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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Kama 13



(a) We already discussed the Beraisa "u'Ma'alah Ma'al ba'Hashem", 'Lerabos Kodshim Kalim she'Heim Mamono, Divrei Rebbi Yossi Hagelili'. ben Azai adds 'Lerabos es ha'Shelamim'. Aba Yossi ben Dustai says - 'Lo Amar ben Azai Ela bi'Bechor Bil'vad'.

(b) The three Chumros of Shelamim over Bechor are - that it requires 'Semichah' (leaning one's hands on it before the Shechitah), 'Nesachim' (a drink-offering incorporating a meal-offering) and 'Tenufah' (waving the chest and the right calf).

(c) Consequently, when ben Azai says 'Lerabos es ha'Shelamim', he cannot mean to preclude Bechor, only Ma'aser.

(d) We take it for granted that Bechor, like Shelamim, is considered the property of the owner, as we just intimated. Granted, we just learned that Matnos Kehunah are not the property of the owner, even according to Rebbi Yossi Hagelili - but that referred to a Bechor in Eretz Yisrael, whilst we are speaking about a Bechor in Chutz la'Aretz (which even Rebbi Yossi Hagelili agrees, belongs to the owner, as we also explained there).

(a) The Tana learns from the fact that the Torah writes in Korach "Lo Sipadeh" with regard to Bechor, whereas in Bechukosai with regard to Ma'aser (Beheimah) it writes "Lo Yiga'el" - that whereas a Bechor can be sold, a Ma'aser animal cannot.

(b) This distinction helps us clarify the opinion of ben Azai, who incorporates Bechor in the Din of Shelamim, but not Ma'aser.

(c) With regard to a Bechor in Eretz Yisrael, "Lo Sipadeh" implies that it may not be redeemed (unless it obtains a blemish), and in the time of the Beis Hamikdash, that it must be sacrificed. With regard to a Bechor in Chutz la'Aretz (bearing in mind that it may be sold), it implies ...

1. ... (before the animal has been Shechted) - the prohibition of selling it in a shop (as one does Chulin animas) or selling it by weight.
2. ... after its Shechitah - eating it (after it obtains a blemish) bi'Kedushas Bechor (be'Taharah).
(d) We learn from the 'Gezeirah-Shavah' "Lo Yiga'el" "Lo Yiga'el" from Charamim - that Ma'aser, like Charamim, cannot be sold.
(a) Ravina makes the same inference (precluding specifically Ma'aser, and not Shelamim), in the Seifa (according to Aba Yossi ben Dustai), as we just made in the Reisha (precluding Ma'aser, and not Bechor, according to ben Azai). The edge that Bechor has over Shelamim, according to Ravina is - that it is holy from the moment it is born.

(b) According to Ravina - Aba Yossi ben Dustai considers Bechor and Shelamim Mamon Ba'alim, but not Ma'aser.

(c) We prove Ravina wrong from the Lashon of Aba Yossi ben Dustai (whose very words he is coming to explain) - who says 'Lo Amar ben Azai *Ela* Bechor L'vad' (implying Bechor and not Shelamim).

(a) Until now, we have taken 'Nechasim she'Ein Bahem Me'ilah' literally (as a result of which we were forced to establish the author of our Mishnah as Rebbi Yossi Hagelili). Rava however, interprets it to mean - Nechasim she'Ein Bahem *Din* Me'ilah (which is another way of saying Nechasim shel Hedyot).

(b) The problem we have with that is - why the Mishnah did not then simply say 'Nechasim shel Hedyot'.

(a) When Rebbi Aba said 'Shelamim she'Hiziku, Govah mi'Besaran, ve'Eino Govah me'Eimureihen', he meant - that if a Shelamim animal gored another animal, for example, the Nizak can only claim from the flesh of the Mazik, the half damage caused by the flesh, but not the half damage caused by the Eimurin.

(b) He cannot have meant what he said literally - because the Eimurin are the parts of the animal that are burned on the Mizbe'ach (which can obviously not be given to the Nizak, if only because they are Asur be'Hana'ah).

