ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Kama 24
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) In spite of the Pasuk "T'mol, Shilshom ve'Lo Yishmerenu" (Rebbi
Yehudah's source for saying that Mu'ad depends on days), Rebbi Meir
considers an animal a Mu'ad even on the same day - because, he says, if it
is a Mu'ad when its gorings are more spaced out, then how much more so, when
they are closer together.
Rebbi Meir chooses to include the number of days in the Hekesh of women to
men, and to preclude the number of sightings from "ve'Zos" (and not
vice-versa) is (not because it is more logical to include days than
sightings [which would be a Pircha on his own 'Kal va'Chomer'] but) -
because it is more correct to preclude sightings from "ve'Zos", since that
is the topic of the Pasuk there.
(b) When the Chachamim retorted 'Zavah Tochi'ach', they were referring to -
a woman who becomes a Zavah when she has three sightings on three
consecutive days, but not if she sees three times on the same day
(ostensibly, dispensing with Rebbi Meir's 'Kal va'Chomer').
(c) And when, to counter this, Rebbi Meir quoted the Pasuk "*ve'Zos* Tih'yeh
Tum'aso be'Zovo" - he meant to reply that the preclusion of a Zavah from the
Din of three sightings is not because logically, sightings are any worse
than days, but because of the 'Gezeiras ha'Kasuv' of "ve'Zos".
(d) On the other hand, the Tana learns from "ve'ha'Zav es Zovo la'Zachar
ve'la'Nekeivah" - that a woman, like a man, becomes a Zavah when she sees on
three consecutive days.
(a) In another Beraisa, Rebbi Yossi holds like Rebbi Yehudah with regard to
becoming a Mu'ad, but like Rebbi Meir with regard to its regaining its
status of Tam. Rebbi Shimon has a fourth opinion - holding like Rebbi Meir
with regard to becoming a Mu'ad, but like Rebbi Yehudah with regard to its
regaining its status as a Tam.
(b) Rav Nachman Amar Rav Ada bar Ahavah rules like Rebbi Yehudah with regard
to the former Din, but like Rebbi Meir with regard to the latter - because
that is how Rebbi Yossi holds, giving Rebbi Yehudah two votes in the Reisha
and Rebbi Meir two, in the Seifa.
(c) The reason that he did not take the reverse stance, following the
opinion of Rebbi Shimon, giving Rebbi Meir two votes in the Reisha and
Rebbi Yehudah two, in the Seifa is - because he was really relying on the
principle 'Halachah ke'Rebbi Yossi, Ho'il ve'Nimuko Imo' (the Halachah is
always like Rebbi Yossi [provided he does not argue with a majority],
because his reasons and proofs are very sound).
(a) They asked a She'eilah whether the three days warning are for the
benefit of the ox or the owner. The difference will be - in a case when all
three sets of witnesses only appear in Beis-Din after the ox has gored on
three consecutive days, in which case, the ox has had its three warnings
(which comprises nothing more than ascertaining that it gored on three
different days), whereas the owner (who requires a warning to give him a
chance to tame his animal), has not.
(b) We try to resolve this She'eilah from a Beraisa, which opens with the
statement that - the warning must take place in front of the owner and in
front of Beis-Din.
(c) When the Tana says that if two different witnesses warned the ox each of
the three times that it gored, they are considered ...
1. ... three sets of witnesses - he means that in the event that one, or
even two, of them becomes disqualified, the testimony of the third pair
remains intact, and the Mazik is obligated to pay Chatzi Nezek for each
subsequent testimony that still stands.
(d) Despite the fact that the defendant is now Patur from paying Nezek
Shalem, it does not follow that the first pair of witnesses (and
subsequently the second pair, should they become Zomemin, too) are obligated
to pay for the full damage that they attempted to make the Nizak pay -
because Eidim Zomemin are only punishable if all the witnesses concerned
become Zomemin, and not just some of them.
2. ... one set of witnesses as far as Hazamah is concerned - he means that
the ox remains a Tam, and the Mazik is exempt from paying full damages
(though this seems obvious, seeing as there are no witnesses who testify
that the animal gored three times).
(a) In the event that the third pair too, are proved to be Zomemin - each
pair must pay Chatzi Nezek for the damage that the ox did when it was a Tam,
and they share the additional half damage (of the Ha'ada'ah [the damage that
it did when after becoming] a Mu'ad) between them.
(b) We now try to prove from here that it is the ox that becomes a Mu'ad and
they all came on the third day (as we explained earlier) - because if it was
the owner (and they all came on three different days, why can the first set
of witnesses not say that they came to obligate the Mazik to pay Chatzi
Nezek, and knew nothing about the other two sets). In other words, why
should they have to pay towards the second Chazti Nezek of the Ha'da'ah?
