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Bava Kama 11

BAVA KAMA 11 - dedicated by Reb Gedalia Weinberger of New York, an Ohev Torah and Marbitz Torah whose tireless efforts on behalf of Klal Yisroel have produced enormous benefits for the Lomdei Hadaf over the years.



(a) We just refuted the suggestion that the Tana Kama of the Beraisa ('Yavi Eidim le'Beis-Din') and Aba Shaul ('Yavi Adudah le'Beis-Din') argue over P'chas Neveilah, to avoid creating a problem with Rav (or Rava ['Lo Nitzr'cha Ela li'P'chas Neveilah']), and we conclude that both Tana'im hold 'P'chas Neveilah de'Nizak'. The basis of their Machlokes is - whether 'Torach Neveilah' (the trouble of extricating the Neveilah from the pit) is the onus of the Mazik' (Aba Shaul) or of the Nizak' (the Rabbanan).

(b) Acherim learns from the Pasuk "*Kesef Yashiv le'Be'alav, ve'ha'Meis* Yih'yeh Lo' - that it is up to the Nizak to extricate the carcass from the pit (like Aba Shaul).

(c) Assuming that a carcass is worth more outside the pit than inside it, Abaye's problem with Acherim's D'rashah is - why it is necessary at all, seeing as it is in the Nizak's interest to raise the carcass.

(d) Rava answered him - that the Beraisa speaks in a case where the value of the carcass is the same inside the pit as outside it, and he backs this up with a popular saying 'A beam in town is worth a Zuz, and so is a beam in the field'.

(a) When Shmuel said 'Ein Shamin Lo le'Ganav ve'Lo le'Gazlan', he meant - that it was customary for Dayanim not to assess a stolen object (which meant that, in the event of its having depreciated after the theft, the thief would return it together with the balance). In fact, they would obligate the thief to replace the stolen article with a new one. They would however, assess damaged articles.

(b) The problem with his conclusion 'va'Ani Omer Af le'Sho'el, (ve'Aba [Rav] Modeh Li)' is - its ambiguity. It is unclear whether 'Af le'Sho'el Shamin (like Nezikin), or ' ... Ein Shamin' (like Ganav and Gazlan).

(c) We try to solve our problem from an episode where someone broke a bolt that he borrowed from his friend, and Rav ruled that he must replace the bolt with a new one, in which case, a proof that Shmuel must have meant 'Ein Shamin'. We counter this proof however - with Rav Kahana and Rav Asi there - who exclaimed 'Is that the Din?', to which Rav remained silent (indicating that the Halachah is 'Ein Shamin', and that this is also the opinion of Rav).

(d) 'Ula Amar Rebbi Elazar, Shamin le'Ganav u'le'Gazlan. Rav Papi Amar, Ein Shamin'. The Halachah in the case of ...

1. ... Ganav and Gazlan is - Ein Shamin.
2. ... a borrower - Shamin.
(a) If a Shilya (a placenta) appears without a baby inside - the woman must nevertheless observe fourteen days of Tum'ah immediately (followed by twenty-six days of Taharah), because 'Ein Shilya be'Lo V'lad' (there is no such thing as a Shilya without a baby inside - and if no baby is visible, then it must have melted).

(b) A woman who gives birth - is Tamei even if she does not see any blood (and this is known as a 'Leidah Yeveshta').

(c) The criterion that renders a woman Tamei Tum'as Leidah is - that the majority of the baby emerged in the Shilya or part of the Shilya (see Rashash).

(a) Ula Amar Rebbi Elazar says in the case of a Shilya, part of which emerged on one day, and the remainder on the next - that we reckon the fourteen days of Tum'ah already from the first day (in case the majority of the baby emerged with it).

(b) Rava objects to Rebbi Elazar's ruling - on the grounds that, bearing in mind that the first day is no more than a Safek, going le'Chumra on the first day will lead to a Kula on the fifteenth, which one will then reckon as the first day of Taharah, rendering Tahor any blood that she may see on that day.

(c) Rava therefore amends the text to read - ' ... Chosheshin Lah mi'Yom Rishon', meaning that one considers her Tamei on the first day, but begins counting the fourteen days of Tum'ah from the second (le'Chumra, but not le'Kula, as we shall now see.

(d) She subsequently counts ...

1. ... fifteen days of Tum'ah?
2. ... twenty-five days of Taharah - because as far as the days of Taharah are concerned, we are also strict, to begin counting them considering the second day of Tum'ah as her first day, but end the count, as if the first day was her first day of Tum'ah.
(a) The underlying principle on which Rebbi Elazar's Chidush is based is - 'Ein Miktzas Shilya be'Lo V'lad' (even a small part of a Shilya that emerges from the womb contains part of a baby)

(b) Were it not for this principle - we would not render the woman Tamei on the first day, because of a S'fek S'feika (see Tosfos DH 'Shilya'), maybe no part of the baby emerged at all, and even if it did, maybe it was not a majority. And we would then consider the second day as her first of Tum'ah.

(c) The Mishnah in Chulin forbids eating part of a Shilya of an animal that emerges whilst the mother is still alive, on the grounds - that maybe the majority of the baby emerged with it and (even if it returns) it will forbidden because of Neveilah, even if one subsequently Shechted the mother.

