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Bava Kama 10



(a) Shor has four Chumros over Eish (like it has over Bor). Bearing in mind that Eish damages whilst it moves (like Shor), the other Chumra that Shor has over Eish (which it did not have over Bor) is - that if he hands it to a 'Chashu' to look after, he is Chayav.

(b) The Chumra of Eish over Shor is - that it is Mu'ad right from the start.

(c) The two Chumros of ...

1. ... Bor over Eish are - that it stands to damage right from the beginning and that if he handed it to a 'Chashu', he is Chayav.
2. ... Eish over Bor - is that it damages whilst it is moving and it is Mu'ad to damage even things that are not appropriate for it to damage.
(d) Keilim are considered inappropriate by Eish and Bor.
(a) Initially, we attribute the omission of the Chumra of Shor over Bor that Shor is Chayav Keilim, which Bor is not, to the fact that the author of the Beraisa is Rebbi Yehudah - who holds that Bor is Chayav for the damage of Keilim.

(b) We reject this however, from the Seifa ('Chomer be'Eish mi'be'Bor ... '). The problem with that, if the author was Rebbi Yehudah, would be - that we include among those Chumros, that Eish is Chayav for Keilim, which Bor is not. But according to Rebbi Yehudah, he is Chayav on Keilim in a Bor, too.

(c) Even if, as we then suggest, the author of the Beraisa is the Rabbanan, we can justify the omission of the Chumra of Shor over Bor, that Shor is Chayav Keilim, whereas Bor is not - by pointing to a second omission in the Beraisa (and a Tana is entitled to omit from a Mishnah or Beraisa provided he omits at least two cases).

(d) The additional Chumra that the Tana omits that Shor and Bor have over Eish is - Tamun (which, as Chazal will later extrapolate from "O ha'Kamah", is Patur by Eish).

(a) Alternatively, we re-establish the Beraisa like Rebbi Yehudah, and the Chumra of Eish over Bor is not Keilim - but 'Lich'chah Niyro, ve'Sichsechah Avanav'.

(b) The other Halachic Chumra of Shor over Bor is - that it is Chayav for damaging a Shor Pesulei ha'Mukdashin (a Hekdesh ox that became blemished and was redeemed).

(c) We learn that a Shor Pesulei ha'Mukdashin is ...

1. ... Patur be'Bor - from the Pasuk "ve'ha'Meis Yih'yeh Lo", and a Shor Pesulei ha'Mukdashin does not belong to the owner (since he is only permitted to eat it, but not to shear its wool, to milk it or to feed it to the dogs).
2. ... Chayav be'Shor - because the Torah writes "Shor Re'eihu", and once the owner has redeemed it, it falls under that category.
(d) The problem, if the author of the Beraisa is Rebbi Yehudah (who obligates both Tamun be'Eish and Keilim be'Bor) is - what else does the Tana omit to justify omitting Shor Pesulei ha'Mukdashin?
(a) We refute the suggestion that, even according to Rebbi Yehudah, the Tana omits 'Dash be'Niyro', which is Chayav by Shor but Patur by Bor - on the grounds that Dash be'Niyro is not omitted. It is included in 'she'Kein Darko Leilech u'Lehazik' (which the Tana does in fact, include).

(b) This applies to damaging willfully, which is a Toldah of Keren.

(c) Dash be'Niyro is not Chayav by Bor - because it is simply not applicable.

(a) We learned in our Mishnah 'Hechsharti be'Miktzas Nizko, Chavti be'Tashlumei Nizko ke'Hechsher Kol Nizko', which we initially establish by someone who added an extra Tefach to a pit that was already nine Tefachim deep. We suggest that the author of our Mishnah will not then be Rebbi - who says that it is only with regard to death that we go after the one who dug the last Tefach (because a pit of less than ten Tefachim is not fit to kill). but as far as damages is concerned, both the person who dug the first nine Tefachim and the person who dug the last one share the liability.

(b) Rav Papa disagrees. He establishes our Mishnah even like Rebbi, and the Tana is talking about Miysah (not Nezikin).

(c) According to others, Rav Papa does not argue with anybody.
What prompted him to make his statement was the proposal - 'Leima de'Lo ke'Rebbi' (which is a question, rather than an opinion).

