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Bava Kama 26



(a) What leads us to suggest that Shen va'Regel in the Reshus ha'Nizak should only pay Chatzi Nezek, like Keren, is - the fact that if Keren, which is liable in the Reshus ha'Rabim, pays only Chatzi Nezek in the Reshus ha'Nizak, then Shen va'Regel, which is Patur in the Reshus ha'Nizak, should certainly pay only half.

(b) We refute this suggestion on the basis of the Pasuk "*Meitav Sadeihu u'Meitav Karmo Yeshalem*" - which implies full damages.

(c) Rebbi Yochanan extrapolates from "Yechetzun" that Keren is liable in the Reshus ha'Rabim - because, seeing as the Torah has already written "ve'Chatzu es Kaspo", the word is superfluous.

(d) We would otherwise have thought - that it would be Patur, using the reverse logic to that used in the previous question, where we ascertained that Keren is more lenient than Shen va'Regel in the Reshus ha'Nizak (inasmuch as it only pays Chatzi Nezek).

(a) We ask why Adam does not pay Kofer (in the event that he kills someone). What makes us believe that he should - is a 'Kal va'Chomer' from Shor, which does, even though it does not pay the four things (Tza'ar, Ripuy ... ), in which case, Adam, who does pay the four things, should certainly pay Kofer.

(b) It would be possible for him to pay Kofer - if there where there were witnesses but no warning (in which case he would not be Chayav Miysah or Galus).

(c) We refute this suggestion based on the Pasuk (written in connection with Kofer) "ke'Chol Asher Yushas *Alav*" - from which we infer "Alav" (on the man whose Mu'ad *ox* gored and killed a person), but not on *a man* who did the same thing.

(d) We learn from the Pasuk "*Ish* Ki Yiten Mum ba'Amiso*" - that only a person (Adam) who damages is obligated to pay the four things, but not an ox. Otherwise, we would have obligated him to pay, using the reverse logic (which makes Shor more stringent than Adam), to that which we tried to apply in the previous case.

(a) We ask whether an animal that unintentionally tramples on a baby and kills it is liable to pay Kofer. The owner might ...
1. ... be liable - because the animal is a Mu'ad regarding Regel (even after the first time), no less than Keren after three times.
2. ... be exempt - because maybe the liability of Kofer is peculiar to Keren, where the animal damages willfully.
(b) Rebbi Tarfon in a Beraisa says that if Reuven's ox enters Shimon's Chatzer without permission and gores and kills him - Reuven is obligated to pay full damages, even though the ox is only a Tam.

(c) We assume that Rebbi Tarfon holds like Rebbi Yossi Hagelili, who says - that a Tam that gores someone in the Reshus ha'Rabim must pay Chatzi Nezek.

(d) We now prove from here - that Regel must be Chayav Kofer just like Keren, and Rebbi Tarfon learns that the same ox will pay full Kofer in the Reshus ha'Nizak - from a 'Kal va'Chomer' from Regel, which is Patur in the Reshus ha'Rabim, yet it is more stringent than Keren in the Reshus ha'Nizak. Consequently, Keren in the Reshus ha'Nizak should certainly pay full Kofer.

(a) Rav Shimi from Neherda'a tries to repudiate this proof. He claims that it is not from a 'Kal va'Chomer' from Regel that Rebbi Tarfon learns that Keren pays full damages for Kofer in the Reshus ha'Nizak - but from the same 'Kal va'Chomer' from Nizakin of Regel.

(b) We refute Rav Shimi's proposal to learn the Din of Kofer from Nizakin of ...

1. ... Regel - because Nizakin pertains also to Eish (which Kofer does not).
2. ... Tamun be'Regel (which is exempt by Eish) - because it pertains to Bor (which Kofer does not).
3. ... Keilim (which are exempt by Bor) - because it pertains to fire (which Kofer does not).
4. ... Keilim Temunim (which are exempt by Bor) - because they pertain to Adam (which Kofer does not).
(c) So we Rebbi Tarfon can only have learned his Din from Kofer of Regel. Rav Acha mi'Difta proves that in any event, he must hold 'Yesh Kofer be'Regel. Had he held 'Ein Kofer be'Regel', and learned his Din from Nezikin de'Regel - we could have asked how we can possibly learn Kofer of Keren (in the Reshus ha'Nizak) from Nezikin of Regel, seeing as Keren has the Chumra of Kofer, which Regel does not have.
(a) A person is always Mu'ad, even if he damages be'Shogeg - even if he damages in his sleep (provided the Nizak did not arrive after the Mazik fell asleep [see Bartenura and Tosfos-Yom-Tov]).

(b) Based on the fact that 'Shiber es ha'Keilim' in our Mishnah is speaking be'Shogeg, we learn from the Tana in our Mishnah's juxtapositioning of 'Sima es Ein Chavero' to 'Shiber es ha'Keilim' - that just as the latter is exempt from paying the four things, so too, is the former.




