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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 33



(a) Rav Z'vid in the name of Rava cites Rebbi Yossi b'Rebbi Chanina's statement with regard to a different Beraisa. Rebbi Eliezer ben Ya'akov Darshens there from the Pasuk "*u'Matza* es Re'ehu ba'Ya'ar" - "u'Matza", 'P'rat le'Mamtzi'. Consequently, if Reuven throws a stone which kills Shimon, who only entered its flight-path after it left Reuven's hand, he is Patur.

(b) Rebbi Yossi b'Rebbi Chanina comments on this - 'Patur mi'Galus, ve'Chayav be'Arba'ah Devarim'.

(c) Those who linked Rebbi Yossi b'Rebbi Chanina with our Mishnah will say in this case - that he is Patur from the four things too.

(a) According to the Tana Kama of the Beraisa, if workers come to claim their wages from their employer, and they are gored to death by his ox or mauled by his dog, he is Patur. Acherim says - that they are entitled to claim their wages, and the employer is liable.

(b) The Beraisa cannot be speaking in a case when the employer ...

1. ... is often available in town - because then, why would Acherim argue with the Tana Kama?
2. ... is mostly found at home - because then, why would the Tana Kama argue with Acherim?
(c) So we establish the Beraisa - when he is sometimes in town, but not too often (see Tosfos DH 'be'Gavra'). So the employees went to his house for their wages, and he called out 'Yes'.

(d) The basis of the Machlokes is - whether 'Yes' means 'Come in' (Acherim), or whether it means ('Yes, I'm coming' [Acherim]).

(a) Another Beraisa says - that if an employee who comes to claim his wages is gored or mauled by his employer's ox or dog - the employer is Patur even though he entered with permission.

(b) We extrapolate from there - that 'Yes' must mean 'wait there!' (because that is the only logical way of interpreting 'with permission').

(a) The Tana of our Mishnah rules: in a case where two oxen gored each other, one assesses the two sets of damage and, assuming one of them is a ...
1. ... Tam and so is the other - whoever caused more damage must pay half the difference.
2. ... Mu'ad and so is the other - then whoever caused more damage must pay the full difference.
3. ... Tam and the other one, a Mu'ad - depending upon whose damage is greater, the one who caused more damage must pay either the full difference between the two assessments, or half of it.
(b) Bearing the above in mind, if ...
1. ... two people injure each other - the one who caused more damage must pay the full difference between the two assessments.
2. ... a person and a Mu'ad injure each other - then the one that caused more damage pays the difference between the two assessments.
(c) According to the Tana Kama, if a person and a Tam injure each other, the Din is the same as that of a Mu'ad and a Tam. According to Rebbi Akiva - a Tam that injures a person, pays full damages (like a Mu'ad).
(a) The Rabbanan learn from the Pasuk "ka'Mishpat ha'Zeh Ye'aseh Lo" that if a Shor Tam gores a person, the owner pays only Chatzi Nezek (as if it had gored an ox).

(b) And Rebbi Akiva learns from ...

1. ... "ha'Zeh" - that a Shor Tam that gores a person, has the same Din as a Shor Mu'ad.
2. ... the Pasuk (there) "Yeshalem Lo" - "Lo", 'mi'Gufo', to teach us that even though it has the Din of a Mu'ad regarding the amount that the owner pays, it nevertheless retains the Din of a Tam in other regards and pays mi'Gufo (and not min ha'Aliyah).
(c) The Rabbanan learn from "ha'Zeh" and Rebbi Akiva from the Pasuk "*ve'Ish* Ki Yiten Mum *ba'Amiso*" - that an ox that gored a person is exempt from paying the four things.

(d) The Rabbanan require "ha'Zeh" to exclude Ripuy and Sheves, and not only Tzar. Even though we have already precluded Tza'ar from the damages of one's ox, we need a special Pasuk to preclude Ripuy and Sheves - because they constitute a monetary loss (which Tza'ar does not).

(a) The case of Shor Tam mentioned in the Torah, according to the Tana of our Mishnah is - when an ox worth one Manah gored an ox worth two, and the carcass is worthless, the Nizak simply takes the Mazik.

(b) When Rebbi Yishmael says in a Beraisa 'Yusham ha'Shor be'Veis-Din', he means - that the Mazik is assessed in Beis-Din and the owner is permitted to pay money, rather than the body of the Mazik, because the Nizak is a creditor, rather than a partner in the Mazik.

(c) Rebbi Akiva says - 'Yuchlat ha'Shor' (meaning that the Nizak can only take the Mazik itself), because the Torah made him a partner in it.

(d) The basis of their Machlokes lies in the Pasuk "u'Machru es ha'Shor ha'Chai ve'Chatzu es Kaspo" - whether the Pasuk is speaking to the Beis-Din (Rebbi Yishmael, as we just explained), or to the Mazik and the Nizak (in which case the sale is a convenience with no legal implications).

(a) Apart from the basic difference whether the Mazik can force the Nizak to take money instead of the live ox (see Tosfos DH 'Hikdisho'), the ramifications of the Machlokes are - whether, if the Nizak declared it Hekdesh, the Hekdesh is valid (Rebbi Akiva) or not (Rebbi Yishmael).