(a) Rebbi Zeira asked why we could not establish our Mishnah ('Hechsharti be'Miktzas Nizko ... ') in a case when someone handed his ox to five people to guard, and one of them was negligent, as a result of which the ox went and caused damage. We reject Rebbi Zeira's proposal however on the grounds - that it cannot speak when ...
1. ... without the fifth one's assistance, the animal (due to its wild nature) could not have been guarded - because then it is obvious that he would be Chayav (since in effect, he caused the entire damage, and not just part of it), (and we would not require a Mishnah).
2. ... without his assistance, it would have been guarded anyway - because then he didn't do anything, and there is no reason for him to be Chayav.
(b) Then Rav Sheishes asks why we could not establish it in a case when someone added to an existing flame. We reject Rebbi Sheishes' proposal, too on the same grounds. It cannot be speaking when ...
1. ... without the additional flame, the fire would not have caused damage - because then it is obvious that he would be Chayav, and the Mishnah would have been required.
2. ... without it, the fire would have damaged anyway - because then he didn't do anything, and there is no reason for him to be Chayav.
(c) What makes the case where the damage would not have occurred had the last man not contributed to it, worse than our case (of the man who added the tenth Tefach), in the case of ...
1. ... the ox is - the fact that the man who dug the first nine Tefachim did create a damager, and in fact, contributed towards the final damage or death, whereas those who *did* guard the ox, did not contribute towards the ultimate damage at all, making the man who did *not* solely responsible.
2. ... the fire is - the fact that, had he not added the additional fuel, the fire would have fizzled out, making him solely responsible, whereas in our case, the man who dug the first nine Tefachim remains a partner in the damage. (In both cases therefore, it would be no Chidush to tell us that the last man is fully liable, whereas in the case of the man who dug the tenth Tefach, the Tana needs to tell us that that is the case).



(a) Then Rav Papa asks why we could not establish it in the case cited in a Beraisa where five men were sitting on a bench without breaking it, when a sixth man sat down and broke it. Rav Papa adds that he is talking about someone like Papa bar Aba - who was an exceptionally heavy-set man.

(b) We reject Rebbi Papa's proposal using exactly the same argument as before. If the bench would not have broken without Papa bar Aba, then it is obvious that he is Chayav, and if it would, then there is no Chidush.

Assuming that the bench would not have broken without Papa bar Aba, it is more obvious that he alone is Chayav, than the case of the man who dug the tenth Tefach - because, as opposed to that case, the bench had not even begun to break before Papa bar Aba came along.

(c) The Beraisa, which does discuss the case - speaks when without Papa bar Aba, the bench would have broken in two hours, and now it broke in one.

(a) We attempt to absolve Papa bar Aba from the entire blame by claiming that, were it not for the other five men's assistance, the bench would not have broken - meaning that they ought to have stood up.

(b) And we resolve this Kashya - by establishing that Papa bar Aba did not actually sit on the bench, but that he leaned against the men who were sitting there, preventing them from getting up, even if they had wanted to.

(c) It is no longer necessary to explain that without Papa bar Aba, the bench would have broken in two hours and now it broke in just one - but that, without him, it would not have broken at all, and now, it did break.

(d) The Tana's Chidush is - 'Kocho ke'Gufo', a person's force is considered like his body, and it is as if he was himself sitting on the bench.

(a) Finally, we ask why we cannot establish 'Hechsharti be'Miktzas Nizko' by the case cited in the Beraisa of ten men who lay about someone with ten sticks and killed him. The Tana Kama says that they are all Patur, irrespective of whether they all beat him simultaneously or consecutively - because we do not know who actually killed him (see Rashi in Sanhedrin).

(b) Rebbi Yehudah ben Beseira says - that if they did it consecutively, then the last one is Chayav.

(c) The basis of their Machlokes is the Pasuk "ve'Ish Ki Yakeh Kol Nefesh Adam". "Kol Nefesh Adam", according to ...