(a) Chizkiyah and Tana de'Bei Chizkiyah learn from "Petza Tachas Patza" - that a person who damages is liable even if he is a Shogeg or on an O'nes.

(b) We learn from the same words - that the Mazik is liable to pay for Tza'ar even when he is already paying Nezek.

(c) If not for this Pasuk, we would establish the Din of Tza'ar which the Torah already obligates - by a case of Tza'ar where there is no Nezek (such as where the Mazik burned the Nizak's fingernails).

(d) We learn two D'rashos from the same words - one from "Petza Tachas Patza", and the other, because the Torah could have written "Petza be'Patza".

(a) If someone stands up and a stone of which he is unaware falls from his clothes and damages someone's property, Rabah rules that he is liable, as we just learned from "Petza Tachas Patza" - but he is not liable to pay all five things (besides Nezek), unless he has been negligent.

(b) Nor is he Chayav if the stone rolls four Amos on Shabbos - because one is only Chayav for an act that one deliberately performs (only he forgot that it is Shabbos or that what he is doing is forbidden on Shabbos), but not for an inadvertent act.

(c) We learn from the Pasuk "Makeh Nefesh bi'Shegagah" - that one is only Chayav if he is aware of what he is doing.

(a) If the stone falls on his Eved, knocking out his eye or his tooth, it will depend on the opinions of Raban Shimon ben Gamliel and the Rabbanan whether the Eved goes free or not. According to the Rabbanan, if a master complying with his Eved's request, begins painting his Eved's eye or scraping his tooth, but then goes on to blind him or to extract his tooth in the process - the Eved goes free (even though he damaged him unintentionally), and the same will apply in our case.

(b) Raban Shimon ben Gamliel learns from the Pasuk "Ve'shichesah" - that the Eved only goes free if his master actually intended to blind his eye or to extract his tooth. Likewise here.

(c) The only one of the above Dinim that will change in a case where he was initially aware of the stone, but he finally forgot that it was there is - that of Galus, which now enters the realm of Shogeg, in which case, he will go into Galus.

(a) If he intended to throw the stone two Amos, but it traveled four, the Din remains the same with regard to all the other areas of Halachah. With regard to Galus, he aid - 'Asher Lo Tzadah, Amar Rachmana, P'rat le'Niskaven Li'zerok Shetayim, ve'Zarak Arba'ah'.

(b) What he might have meant is that the Torah comes to preclude this case from Meizid. It is included in Shogeg, and he must run into Galus. Alternatively, he might have meant is - that this case is not included in the Din of Shogeg which the Pasuk is currently discussing, because "Asher Lo Tzadah" implies that he did not intend to throw the object in the direction that it actually traveled, which is not the case here.

(c) If he intended to throw the stone four Amos, but it traveled eight, the Din remains unaltered regarding Nizakin, the four things, and Eved. With regard to ...

1. ... Galus - he will be Chayav (for the same reason as he is Chayav according to the alternative explanation in the previous case).
2. ... Shabbos - he will be Chayav, but only if he specifies that he doesn't really mind wherever the stone falls (otherwise, it is still not 'Meleches Machsheves').
(d) The difference regarding the Din of Shabbos between where he intended to throw the stone two Amos and it traveled four to where he intended to throw it four Amos and it traveled eight is - that in the former case, he is Patur even if he specified that he doesn't really mind wherever the stone falls (because whether he does or whether he doesn't, it does not fall into the category of 'Meleches Machsheves'.
(a) Rabah rules that if Reuven threw his vessel from the roof and Shimon broke it with a stick before it landed - Shimon is not liable, because he broke a vessel which, to all intents and purposes, is already broken.

(b) In a case where Reuven threw Shimon's vessel from the roof and ...

1. ... Levi came and removed the cushions on which it was due to land, causing it to break upon landing - he is Patur, because he did nothing to the actual vessel. All he did was to remove that what was protecting it. This is known as G'rama, and as we have already learned, one is Patur (be'Dinei Adam) from G'rama.
2. ... then removed the cushions - he is also Patur because, when he threw the vessel, it was not destined to break, and when he removed the cushions, 'his arrows had already terminated'.
(c) In a case where Reuven threw a baby from the roof and Shimon caught him on his sword, Rabah connects this with a Machlokes between Rebbi Yehudah ben Beseira and the Rabbanan. The Rabbanan in a Beraisa, hold that if ten men beat a man to death, they are all Patur. Rebbi Yehudah ben Beseira says - that if they hit him consecutively, then the last one is Chayav.

(d) The Rabanan learn their Din from the Pasuk - "ve'Ish Ki Yakeh Kol Nefesh Adam Mos Yumas", which implies that the murderer took the entire soul of the murdered man, and not just a part of it.

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