(d) The Mishnah continues ' 'Siman V'lad be'Ishah, Si'man V'lad bi'Veheimah' (in other words, we learn the Din of the Shilya of an animal from that of a human).

(a) The Mishnah in Chulin now poses on Rebbi Elazar's ruling - inasmuch as, seeing as the Tana forbids part of a Shilya of an animal, based on 'Ein Miktzas Shilya be'Lo V'lad', what is Rebbi Elazar coming to teach us?

(b) To resolve this problem, we explain that, without Rebbi Elazar, we might have thought 'Yesh Miktzas Shilya be'Lo V'lad', and the reason that the Tana forbids even part of the Shilya that emerged is - because we decree a part of the Shilya on account of the whole one (which would definitely be forbidden because of Neveilah).

(c) This decree would not apply to a human Shilya - because seeing as we count her days from the second day (as we explained earlier), everyone would know that a part of a Shilya is a Safek, and not definitely Tahor (and no decree is therefore necessary). Consequently, we need Rebbi Elazar to teach us 'Ein Miktzas Shilya be'Lo V'lad', both in the case of a human Shilya and in that of an animal.




(a) Ula Amar Rebbi Elazar says that a first-born son who is killed during the first thirty days - does not need to be redeemed.

(b) The Pasuk "u'Feduyav mi'Ben Chodesh Tifdeh" - comes specifically to preclude a baby who *died* from Pidyon ha'Ben, since his premature death proves that he was a Nefel (a premature baby who could not live), but not a healthy baby who was killed.

(c) The Beraisa quoted by Rami bar Chama learns this from the Pasuk "Ach Padoh Sifdeh es Bechor ha'Adam" - from the word "Ach", which always comes to exclude.

(a) We learned in a Mishnah in Kidushin that a large animal is acquired by means of a Kinyan Mesirah (and not Meshichah - see Rashi and Tosfos in Kidushin). Ula Amar Rebbi Elazar says with Meshichah - on the basis of the Beraisa 'va'Chachamim Omrim, Zu ve'Zu (both a small animal and a large one) bi'Meshichah'.

(b) Rebbi Shimon says 'Zu ve'Zu be'Hagbahah'.

(c) Ula Amar Rebbi Elazar also says that, when brothers divided their father's estate, we assess the clothes that *they* (but not their [wives - Rosh, and] chidren) are wearing (out of the estate) - because (women and) children generally shun going to Beis-Din (since it is considered degrading for them).

(d) When Rav Papa said that sometimes one does even assess the clothes that 'they' are wearing - he was referring to fine clothes that the oldest son is wearing, because the other brothers are only too pleased that, he, as the family representative, is smartly dressed.

(a) Ula Amar Rebbi Elazar also ruled that a Shomer who hands the article he is guarding to another Shomer for safekeeping, is Patur. This is certainly the case if a Shomer Chinam hands it to a Shomer Sachar, where he improves the Shemirah, but it also pertains to the reverse case, where he has down-graded the level of Shemirah - because he did after all, hand it to a ben Da'as (a sane, grown-up person).

(b) The ramifications of this ruling are - that he (the first Shomer) will be Patur from Onsin (from which he would also have been Patur had he retained it) on the basis of the Shevu'ah of the second Shomer (but not from Geneivah va'Aveidah).

(c) Rava disagrees. In his opinion - not only is a Shomer Sachar who handed the article to a Shomer Chinam (thereby down-grading the level of Shemirah) Chayav, but even a Shomer Chinam who handed it to a Shomer Sachar (where he improves the Shemirah) is Chayav too ...

(d) ... because the owner can say to the first Shomer 'I handed *you* my article for safekeeping, because I trust you and I accept your Shevu'ah. But I don't trust the man to whom you entrusted it, and I don't accept his Shevu'ah!'

(a) Ula Amar Rebbi Elazar also said that a creditor may claim Avadim in lieu of his debt. When Rav Nachman asked Ula ...
1. ... whether he meant even from the Yesomim (assuming that the borrower had died) - he replied 'No, only from the borrower himself'.
2. ... that this was obvious - he replied that he was speaking when the borrower had designated the Eved as an Apotiki (the acronym of 'Apa Tehei Ka'i', meaning that he now has special rights to claim from this particular property), and then sold him, the Chidush being that the creditor is now empowered to claim him from the purchaser (even though he cannot claim it from the debtor's Yesomim should the debtor himself die [according to the prevalent theory at this point).
(b) It is obvious that the creditor can claim the Eved directly from the debtor - because everything that the debtor owns is Meshubad to the creditor, even the shirt on his back.

(c) In fact, he connected this Halachah with a statement of Rava, who said - that if someone designated ...

1. ... his Eved as an Apotiki and then sold him - he can claim him from the purchaser.
2. ... his ox as an Apotiki and then sold it - he is not permitted to claim it.
(d) The reason for this difference is - because whereas an ox has no Kol (that it is an Apotiki, and the purchaser cannot therefore safeguard himself against losing it), an Eved has.
(a) After Rav Nachman had left, Ula said that Rebbi Elazar had really permitted claiming the Eved even from the Yesomim.

(b) When Rav Nachman got to hear about it, he commented - that Ula had evaded him because he was afraid of him.

(c) Ula, who maintained that Avadim (in this regard), are like Karka, was afraid - that Rav Nachman, who held that Avadim were like Metaltelin, might overwhelm him with arguments proving him wrong.

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