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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Kama 19

BAVA KAMA 19 - sponsored by Dr. Eli Turkel, l'Iluy Nishmas his mother, Golda bas Chaim Yitzchak Ozer (Mrs. Gisela Turkel), whose Yahrzeit is 25 Av. Mrs. Turkel accepted Hashem's Gezeiros with love; may she be a Melitzas Yosher for her offspring and for all of Klal Yisrael.



(a) On the previous Amud, we cited Rav Ashi's She'eilah whether, according to the Rabbanan, there is Shinuy by Tzeroros or not. The reason that not is - because there is no such thing as less than Chatzi Nezek.

(b) Rava asked earlier whether there is Ha'ada'ah by Tzeroros or not. Rav Ashi declines to resolve his She'eilah from there (on the grounds that if there is Shinuy by the first three times to pay Revi'a Nezek, then there can be no Nezek Shalem by the fourth time) - by suggesting that Rava himself asked his She'eilah as an extension to his (Rav Ashi's). In other words, he meant first to ask whether there is a Shinuy by Tzeroros, and if there is not, whether is Ha'ada'ah.

(c) Rav Ashi then asks whether Sumchus, who holds that Tzeroros pays Nezek Shalem, will concede that in a case of Ko'ach Kocho, he pays Chatzi Nezek - because then, he will establish the 'Halachah le'Moshe mi'Sinai' by Ko'ach Kocho, which is preferable to saying that he does not hold of it at all.

(d) The outcome of Rav Ashi's She'eilah is - Teiku (Tishbi Yetaretz Kushyos ve'Ibayos).

(a) We learned in our Mishnah 'Haysah Meva'etes O she'Hayu Tzeroros Menatzin mi'Tachas Raglehah ve'Shavrah es ha'Keilim', Meshalem Chatzi Nezek', and we query the Tana's intentions regarding the second phrase; whether the Tzeroros is an independent case, and speaks ke'Urcheih, or it is an extension of the first, and speaks when he kicked up the Tzeroros deliberately. The ramifications of this She'eilah are - whether the author of the Mishnah is the Rabbanan or Sumchus (respectively).

(b) We try to resolve our She'eilah from the Seifa 'Darsah al ha'K'li ve'Shavraso, ve'Nafal ha'Shever al K'li Acher ve'Shavro, al ha'Rishon Meshalem Nezek Shalem, ve'al ha'Acharon, Chatzi Nezek', which cannot go like Sumchus - because according to him, Tzeroros pays Nezek Shalem.

(c) We nevertheless manage to establish the Mishnah like Sumchus - by re-interpreting 'Rishon' as 'Rishon le'Hatazah' (meaning the first vessel that was broken through Tzeroros [Kocho], and 'Sheini', as 'Sheini le'Hatazah' (meaning the second vessel that was broken through Tzeroros [Ko'ach Kocho]), and by establishing that sSumchus differentiates between Ko'ach and Ko'ach Kocho.

(d) The problem with this explanation is Rav Ashi's recent She'eilah - whether Sumchus concedes to Chatzi Nezek Tzeroros by Ko'ach Kocho or not. Why did Rav Ashi not resolve it from our Mishnah?

(a) In fact, we conclude, Rav Ashi establishes our Mishnah like the Rabbanan, and he presents the current She'eilah differently. According to him, the She'eilah is - whether the case of Tzeroros speaks ke'Urchaihu, which is why he pays Chatzi Nezek, but had it damaged deliberately, then he would only have had to pay a quarter of the damage ('Yesh Shinuy bi'Tzeroros'); or whether the Tana speaks when it kicked up the Tzeroros deliberately, and still he pays Chatzi Nezek ('Ein Shinuy li'Tzeroros').

(b) This She'eilah too, remains unresolved.

