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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 14



(a) The Beraisa quoted by Rav Yosef says 'Chatzar ha'Shutfim ve'ha'Pundak - Chayav Bahen Al ha'Shen ve'Al ha'Regel'.

(b) Rebbi Elazar, who holds Patur, reconciles his own opinion with this Beraisa - by citing another Beraisa which argues, and which he follows.

(c) Rebbi Shimon ben Elazar presents four categories of locations. He renders all damages liable in the Reshus of the Nizak, and all damages Patur in the Reshus of the Mazik. He says that ...

1. ... in a Chatzer ha'Shutfin ve'ha'Bik'ah - Shen ve'Regel is Patur, and Keren (with all its Toldos) is Chayav (half damages in the case of a Tam, and complete damages in the case of a Mu'ad).
2. ... in a Chatzer that belongs to neither of them - Shen ve'Regel is Chayav, and Keren has the same Din as in the previous case.
(d) The reason ...
1. ... according to some, that one is Patur on Shen va'Regel even in the Reshuyos that he is Chayav Keren is - because Shen va'Regel requires 'S'dei Acher', which Keren does not.
2. ... according to others, that one is nevertheless Chayav is - because, seeing as it is not designated for public use, it is indeed considered 'S'dei Acher'.
(a) According to Rebbi Elazar, the Beraisa of Rav Yosef (which holds partners liable for Shen ve'Ayin in a Chatzer ha'Shutfin) and Rebbi Shimon ben Elazar in the second Beraisa (who exempts them), argue. We nevertheless reconcile the two Beraisos - by establishing the first Beraisa a Chatzer which is designated for the use of fruit, but not for animals (rendering it 'S'dei Acher' when one of them allows his animal to enter it), whereas the second Beraisa speaks when it is designated for animals too.

(b) And we prove this from the accompanying case in each respective Beraisa - 'Pundak' (a guest-house) in the first (which is confined to the use of people and not animals), 'Bik'ah' (a valley) in the second, where animals normally graze.

(c) Rebbi Zeira asked why they are Chayav for Shen va'Regel, in Rav Yosef's Beraisa, because, seeing as it is designated for the use of each one's fruit, it is not 'S'dei Acher'. Abaye replied - that seeing as it was not designated for either of their animals, it is indeed 'S'dei Acher'.

(d) When Rav Acha from Difti asked Ravina whether perhaps we could reconcile Rav Chisda and Rebbi Elazar in the same way as we just reconciled the two Beraisos - Ravina replied that, maybe he was right. Alternatively, they argued over a Chatzer that was designated for their joint use for fruit but not animals, and Rebbi Elazar (who exempts them) supports the Kashya of Rebbi Zeira, whereas Rav Chisda (who obligates them), follows Abaye's answer.

(a) We extrapolate from Rebbi Shimon ben Elazar's words 'Kol she'Hu Reshus le'Nizak ve'Lo le'Mazik, Chayav ba'Kol' - that everyone (even a Shor Tam) is Chayav to pay full damages when it enters the Reshus of the Nizak and damages there) like the opinion of Rebbi Tarfon.

(b) Had he merely been coming to teach us that he is Chayav for Shen as well as for Keren - then he should have said (not 'Chayav ba'Kol', but) 'Chayav al ha'Kol'.

(a) In the Seifa, when Rebbi Shimon ben Elazar says 'Lo la'Zeh ve'Lo la'Zeh, K'gon Chatzer she'Eino shel Sheneihem, Chayav bah Al ha'Shen ve'Al ha'Regel', he cannot mean that the Chatzer belongs to neither of them - because then, it would not be 'S'dei Acher'.

(b) So he must mean that it belongs to one of them - the Nizak, and not to both.

(c) We will then reconcile the continuation 'Tam Meshalem Chatzi Nezek, u'Mu'ad Nezek Shalem' with the Reisha, which we just established like Rebbi Tarfon - by establishing the Reisha like Rebbi Tarfon, and the Seifa, like the Rabbanan.

(d) It is acceptable to present the Reisha of a Beraisa like one Tana, and the Seifa, like his disputant - for that is precisely what Shmuel did, telling his disciple Rav Yehudah to follow suite.

(a) Ravina establishes the entire Beraisa like Rebbi Tarfon. In order to do this, he explains 'Lo la'Zeh ve'Lo la'Zeh' to mean - that the Chatzer belongs to one of them (the Nizak) for Peiros (rendering it 'S'dei Acher'), but to both of them for oxen (rendering it a Reshus ha'Rabim, where Rebbi Tarfon agrees that Keren pays Chatzi Nezek.

(b) The problem with Ravina's interpretation of the Seifa - is that there are then only three categories of location, and not four as stated by the Beraisa (seeing as the fourth is nothing more more than a combination of two of the categories that he mentioned previously.

