ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf 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
(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?
(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'.
2. ... is mostly found at home - because then, why would the Tana Kama argue
(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
(b) Bearing the above in mind, if ...
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.
1. ... two people injure each other - the one who caused more damage must
pay the full 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).
2. ... a person and a Mu'ad injure each other - then the one that caused
more damage pays the difference between the two assessments.
(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.
(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.
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).
(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
(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
(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.
(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.
2. ... after the court hearing - it is not.
(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?
(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).
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.