mean - that, if the ox ate a row of vegetables from the Nizak's field, the owner is obligated to pay the value of the best quality row in the Nizak's field (even though that is not the one the ox ate).

(b) Rebbi Akiva says 'Lo Ba ha'Kasuv Ela Li'Gvos le'Nizakin min ha'Idis' - meaning that he only pays for what his animal ate, only he pays it with his own best quality fields.

(c) Rebbi Akiva then adds - 'Kal va'Chomer le'Hekdesh' (which will be explained later).

(a) The problem with Rebbi Yishmael's opinion is - why we make the Mazik pay more than the damage that his ox caused.

(b) We reject Rav Idi bad Avin's suggestion that Rebbi Yishmael is speaking when we do not know which quality row the ox ate - on the grounds of the principle 'ha'Motzi me'Chaveiro, Alav ha'Re'ayah' (in case of a Safek, the defendant always pays the lesser amount).

(c) So Rav Acha bar Ya'akov establishes the case when the Idis (best-quality fields) of the Nizak is on a par with the Ziburis (the worst-quality fields) of the Mazik.

(d) Rebbi Yishmael holds that the Mazik can pay with his own Ziburis (because it is equivalent to the Idis of the Nizak), whereas according to Rebbi Akiva, he must pay with his own Idis.

(a) Rebbi Yishmael derives his opinion from the 'Gezeirah-Shavah' "Sadeh" ("Meitav Sadeihu ... Yeshalem") "Sadeh" ("u'Bi'er bi'S'dei Acher") - which teaches us that just as the latter clearly refers to the Nizak, so too, does the former.

(b) Rebbi Akiva (who does not learn the 'Gezeirah-Shavah' for this D'rashah) derive his opinion from the former Pasuk "Meitav Sadeihu u'Meitav Karmo Yeshalem" - which indicates that the Mazik pays with *his* Idis.

(c) Rebbi Yishmael establishes Rebbi Akiva's D'rashah - in a case where the Mazik's Ziburis is not on a par with the Nizak's Idis, in which case he will now have to pay with his own Idis (like Rebbi Akiva).

(a) We learn from the Pasuk "ve'Chi Yigof Shor Ish es *Shor Re'eihu*" - that one is only Chayav to pay for one's ox goring another Jew's ox, but not if it gores an ox belonging to Hekdesh.

(b) *ve'Lo Shor Hekdesh* might be no more than an example (and the D'rashah really pertains to fields of Hekdesh too). On the other hand, it might refer specifically to an ox of Hekdesh, and not to a field of Hekdesh that his ox ate - because there is simply no such thing (since a Sadeh Cherem belongs to the Kohanim, and a field that one donated to Bedek ha'Bayis is either redeemed immediately [either by the owner or by someone else], or it goes to the Kohanim in the Yovel; whereas prior to the Yovel, there is no Me'ilah on Karka and one is obligated to pay just like the property of a Hedyot (see Hagahos Maharshal).

(c) In any event, it is clear that, when Rebbi Akiva said 'Kal va'Chomer le'Hekdesh', he cannot have meant that if a private ox gored a Hekdesh ox, he must certainly pay with Meitav. He cannot have meant that if someone undertakes to give a Manah to Bedek ha'Bayis, the treasurer demands Idis - because there is no reason for Hekdesh to be any different than any other creditor, who claims Beinonis, and not Idis.

(d) And he cannot mean that even assuming that a regular creditor claims Idis - because having just learned from "Shor Re'eihu", that the Torah is more lenient when it comes to damages against Hekdesh, we can no longer use a Binyan Av to learn stringencies on Hekdesh from Hedyot.

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