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Bava Kama 27

BAVA KAMA 27 (4 Elul) - dedicated l'Iluy Nishmas Chaim Yissachar (ben Yaakov) Smulewitz of Cleveland on his Yahrzeit, by his daughter and son in law, Jeri & Eli Turkel of Raanana, Israel.



(a) According to the Rabbanan in a Beraisa, the Pasuk "ve'Nasan Pidyon Nafsho" (in connection with Kofer) refers to the value of the dead man. Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah says - that it is his own value that the Mazik pays.

(b) Rabah therefore say that if a Mu'ad ox came and caught the baby (that someone had thrown down from the roof) on its horns and killed it, the owner of the ox will be Patur from paying Kofer, according to the Rabbanan - because at that point the baby has no value.

(c) Rabah says that if a man fell from a rooftop and landed on a woman and inadvertently raped her ...

1. ... he is obligated to pay four out of the five things (not Boshes, as we shall see shortly)?
2. ... he does not acquire her should she happen to be his Yevamah.
(d) When the Mishnah in Yevamos rules that a Yavam acquires his Yevamah even be'Shogeg, it means for example, that he was unaware that the woman he was being Bo'el was his Yevamah, but not that he did not even intend to be Bo'el her.
(a) In the first of the previous cases, the man is not Chayav to pay Boshes - because he had no intention to cause the woman damage (let alone to embarrass her).

(b) He would have been liable for Boshes, too - had he deliberately turned over during his fall.

(c) Rabah bases this latter ruling on a Beraisa, where the Tana learns from the superfluous words "ve'Shalchah Yadah *ve'Hichzikah bi'Mevushav"* - that the Mazik must at least intend to do damage, in order to be Chayav Boshes.

(a) Rabah says that if about Reuven places a burning coal on Shimon's ...
1. ... heart and he dies - he is Patur, because Shimon should have removed it.
2. ... clothes and they burn - he is liable to pay, because seeing as it is not life-threatening, the owner did not remove it because he had the intention of claiming damages.
(b) Rava claims that both statements already appear in a Mishnah.
The Mishnah in Sanhedrin says that if Reuven ...
1. ... holds Shimon under water until he drowns - he is guilty of murder.
2. ... pushes him under the water and leaves go, and he drowns - he is Patur, because Shimon should have come up by himself.
(c) The Mishnah in 'ha'Chovel' says that if Shimon asks Reuven ...
1. ... to tear his shirt or break his barrel, and Reuven obliges - Reuven is liable to pay, because what he obviously meant was 'Break it and pay!'.
2. ... to tear his shirt or break his barrel, but adds that he will not be liable - then his condition stands, and Reuven is Patur.
(a) Rabah asks whether, if Reuven places a burning coal on the heart of his Eved - he is Patur, because the Eved should have removed it (like he would have done), or whether an Eved is like one's property, in which case he will be Chayav (because an Eved does not possess as much common sense as he does).

(b) Assuming that an Eved has the same Din as himself, Rabah then asks what the Din would be if Reuven placed a coal on the heart of Shimon's ox - whether he would be Chayav, because an ox does not have sufficient common sense to remove the coal, or Patur, because it does have instinct, and one would therefore have expected it to have shaken the coal off.

(c) His conclusion is - 'Avdo ke'Gufo, Shoro ke'Mamono'.

***** Hadran Alach Keitzad ha'Regel *****

***** Perek ha'Meni'ach *****


(a) Our Mishnah absolves Reuven from paying, should he trip over the barrel that Shimon left lying in the street and break it. In the event that Reuven got hurt however - he rules that the owner of the ox is liable to pay.

(b) The problem that our Mishnah shares with the Mishnah later 'Zeh Ba ba'Chavito, ve'Zeh Ba be'Koraso, Nishberah Kado shel Zeh be'Koraso shel Zeh ... ' (and with yet a third Mishnah in 'ha'Gozel') is - that they all begin talking about a 'Kad' and then switch to a Chavis (or vice-versa).

(c) The difference between a 'Kad' and a 'Chavis' is in size - the former is a small barrel, the latter, a large one.

(d) In the case in 'ha'Gozel' where the owner of the wine poured out all his wine in order to save the honey (which is more expensive than wine), the Tana rules - that all he is entitled to claim is the wages of a hired worker.

(a) Rav Papa explains that the Tana is coming to teach us that, to all intents and purposes, a Kad and a Chavis are one and the same. The Halachic ramifications of Rav Papa's statement are - that if Reuven agreed to sell Shimon a Chavis, he is entitled to supply him with a Kad (assuming that Shimon already paid - see Tosfos).

(b) This will not apply in a place where it is not customary to switch the names.

(c) Our Mishnah speaks - in a place where the majority of people call a Kad a Kad and a Chavis a Chavis, and it is only a minority who switch the names. And the Tana is teaching us that in money-matters, we do not follow the majority (against a Chazakah - see Tosfos).