(c) Rav Kahana counters this by asking - that even if they come to make *the
ox* a Mu'ad, why can the last set of witnesses not present the same
argument? Why can they not argue that they came to obligate the owner Chatzi
Nezek, and were not aware of the fact that there were other witnesses who
were coming to testify that the ox had gored on two previous occasions?
(a) We therefore establish the Beraisa when all three pairs of witnesses
were signalling to each other, a clear sign that the third set of witnesses
were fully aware of the other two sets intentions, and that they themselves
intended to declare the ox a Mu'ad. A similar answer is given by Rav Ashi,
who proves that all the sets of witnesses must have known about each other -
because they all entered the Beis-Din together.
(b) Either way, we have now proved - that the witnesses come to make *the
ox* a Mu'ad.
(c) Ravina establishes the Beraisa when the third set of witnesses only knew
the owner, but not the ox - and they testify that there was a goring ox in
his herd (obligating the owner to watch his entire herd).
(d) He also agrees that the witnesses come to declare the ox a Mu'ad,
because when the first two pairs testified on the first and second days, how
could they possibly know that, on the following day, another pair would
testify on the third goring?
(a) We ask what the Din will be in a case where Levi incites Shimon's ox to
bite Reuven - whether Shimon is liable.
(b) Even though he did nothing, he might nevertheless be liable, for not
getting rid of his animal (which he ought to have known was dangerous), or
at least for not keeping it out of harm's way.
(c) Levi is not Chayav for inciting the dog against Reuven - because what he
did is considered 'G'rama' (causing damage indirectly, for which is not
liable at the hand of Beis-Din, as we shall see later).
(a) Rebbi Zeira cites our Mishnah 've'Tam, she'Yehei Tinokos Memashmeshin Bo
ve'Eino Noge'ach', from which he tries to resolve the current She'eilah - by
extrapolating that if it would gore them, the owner would be liable.
(b) Abaye refutes this proof however, on the grounds that the Tana does not
even hint that the owner would have been Chayav if the ox had gored the
children. Even if he would not be liable - the significance of the ox not
goring the children is that it would change its status into a Tam.
(a) We try to resolve the She'eilah from the Beraisa 'Shisah Bo es ha'Kelev,
Shisah Bo es ha'Nachash Patur' - by inferring that the inciter may well be
Patur, but the owner is liable.
(b) We negate this inference by - amending the Beraisa to read 'Af Meshaseh
(c) Even assuming that the owner of the dog is liable in the previous case,
says Rava, in a case where Reuven himself incited Shimon's dog which
subsequently bit him - he is Patur, because of the principle 'Kol
ha'Meshaneh u'Va Acher ve'Shinah Bo, Patur' (and here too, Reuven behaved
unconventionally by inciting the dog, in which case the dog is Patur if it
too, behaved unconventionally, by biting *him*).
(d) Rav Papa thought that Rava conformed - with Resh Lakish, as we shall now
(a) Resh Lakish says that if one cow passes another cow that is crouching in
the street, and the latter kicks the former, it is liable for damages. In
the reverse case, if the walking cow kicked the crouching one and damaged
it, he is Patur (because of 'Kol ha'Meshaneh ... ').
(b) Rava told Rav Papa - that really, in this latter case, he disagreed with
Resh Lakish, because, even though the walking cow is justified in walking
over the crouching one, it does not have the authority to kick it, and the
owner would therefore be liable.
(a) According to the Rabbanan, the owner of an ox that gored in the Nizak's
domain pays Chatzi Nezek, according to Rebbi Tarfon - he pays Chatzi Nezek.
The Rabbanan do not accept Rebbi Tarfon's explanation - on the grounds that
seeing as the 'Kal va'Chomer' must, at one point, rely on Keren in the
Reshus ha'Rabim, 'Dayo' will still apply at that point, even though it is
not with regard to the main point of the 'Kal va'Chomer'.
(b) And he derives this - from a 'Kal va'Chomer' from Keren in the Reshus
ha'Rabim, because seeing as it is more stringent there (paying Chatzi Nezek)
than Shen va'Regel (which is Patur altogether), it remains more stringent in
the Reshus ha'Nizak, too, obligating him to pay full damages.
(c) The Rabbanan ask on the 'Kal va'Chomer' however - from the principle of
'Dayo La'vo min ha'Din Lih'yos ke'Nadun' (meaning that, since we learn Keren
in the Reshus ha'Nizak from Keren in the Reshus ha'Rabim, the outcome cannot
possible be more stringent than the source (which is Chayav to pay only
(d) Rebbi Tarfon counters their Pircha - by relearning the 'Kal va'Chomer'
by Keren in the Reshus ha'Rabim (not from Keren in the Reshus ha'Rabim -
although he will need to come on to that too, but) from Shen va'Regel in the