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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 23

BAMA KAMA 23 & 24 - This daf has been dedicated l'Iluy Nishmas Esther Chaya Rayzel bas Gershon Eliezer, upon her Yahrzeit and Yom Kevurah, by her daughter and son-in-law, Jeri and Eli Turkel. Esther Friedman was a woman of valor who was devoted to her family and gave of herself unstintingly, inspiring all those around her.



(a) Rava's problem with Rebbi Yochanan (who holds 'Isho Mishum Chitzav') from the Torah's exemption of 'Tamun ba'Eish' is - that the exemption (which is based on an element of O'nes) clashes with the Pasuk "Petza Tachas Patza", from which we learn that Adam ha'Mazik is liable even for Shogeg and O'nes.

(b) Even without the D'rashah from "Petza Tachas Patza", we know that Chitzav is liable for Tamun, too - because arrows always damage by penetrating into hidden areas that cannot be seen.

(c) Initially, Rava establishes 'Tamun' - when independently of the fire, a fence fell down in the Chatzer where the fire was already raging, enabling the fire to reach the haystack and what is hidden inside it and to burn it.

(d) We reject Rava's explanation however, on the grounds - that if that were so, why would the exemption be confined to Tamun? It ought also to incorporate all damages that occurred to objects on the other side of the fence, even those that are Galuy (such as the haystack itself).

(a) So we relearn Rebbi Yochanan, who now obligates every Eish because of Mamon, as well as Chitzav. One will be Chayav because of Mamon, even though he is no longer Chayav because of Chitzav ('Kalu Lo Chitzav') in a case - where it was possible to rebuild the fence that fell down before the fire reached that spot, exempting him from the Chiyuv of Chitzim, but he failed to take the opportunity, adopting the Chiyuv of Mamon (like an ox before whom one left the gate open. (See also Hagahos ha'G'ra).

(b) Seeing as Rebbi Yochanan concedes to Resh Lakish that 'Isho Mishum Mamono', the ramifications of the Machlokes between Rebbi Yochanan and Resh Lakish are - where one's fire damaged a person, in which case, according to Rebbi Yochanan, one is obligated to pay the four things (rather than just Ne zek).

(c) The four things are Nezek, Tza'ar, Ripuy and Sheves, not Boshes - because a Mazik is only Chayav Boshes when he damages willfully (as we shall see later).

(a) We did not state the basic difference between the two opinions as being when the fire did not belong to the person who did the damage (as we explained earlier) in cases when the animal who caused the damage did not spread the fire with its body - because the expression 'Isho Mishum ... ' insinuates that they are arguing even when the fire did belong to him, and because that is not so common.

(b) Until now, we interpreted the ramifications of their Machlokes - in a case when a fence fell down not as a result of the fire ... (as we just explained before concluding that Rebbi Yochanan concedes 'Isho Mishum Mamono').

(a) According to Rebbi Yochanan, the Tana obligates the owner of the dog to pay half of the damage on the haystack. We ask why the owner of the coal is not liable on the other half. According to Resh Lakish - he ought to pay full damages (because, as we learned earlier, he exempts the owner of the dog from paying for the haystack altogether [apart from the spot where the coal landed]).

(b) We therefore establish the Mishnah when the owner of the coal guarded his coal to the best of his ability. The dog nevertheless managed to obtain it - by digging its way under the door.

(c) We can extrapolate from this - that it is 'Urcheih' for a dog to dig in this way, and that the owner would therefore be liable to pay full damages.

(d) The dog have eaten the cake, says Rav Mari bar Kahana, by the haystack belonging to the owner of the cake (because 'Shen' is only liable in the Reshus of the Nizak).

(a) We ask whether a cow's mouth is considered the owner's domain, or the Nizak's (because that is where it is)?

(b) The ramifications of the She'eilah are - that according to the first side of the She'eilah, the owner of the animal will always be Patur from what was hitherto considered to be the standard case of Shen.

(c) We try to resolve the She'eilah from our Mishnah - which obligates the owner of the cow to pay for the cake which it took and ate by the haystack (implying that the mouth of a cow is considered the domain of the Nizak).




(a) If a cow's mouth is considered to be the owner's domain, Rav Mari Brei de'Rav Kahana initially establishes the standard case of Shen when the animal scratched itself against a wall and toppled it down or when it rolled over fruit and spoiled it (both for pleasure).