(d) The ramifications of this Chidush in a case where Reuven sells Shimon an ox which is found to be a goring ox, and Shimon demands his money back on the grounds that most people buy and sell oxen for plowing) - are that he cannot retract, because (assuming that he has already received the money) Reuven can argue that he is from the minority, who sells his oxen for eating (so Shimon should go ahead and Shecht the ox).




(a) We initially think that Shimon should not be held responsible if Reuven trips over his ox in the street and breaks it - because a person should look where he is going.

(b) de'Bei Rav quoting Rav establish our Mishnah when Shimon placed his barrels across the entire width of the street - Shmuel establishes it at night-time.

(c) When Rebbi Yochanan establishes the Mishnah 'be'Keren Zavis', he means - that it is in the corner of a side-street that leads off the main road, and that, the moment Reuven turned the corner, there was the barrel, which he could avoid bumping into before he had a chance to realize it was there.

(a) When Rav Papa says that our Mishnah (which absolves Reuven from paying in the current case), does not go well with Rav - he means that according to him, the Tana ought to have gone further, and permitted Shimon to break one of the barrels Lechatchilah (seeing as Reuven had no right to block the entire street.

(b) Rav Z'vid in the name of Rava justifies the Tana's statement because of the Seifa. What he means is - that the Tana too, agrees that Shimon has the right to break one of the barrels, only he discussed his having tripped over it (Bedieved), in order to balance the Seifa, which obligates Reuven to pay, in the event that Shimon hurt himself as he tripped (which would not be the case, had Shimon deliberately smashed it.

(c) Rebbi Aba told Rav Ashi (the first, who lived in the times of Rav) that in Eretz Yisrael, Ula (or Rebbi Ila'i) explained our Mishnah far more simply. The Kashya 'that people should look where they are going' simply did not worry him - because he maintained that people do not tend to look at the ground as they walk (nor is there any obligation on their part to do so).

(a) In a case in Neherda'a, Shmuel obligated 'Reuven' to pay for breaking a barrel, and in another case in Pumbedisa, Rabah did likewise. The case in Neherda'a - took place during the day (whereas our Mishnah which absolves him, speaks at night-time, as Shmuel just explained).

(b) According to Rav Papa it does not necessarily follow that Rabah holds like Shmuel (like Rav or like Rebbi Yochanan) - because the case occurred in a corner of the street next to the oil-press, where the owners had permission to place their barrels.

(c) People were permitted to leave their barrels of olives in that section of the street - whilst the olive-press was being used by others, and they were awaiting their turn to use it.

(a) It was customary for the Dayanim to fine someone three Sela'im for kicking his fellow-Jew with his knee - merely for Boshes (for the embarrassment that he caused him) See Tosfos DH 'Harei Amru'.

(b) For kicking him with one's foot they would fine him five Sela'im, and for hitting him with the saddle of a donkey - thirteen.

(a) Rav Chisda asked Rav Nachman - how much to fine someone who hit his fellow-Jew with the handle or the blade of a hoe.

(b) Rav Nachman was surprised at Rav Chisda's She'eilah - because we have already learned that one cannot claim K'nasos in Bavel (and the Minhag ha'Dayanim was confined to the Dayanim of Eretz Yisrael).

(c) Rav Nachman's case was - where one of two partners in a well was taking water on his partner's day, to water his field.

(d) When Rav Nachman heard what the case was - he exclaimed that if that was so, the claimant was entitled to do whatever was necessary to obtain his rights, because 'One is permitted to take the law into one's own hands.

(a) In fact, whether or not, one is permitted to take the law into one's own hands is a Machlokes Rav Yehudah and Rav Nachman. Rav Yehudah will concede however, that one may do so in cases where the very act of opening proceedings against the defendant will cause the claimant a loss.

(b) Rav Chisda's case will fall under this category - seeing as every minute that passes, the defendant was helping himself to more water, which a. could not later be assessed, and b. created the possibility that he would use up all the remaining water, causing the well to run dry.

(c) Despite the fact that it is possible to settle his claim in Beis-Din, Rav Nachman permits the claimant to settle it on his own - to save him the trouble of going to Beis-Din.

(a) Rav Kahana questions Rav Yehudah from ben Bag-Bag, who forbids a claimant to enter the defendant's Chatzer to take what is rightfully his (see Tosfos DH 'Ela') - because people will accuse him of being a thief. He does however, allow him to 'break his teeth' and tell him that he is only taking what is his (to avoid being accused of being a bully).

(b) Rav Yehudah counters this proof - by establishing it as the individual opinion of ben Bag-Bag, whereas the Rabbanan forbid it.

(c) According to Rebbi Yanai, 'Break his teeth' means in Beis-Din (by bringing witnesses and proofs). The problem with this is from the Tana's words ...

1. ... 've'Emor Lo' - when, according to Rebbi Yanai, he should have said 've'Omrim Lo'.
2. ... 'Sheli Ani Notel' - when he should have said 'Shelo Hu Notel'.
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