(c) Rebbi Aba bar Mamal asked Rebbi Ami or Rebbi Chiya bar Aba a third She'eilah that will remain unresolved. He asked him whether if an animal was walking in a place where it was inevitable for it not to kick up Tzeroros, but as it walked past, it did so deliberately - it would be considered Urcheih (and he would have to pay Chatzi Nezek Tzeroros), or whether it was considered a Shinuy, and assuming that 'Yesh Shinuy li'Tzeroros', he would have to pay for only a quarter of the damage.

(d) Alternatively, he asked him whether it was considered Tzeroros, for which he must pay half damages, even if the animal was a Mu'ad; or whether it was considered Keren, and in the case of a Mu'ad, he would have to pay in full.

(a) Rebbi Yirmiyah asked Rebbi Zeira whether one is Chayav for Tzeroros in the Reshus ha'Rabim (like Keren) or not (like Regel).

(b) Rebbi Zeira replied that logically, Tzeroros is considered Regel, and is Patur.

(c) And when he asked him whether the owner would be Chayav if the animal kicked up pebbles in the Reshus ha'Rabim, but they damaged in the Reshus ha'Nizak, he replied - that since there is no Akirah (the place where the animal kicked up the stones is not one of Chiyuv), there is no Hanachah (the place where the damage is performed does not create a Chiyuv) either.

(a) The Beraisa states ' ... Hitizah Bein bi'Reshus ha'Yachid, Bein bi'Reshus ha'Rabim, Chayav'. Rebbi Zeira establishes the damage as having taken place specifically in the Reshus ha'Yachid.

(b) Even though Rebbi Zeira said earlier 'Akirah Ein Ka'an, Hanachah Ein Ka'an' - the Beraisa has forced him to retract.

(c) The Beraisa establishes our Mishnah 'Darsah al ha'K'li, ve'Shavraso, ve'Nafal ha'Shever al K'li Acher ve'Shavro, al ha'Rishon Meshalem Nezek Shalem ... ', in the Reshus ha'Nizak. In the Reshus ha'Rabim with regard to ...

1. ... the first vessel - he would be Patur.
2. ... the second vessel - he would be Chayav.
(d) According to Rebbi Zeira, the damage, in the second case, took place in the Reshus ha'Yachid (as we just explained).



(a) The third proof that Rebbi Zeira retracted from his original position is from his interpretation of Rebbi Yochanan - who says 'Ein Chatzi Nezek Chaluk bein li'Reshus ha'Yachid, bein li'Reshus ha'Rabim'.


1. Rebbi Zeira establishes the case - by 'Hitiz bi'Reshus ha'Rabim, ve'Hizik bi'Reshus ha'Yachid'.
2. Alternatively, he establishes Rebbi Yochanan by Chatzi Nezek of a Tam (of Keren and not by Tzeroros at all), circumventing the problem with his original statement altogether?
(c) The basis for this distinction is - the two words "Yechetzun" and "Ve'chatz'u", that the Torah writes by Shor Tam.
(a) Rebbi Yehudah Nesi'ah and Rebbi Oshaya were sitting by the canopy of Rebbi Yehudah (ha'Nasi), when one of them asked the other whether the swishing of an animal's tail is considered Urcheih or not - to which the other one threw back the question whether the owner is expected to walk around holding the animal's tail?

(b) We cannot present the same argument by Keren - because Keren constitutes willful damage (for which is held liable in any case), whereas a swishing tail is Urcheih.

(c) Because this logic is irrefutable, the She'eilah in the first place must have been - not in a case when the animal just swished its tail, but when it did so more vigorously than usual.

(a) Rav Eina asked what the Din will be if a male animal causes damage in the Reshus ha'Rabim by swishing its organ. Despite the similarity to Keren (which is similar, inasmuch as there too, the damage is the result of an overpowering urge), it is different - inasmuch as it does not intend to damage (like Keren does).

(b) This She'eilah too, remains unresolved.

(c) Rav Huna (who initially establishes the case in our Mishnah, which declares a chicken a Mu'ad if an object that is tied to its foot damages, by Bor [when the object damaged when it was static]) confines the case to when it was tied there on its own - because if someone else tied it there, then *he* will be Chayav. Neither does it matter that the person who tied it was not the owner - because in the realm of damages, someone who picks up an object immediately becomes the owner as far as liability goes.