(b) The author of our Mishnah (which rules that the Nizak takes the ox) must be Rebbi Akiva - because according to Rebbi Yishmael, the Mazik is entitled to pay money if he so wishes.

(c) Rava asked Rav Nachman whether, if the Mazik sold the ox, the sale would be valid. Despite the fact that the Nizak only has the Din of a creditor, the sale might nevertheless not be valid - because the Torah was Meshabed the ox to the Nizak.

(d) Rav Nachman replied - that the sale was indeed invalid.




(a) In light of Rav Nachman's ruling ('Eino Machur') we explain the Beraisa which says 'Machro Machur' to mean that although it is sold, the Nizak may claim it back, and the significance of the Beraisa's ruling is - that the purchaser is not obligated to pay if he plows with it in the interim (which he would otherwise have been obligated to do).

(b) Rava rules that if a debtor sells his Eved who is an Apotiki (a designated surety against the debt) the creditor may claim it from the buyer - whereas he forbids him to claim his ox under the same crcumstances.

(c) We nevertheless permit the Nizak to claim the Mazik sold by its owner - because an animal which gored, like an Eved, has a Kol (people know about it), thereby enabling the purchaser to safeguard himself and refrain from buying it.

(a) Rav Tachlifa from Eretz Yisrael quoted a Beraisa before Rebbi Avahu 'Mecharo Eino Machur, Hikdishu Mukdash' - which might refer to the Mazik selling it or declaring it Hekdesh, and it might refer to the Nizak.

(b) The problem with the Beraisa is - that if it refers to the Mazik, and it is according to Rebbi Akiva that it is not sold in the Reisha, then the Seifa will go like Rebbi Yishmael, and if it refers to the Nizak, and the author of the Reisha is Rebbi Yishma'el, then the Seifa will hold like Rebbi Akiva.

(c) We finally establish the Beraisa by the Mazik and the author can be - either Rebbi Yishmael or Rebbi Akiva.

(d) Even ...

1. ... Rebbi Yishmael will agree that his sale is invalid - because, as we explained above, the Torah is Meshabad the ox to the Nizak.
2. ... Rebbi Akiva will agree that his Hekdesh is valid - not legally, but mi'de'Rabbanan (to pay a little to Hekdesh as a formality, so that people will not think that Hekdesh goes out to Chulin without being redeemed).
(a) The Tana of another Beraisa rules that if the Mazik sold, Shechted or gave as a gift, a Shor Tam which damaged ...
1. ... before the court hearing - his transaction is valid.
2. ... after the court hearing - it is not.
(b) The Tana says in a case where the Mazik's creditors came and took the ox - that the Nizak may take it away from them, irrespective of whether the debt came first or the damage.

(c) With regard to a Mu'ad - all of the above transactions will be valid, and in the event that the Mazik's creditors came and took the ox, the Nizak may not claim it from them.

(d) The ramifications of the ruling in the Reisha ...

1. ... 'Mecharo, Machur' are - le'Radya (if the purchaser plowed with it, he is not obligated to pay the Nizak) as we explained above.
2. ... 'Hikdisho Mukdash' - that the Nizak must pay Hekdesh a Perutah in order to redeem it (as we explained above).
3. ... 'Nesano be'Matanah' are - le'Radya.
(a) When the Tana includes 'Shechato' in this list, he is coming to teach us (not that the Nizak can no longer claim it, but as Rav Shizbi explains) - that he does not need to pay for the damage caused by the Shechitah.

(b) Although it seems obvious that we can learn from this Halachah the principle 'ha'Mazik Shibudo shel Chaveiro, Patur', Rav Huna B'rei de'Rav Yehoshua found it necessary to say as much - because we might otherwise have confined it to a case of Shechitah, where no real, visible damage has occurred (other than the removal of the 'wind' that constitutes life, as opposed to Reuven who digs holes and ditches in a field that was Meshubad to Shimon, where the damage is real and visible.

(c) Neither is it obvious from Rabah, who exempts Reuven from having to pay for burning Shimon's documents - because documents are not intrinsic value, in the way that fields and oxen are.

(d) We ask a Kashya on Rav Huna B'rei de'Rav Yehoshua from Rabah, even though he was an Amora, too - on the grounds that Rabah was a particularly esteemed Amora, and from Amora'im of that caliber (such as Rav and Rabah), one can ask on regular Amora'im.

(a) The problem with the Tana who permits the Nizak to take the ox from the creditors who claimed it first, in the case of ...
1. ... 'Chav ad she'Lo Hizik' is - by what right does the Nizak take precedence over a creditor who has first rights?
2. ... 'Hizik ad she'Lo Chav' is - that this clearly indicates that if a later creditor claims first, we force him to cede to a creditor who preceded him, a Kashya on the Amora'im, who argue over this point elsewhere.
(b) We answer both Kashyos - by pointing out that had the creditor had the ox in his domain at the time when it damaged, he would anyway have had to give it to the Nizak, so what is he complaining about (see Tosfos).
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