(c) We have difficulty in establishing which Tana Rebbi Aba's statement follows. If it is the Rabbanan, we ask, it is obvious, because they say - that if one ox pushed another ox into a pit, in the case of ...

1. ... a Shor Tam - the Nizak claims a quarter of the damages from the body of the ox, and nothing from the owner of the pit.
2. ... a Shor Mu'ad - he claims a half from the owner of the ox, and nothing from the owner of the pit.
(d) The owner of the pit is Patur from paying in both cases - because the ox that pushed the Nizak into the pit is considered the sole Mazik.
(a) Rebbi Nasan says in the case of ...
1. ... a Tam - that the Nizak claims a quarter of the damages from the body of the ox, and the rest from the owner of the pit.
2. ... a Mu'ad - he claims half from the owner of the ox, and the rest from the owner of the pit.
(b) Rebbi Nasan's reasoning is - because the Nizak can say to the owner of the pit 'I found my ox in your pit! Consequently, whatever I cannot claim from the owner of the ox, I will claim from you!'

(c) We conclude that Rebbi Aba could hold like either Tana. He might hold like ...

1. ... the Rabbanan, because we might otherwise have thought that they would concede in the case of a Shelamim animal, that the Nizak *can claim the entire damage from the flesh* - since it is a matter of two parts of one body (the Eimurin and the flesh), unlike their case, where the two partners are two independent bodies (the ox and the pit).
2. ... Rebbi Nasan - because he may well concede to the Chachamim here, seeing as undeniably, the Eimurin caused as much damage as the flesh, and his ruling is restricted to the case of the ox and the pit, where at the end of the day, the Nizak can say to the owner of the pit 'I found my ox in your pit ... ' (as we explained earlier [making the owner of the pit fully liable in a sense]).
(a) Although we accept the above explanation of Rebbi Aba's statement, we might explain 'Lo Tzericha Ligvos mi'Besaran Keneged Eimurehen' to mean - that according to Rebbi Aba, one does indeed claim the damage of the Eimurim from the flesh.

(b) We will then amend the original problem 'I Aliba ...

1. ... de'Rabbanan 'P'shita! Ha Amru Ki Leka le'Ishtelumi me'Hai, Lo Mishtalem me'Hai?' by omitting the word 'P'shita!'
2. ... de'Rebbi Nasan 'Ha Amar Ki Leka le'Ishtelumi me'Hai, Mishtalem me'Hai' by adding - 'P'shita!'
(c) We reject this explantion however - on the grounds that it is more likely that the answer follows the Kashya ('P'shita, Eimurim le'Gavohah Salki'), which was from the Seifa of Rebbi Aba's words ('ve'Eino Govah me'Eimurehen'), and not from the Reisha ('Govah mi'Besaran'), as the answer would now suggest.



(a) The problem with Rava's statement 'Todah she'Hizikah, Govah mi'Besarah, ve'Eno Govah mi'Lachmah' is - that there is not the least reason to think otherwise. So what is the Chidush?

(b) Rava's Chidush actually lies in the Seifa of his words - 'Nizak Ochel Basar, u'Miskaper Meivi Lechem'.

(c) The Chidush in that statement is - that the owner cannot say to the Nizak 'You are eating the Korban; you bring the loaves!' Rava is teaching us that in fact, the loaves remain the obligation of the original owner.

(a) When the Tana of our Mishnah says ...
1. ... 'Nechasim she'Hein shel B'nei B'ris - he is coming to preclude the property of a Nochri that one damaged.
2. ... 'Nechasim ha'Meyuchadim' - he is coming to preclude a case where we are not certain who caused the damage.
(b) We need one Mishnah later, which specifically exempts the ox of a Jew which gores that of a Nochri, and another, which specifically exempts two oxen chasing a third ox, where one of them kills it, and each one blames the other one - merely to explain the two respective Mishnos here, which are both vaguely worded.