(b) This interpretation of Shen is wrong however - inasmuch as it does not conform with the Pasuk (the source of Shen) "Ka'asher Yeva'er ha'Galal", which implies that the animal destroys the Nizak, and not just causes its deterioration

(c) Ravina and Rav Ashi therefore adds to the above 'Shaf Tzalmi' and 'Pas'i Pesu'i' respectively.

1. 'Shaf Tzalmi' - means that whilst rubbing against the wall, the animal rubbed out a picture that was etched on it.
2. 'Pas'i Pesu'i' - means that when it rolled over the fruit it pressed them into the mud, rendering them completely useless, or alternatively, that it knocked over receptacles containing beverages in the process.
(a) We learned in a Beraisa that if Reuven incited a dog or a snake to bite Shimon, he is Patur. We infer from here - that Reuven is Patur, but the owner of the dog is liable, from which we can extrapolate that 'Pi Parah ke'Chatzar ha'Nizak Dami'.

(b) We refute this however, in two ways. One of them amends the Beraisa to read 'Patur *Af* Meshaseh', implying that the owner of the animal is certainly Patur; the other - that the Tana speaks when Reuven also pulled out the animal's fangs, and it was outside its mouth that it bit Shimon's hand.

(a) In another Beraisa, where Reuven places a snake's mouth on Shimon's hand and it bites and kills him, Rebbi Yehudah declares him Chayav Miysah. According to the Chachamim - he is Patur.

(b) Rav Acha bar Ya'akov bases the Machlokes on where the snake's poison is situated. According to ...

1. ... Rebbi Yehudah - it is situated between its teeth.
2. ... the Rabbanan - the snake draws it from its body.
(c) Consequently - according to the former, one attributes the killing to Reuven (and not to the snake); whereas, according to the latter, it is the snake that chose to kill (in which case the snake must be killed [like every animal that killed a person], whereas Reuven is Patur).

(d) Assuming 'Pi Parah ke'Chatzar ha'Mazik', Rebbi Yehudah renders him Chayav Miysah on the grounds - that the She'eilah of 'Pi Parah' is confined to having to pay for damages, not to whether one is Chayav Miysah for killing someone (as we shall now see).

(a) The Beraisa says that if Reuven's (Mu'ad) ox gored Shimon and killed him, when he entered his Chatzer without permission - that ...
1. ... the ox must be stoned to death.
2. ... the owner is exempt from paying Kofer
(b) We prove from this Beraisa what we just said - that although regarding Nezek, the argument 'What were you doing in my domain?' exempts the Mazik from paying, it does not exempt (even an ox) from the death-penalty.
(a) When Rav Yosef asked Abaye to go and instruct his (Rav Yosef's) neighbors the B'nei Tarbu to lock up the oxen that were causing him damage he replied - that there was no point in going, because the B'nei Tarbu would only send him back with the message that Rav Yosef should rather build a fence to prevent this from happening (see Tosfos DH 'Yachli Lemeimar').

(b) If every potential Nizak were indeed to put up a fence, then, apart from the eventuality that the Mazik's animal digs underneath the fence, as we learned earlier), the case of Shen might be - when the fence fell down during the night, and before the Nizak had a chance to erect it, the animal came in and caused damage.

(c) Rav Yosef (or Rabah) announced that the goats that were causing damage, and that, after receiving a couple of warnings, continued to cause havoc - must be put up for sale immediately and Shechted, even though market day had not yet arrived, and they would not obtain the full price for them.

(d) By announcing 'de'Salkin le'Eila de'Nachsin le'Tata' he meant - that both those who go from Bavel to Eretz Yisrael and those who go from Eretz Yisrael to Bavel need to know this.

(a) According to Rebbi Yehudah, an ox becomes a Mu'ad after having been warned on three consecutive days, and it regains its status of Tam - if three consecutive days pass on which it sees oxen (or other animals) and does not gore them.

(b) According to Rebbi Meir, the ox become ...

1. ... a Mu'ad - by goring three oxen, even on the same day.
2. ... a Tam once again - if children (see Tosfos DH 'she'Yehu') are able to stroke it, without it reacting.
(c) According to Abaye, who learns two D'rashos from the word "mi'T'mol", Rebbi Yehudah learns from the Pasuk "ve'Im Shor Nagach Hu *mi'T'mol* *Shilshom* *ve'Lo Yishmerenu Be'alav"* - that an ox becomes a Mu'ad after having gored on three consecutive days.

(d) Rava argues with Abaye - because, according to him "mi'T'mol" implies only one day, and not two. Consequently, the ox becomes a Mu'ad after having gored twice.

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