(d) It must be the owner of the animal whom the Tana of our Mishnah obligates to pay Chatzi Nezek, and not the owner of the article. Regarding the latter case, had he been ...

1. ... an O'nes - the Tana would have absolved him from paying.
2. ... negligent - then he would have obligated him to pay full damages.
(a) We initially think that the owner of the chicken is Patur from full damages because of the Pasuk "Ki Yichreh Ish Bor" - which teaches us that a person is not liable for a Bor that his animal creates.

(b) The problem with that suggestion is - why is he then Chayav to pay even half.

(c) So we switch the Chiyuv in our Mishnah - from Bor to Tzeroros (because the vessel damages whilst it is moving [and not when it is static, like we first thought]).

(d) So Rav Huna's statement did not pertain to our Mishnah at all, but was said independently. Rav Huna bar Mano'ach defines the Chiyuv of a 'Bor' that someone ties to the chicken's foot, as - 'Bor ha'Misgalgel be'Raglei Adam u've'Raglei Beheimah', which we already discussed in the first Perek.

(a) If someone's animal ate an article of clothing or a vessel ...
1. ... in the Reshus ha'Nizak - he must pay Chatzi Nezek (because it is not Urchah).
2. ... in the Reshus ha'Rabim - he is Patur (as will be explained in the Sugya).
(b) The Tana of our Mishnah says that if an animal benefits from what it ate in the Reshus ha'Rabim - the owner must pay for the benefit.

(c) In the same context, if his animal eats and benefits from ...

1. ... the middle of the street - the owner must pay for the benefit.
2. ... the side of the street - for the damage.
3. ... the entrance to the store - for the benefit.
4. ... the middle of the store - for the damage.
(a) A donkey normally eats barley?

(b) Even though it is not normal for a cow to eat barley, a donkey, oats, a dog to lap up oil or a Chazir to eat a piece of meat, the owner is nevertheless Chayav to pay full damages, should any of these animals do just that, even *if there is other food available* - because they will readily eat these specific foods *if there is not*.

(c) A cat that ate dates and a donkey that ate fish have in common - the fact that they too, are obligated to pay full damage (for the same reason).

(a) Rav Yehudah obligated the owner of the donkey that ate bread from a basket and then chewed the basket to pay - full damages for the basket as well as for the bread.

(b) He did not obligate him to pay in full for the basket too (despite the fact that it would have been quite normal for the donkey who had just eaten bread from a basket, to continue chewing the basket) - because, in this case, the donkey did not chew the basket straightway, but only some time later, which was not Urcheih.

(c) True, we learned earlier that one cannot claim K'nasos in Bavel (and Chatzi Nezek of Tam is a K'nas). In this case however, the Nizak seized the Mazik, in which case, Beis-Din do permit him to retain the Chatzi Nezek (as we learned there too).

(a) Rav Yehudah establishes the Beraisa 'Achlah Pas u'Basar ve'Tavshil, Meshalem Chatzi Nezek' - by a Chayah.

(b) To answer the discrepancy between this and what we learned a little earlier (that it is normal for a Chayah to eat meat (so why does the Tana obligate him to pay only Chatzi Nezek), we give three answers to this Kashya. When the Tana said ...

1. ... meat, he might have meant - roasted meat (which wild beasts do not eat).
2. ... a Chayah, he might have meant - a deer (which does not even eat raw meat either).
(c) We might even resolve the problem in the case of a Beheimah that ate raw meat - when it ate it from the table where people were sitting (which is unusual).

(d) In the case where a goat ate a turnip that it found on top of a barrel, and in the process, it climbed up the barrel and broke it, Rava obligated the owner to pay full damages even for the barrel.
It is indeed unusual for a goat to climb up on to a barrel (in which case, he should have charged him to pay for only half the barrel) - but not if it does so immediately after it had eaten the bread that was inside it (as was the case here).

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