(c) Alternatively, we are speaking about property of Hefker. The Mishnah is obviously not concerned with - someone whose ox damaged an ox of Hefker, because in that case, there is no claimant.

(d) We therefore conclude that the Mishnah comes to preclude a Hefker ox that gored a private one, and he cannot just go and take the ox - because it speaks when someone subsequently acquired it from Hefker, and teaches us that he is no longer permitted to claim it.

(a) Ravina has a third interpretation of what 'Nechasim ha'Meyuchadim' comes to preclude, conforming with Rebbi Yehudah in a Beraisa, who learns from the Pasuk "ve'Hu'ad bi'Ve'alav ve'Heimis" - that the Nizak only claims the Shor ha'Mazik if it has changed hands between the goring and the time that it was taken to Beis-Din.

(b) Based on the end of the Pasuk "ha'Shor Yisakel", we amend Rebbi Yehudah's statement - to include the period of time from when it is taken to Beis-Din until Beis-Din's final ruling.

(a) If the Mazik's ox damaged someone else's ox that strayed into his field he is Patur from paying - because he can say to the Nizak 'What is your ox doing in my field?'

(b) Rav Chisda Amar Avimi renders partners who damage each other's property by means of Shen or Regel liable - Rebbi Elazar exempts them.

(c) We explain our Mishnah ' ... Chutz me'Reshus ha'Meyuchedes u'Reshus ha'Nizak ve'ha'Mazik ke'she'Hizik, Chav ha'Mazik ... ' according to ...

1. ... Rav Chisda - ' ... Chutz me'Reshus ha'Meyuchedes. u'Reshus ha'Nizak ve'ha'Mazik ke'she'Hizik, Chav ha'Mazik ... '.
2. ... Rebbi Elazar - ' ... Chutz me'Reshus ha'Meyuchedes u'Reshus ha'Nizak ve'ha'Mazik. ke'she'Hizik, Chav ha'Mazik ... '.
(d) According to Rav Chisda, 'ke'she'Hizik, Chav ha'Mazik ... ' must refer to Shen ve'Regel and not to Keren - because Keren is Chayav even in the Reshus ha'Rabim, and it would be quite superfluous to inform us that it is also Chayav in their joint Reshus.
(a) According to Rebbi Elazar, 'ke'she'Hizik Chav ha'Mazik ... ' come to include Keren, which has not yet been mentioned. However, that is only according to Shmuel, who learns 'Shor le'Raglo' and 'Mav'eh le'Shino'. According to Rav (who includes Keren in 'Shor') it comes to include the four Shomrim (as we will now explain).

(b) The Tana of the Beraisa, who states this Chidush, adds that if the ox the Shomer is looking after broke out in the night or was let out by robbers - the Shomer is Patur (because he is an O'nes).

(c) When the Tana of the Beraisa, commenting on our Mishnah 'ke'she'Hizik Chav ha'Mazik ... ' explains 'Lerabos Shomer Chinam ... ve'ha'Sho'el ... ', he cannot be speaking when it is ...

1. ... the borrowed ox which damaged the ox of the Shomer (at least so we think initially) - because the owner can say to the Sho'el 'If my ox had gored someone else's ox, you would have had to pay. Why, now that it gored your ox, should I be liable'?
2. ... the Shomer's ox which gored the borrowed one - because he can then say 'If someone else's ox had gored my ox, you would have had to pay full damages. Now that it is your ox that did the goring, why should I only receive half the damages'?
(a) We finally establish the case when it was the borrowed ox that gored the ox of the borrower - and to evade the Kashya that we asked earlier - we establish the case when the borrower undertook to guard the animal against damages done to it by others, but not for damages done by the animal to others.

(b) We can infer from the Seifa 'Nifretzah *ba'Laylah* ... , Patur' - 'Ha ba'Yom, Chayav'.

(c) True, we just established the Reisha of the Beraisa when the Shomer did not accept the liability of damages caused by the ox he is guarding - but we amend the Seifa to read 'Im Kibel Alav Shemiras Nizakav, Chayav. Nifretzah ba'Laylah ... Patur'.

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