1. ... Rebbi Yehudah ben Beseira means - even a little bit of the Nefesh.
2. ... the Rabbanan - the whole Nefesh.
(d) We now propose to establish our Mishnah like Rebbi Yehudah ben Beseira.
10) We are quite happy to establish our Mishnah 'bi'P'lugta', as long as it is like the Rabbanan (the majority) - but we will not establish a S'tam Mishnah like a minority opinion (Rebbi Yehudah ben Beseira), if there is an alternative.


(a) We can extrapolate from the fact that our Mishnah says 'Chavti be'Tashlumei Nizko' (and not just 'Chavti be'Nizko') - that the Nizak keeps the carcass of the gored ox as part payment, and the Mazik pays the balance.


1. Rebbi Ami learns this from the Pasuk "Makeh Nefesh Beheimah *Yeshalmenah*" - which he reads as if it was written "Yashlimenah" ('he shall complement what is missing').
2. Rav Kahana learns it from "Im Tarof Yitaref Yevi'ehu Eid ha'Tereifah Lo Yeshalem" - as if the Torah had written " ... Yevi'ehu Ad ha'Tereifah" (excluding the T'reifah itself, which the Nizak already has). The Pasuk is referring to a Shomer Sachar who caused the animal to be mauled to death through his negligence.
3. Chizkiyah and Tana de'Bei Chizkiyah learn it from "Shalem Yeshalem Shor Tachas ha'Shor, ve'ha'Meis Yih'yeh Lo" - because if "Lo" referred to the Mazik, Abaye explains, the Torah might as well not have mentioned it (since, seeing as he has to pay for the entire damage, it is obvious that he takes the carcass).
(c) The question now arises why we need all three Pesukim. Even though the Torah wrote ...
1. ... "Makeh Nefesh Beheimah Yeshalmenah", it needs to write "Im Tarof Toraf Yevi'ehu Eid ha'Tereifah ... " - to teach us that the Nizak takes the carcass even in a case which is common (and the Torah does not penalize the Mazik).
2. ... "Im Tarof Toraf Yevi'ehu Eid ha'Tereifah ... ", it needs to write "Makeh Nefesh Beheimah Yeshalmenah" - to teach us that the Nizak takes the carcass even in a case where the Mazik damaged with his hands.
3. ... these two, it needs to write "ve'ha'Meis Yih'yeh Lo" - to teach us that the Nizak takes the carcass, that even though it is both common and the damage was performed deliberately (by the damaging ox), the Torah still does not penalize the Mazik.
4. ... "ve'ha'Meis Yih'yeh Lo", it needs to write the other two - to teach us that it even applies when it is the person himself who damages (and is not confined to where the damage was caused by his property).
(d) And having already taught us that a Mazik can even pay oats, Rav Kahana asked Rav (or Rava), why the Torah then finds it necessary to write "ve'ha'Meis Yiy'heh Lo", 'le'Nizak', which is really obvious, to which he replied - that the Torah is coming to teach us that (not only must the Nizak take the carcass, but that) he must bear the loss should the carcass depreciate.
(a) We query Rav (or Rava) from a Beraisa. The Tana Kama explains "Im Tarof Yitaref Yevi'eihu Eid" to mean that the Shomer must bring witnesses that it was torn be'O'nes, and we learn that he is Patur from Onsin - from the Pasuk in Mishpatim " ... u'Meis O Nishbar O Nishbah, Ein Ro'eh, Shevu'as Hashem Tih'yeh Bein Sheneihem" (since the purpose of a Shevu'ah is to exempt the defendant from paying).

(b) Aba Shaul interprets "Eid" - to mean the carcass ('Adudah'), and the Pasuk now means that the Nizak brings the carcass to Beis-Din for assessment.

(c) Seeing as Aba Shaul certainly agrees with the Tana Kama's Halachah, it is clearly the Chachamim who disagree with Aba Shaul. So initially, we explain - that Aba Shaul requires the Nizak to bring the carcass to Beis-Din for assessment (because he holds 'P'chas Neveilah de'Nizak'), and the Rabbanan disagree (because they hold 'P'chas Neveilah de'Mazik').

(d) The problem that this creates with Rav (or Rava ['Lo Nitzr'cha Ela li'P'chas Neveilah']) is - seeing as "ve'ha'Meis Yih'yeh Lo" must come to teach us 'P'chas Neveilah de'Nizak', how can Tana'im argue over the matter?

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