(c) Rav Nachman bar Yitzchak resolves the problem - by establishing three categories, but in four locations.




(a) When the Tana of our Mishnah says ...
1. ... 'Shum Kesef' - he means that Beis-Din carefully assess the damage, and not that the Nizak just takes the article which caused the damage as compensation.
2. ... 'Shaveh Kesef' - he means that Beis-Din only take up the case on behalf of the Nizak if the Mazik has Karka (as will be explained shortly).
(b) The Beraisa establishes 'Shum Kesef' in a case where a cow first damaged a cloak - either because of Regel or because of Keren, and then the cloak damaged the cow - because of Bor (see Tosfos).

(c) The cow must have damaged the cloak in the Reshus ha'Nizak (see Tosfos), whilst the cloak damaged the cow in the Reshus ha'Rabim.

(a) The Beraisa interprets 'Shaveh Kesef' to mean - Karka.

(b) If the Nizak seized Metaltelin - Beis-Din will authorize him to claim his debt from them.

(c) We reject Rabah bar Ula's interpretation that 'Shaveh Kesef' implies something that ...

1. ... is worth any amount of money, implying Karka, because it is not subject to Ona'ah (overcharging) - on the grounds that it would then also incorporate Avadim and Sh'taros, which are not subject to Ona'ah either.
2. ... can be acquired with money, implying Karka - on exactly the same grounds, since Avadim and Sh'taros can be acquired with money, too.
(d) The ramifications of the Halachah that Karka, Avadim and Sh'taros are not subject to Ona'ah are - that if one overcharged by a sixth or more, the excess need not be returned.
(a) Rav Ashi finally extrapolate from 'Shaveh Kesef' that the Tana means to preclude Metaltelin - by Darshening 'Shaveh Kesef', ve'Lo Kesef (and all the above, which can be used in bartering, are considered Kesef).

(b) Rav Huna B'rei de'Rav Yehoshua reconciles our Mishnah with the Beraisa "Yashiv", 'Lerabos Shaveh Kesef ke'Kesef, va'Afilu Subin' - by establishing our Mishnah when the Mazik is no longer alive, and the Nizak is claiming from the Yesomim.

(c) The basis of this Halachah is the principle 'Metalteli de'Yasmi Lo Mishtabdi le'Ba'al-Chov' (because the Yesomim might have bought them after their father's death).

(d) When the Beraisa says that if the Nizak seized Metaltelin, Beis-Din will allow him to claim his debt from them - the Tana is speaking when he did so during the lifetime of the father (whose entire estate is actually Meshubad to the Nizak - like it is with any debtor).

(a) When we initially interpret 'Bifnei Beis-Din' (mentioned in our Mishnah) to mean that Beis-Din will only claim Nezikin from property that is available, and has not been sold, we mean - that the Nizak cannot claim his debt from the Lekuchos (people who subsequently purchased Karka from the Mazik).

(b) We reject this interpretation however, on the grounds that, throughout Shas, we presume that a debtor may claim from the Lekuchos.

(c) So 'Bifnei Beis-Din' means - that (at least some of) the claims of the Nizak (i.e. the Dinim of Shor Tam, which are a K'nas, see Tosfos DH 'P'rat') can only be handled by a Beis-Din shel Mumchin (an expert Beis-Din), but not by ordinary people who did not receive Semichah.

(a) And we interpret the Mishnah 'Al-Pi Eidim' to mean - that (again, with regard to Shor Tam) the Nizak is only obligated to pay if it is only the Eidim who implicate him, but not if he himself first admitted to his ox having damaged.

(b) We query this interpretation however - on the grounds that according to some opinions (which will be quoted later), as long as there are witnesses, the Nizak is Chayav, even if they testify only after the Nizak has admitted.

(c) We therefore explain the need to insert 'Al-Pi Eidim' by citing the continuation of our Mishnah '(Al-Pi Eidim) B'nei Chorin u'B'nei B'ris'. When the Tana says ...

1. ... 'B'nei Chorin' - he means to preclude Avadim.
2. ... 'B'nei B'ris' - Nochrim.
(d) The Tana needs to mention both, because, had he mentioned only ...
1. ... B'nei Chorin, we might have thought that Nochrim are eligible to testify - seeing as they have Yichus (as the Pasuk writes in Melachim "Hadrimon ben Tavrimon ... "), which an Eved does not, as the Torah writes in Vayeira, in connection with Eliezer Eved Avraham, "Shevu Lachem Poh Im ha'Chamor", from which Chazal Darshen 'Am ha'Domeh la'Chamor').
2. ... B'nei B'ris, we might have thought that Avadim are eligible to testify - because they are obligated to fulfill all the Mitzvos that a Jewish woman is obligated.
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