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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 34



(a) In a case where an ox worth two hundred Zuz gored another ox worth two hundred Zuz, causing damage to the value of fifty Zuz, the Beraisa says - assuming that the value of the Nizak rose to four hundred Zuz (and, if not for the injury, it would have risen to eight hundred), the Mazik has to pay according to the Nizak's value at the time of the damage. The Mazik cannot claim exemption from payment, on the grounds that at the end of the day, the ox did not depreciate in spite of its death - seeing as, if not for the damage, it would have risen even more.

(b) We might also explain the Chidush of the Beraisa from the perspective of the Nizak rather than the Mazik - by explaining that the Nizak is not entitled to claim the Chatzi Nezek of two hundred Zuz which he lost from the potential rise in price.

(c) In a case where the value of the Nizak depreciated, the Tana says - that we go after its value at the time of the court hearing, and the Nizak may claim the additional losses.

(d) If the value of the Mazik rose, the Nizak may only claim from it according to its value at the time of the damage. In a case where the value of the Mazik depreciated - the Tana once again goes after the time of the court hearing, only this time, it involves the loss of the *Nizak*.

(a) The two statements that comprise the Seifa (Shavach Mazik ... ) appear to clash - because the author of the Mishnah which holds that when the Mazik goes up, we go after the time of the damage, is Rebi Yishmael (according to whom the Nizak *does not acquire* the actual ox), whereas if, when it goes down, we go after the time of the court hearing - then the author has to be Rebbi Akiva (who holds that *he does*).

(b) In fact, we conclude, the author is Rebbi Akiva, and the reason that the Nizak does not share in the proceeds when the price rose is - because the Tana speaks when the Mazik became fat because the owner fed it (and it would not be fair for the Nizak to 'become rich at the expense of the Mazik').

(c) The problem with this explanation from the Reisha is - that in order to balance with the Seifa, it must speak when the Nizak fattened his ox. In that case - what is the Chidush? Is it not obvious that the Mazik cannot claim exemption at the expense of the Nizak?

(d) This Kashya disproves the second explanation in 'Shavach Nizak' (where it is the *Nizak* who claims half the loss of the potential gain) - because it is not obvious at all, that, because the Nizak fed his animal, he cannot claim half of the potential improvements (in fact, if anything, the opposite is true).

(a) To conform with our interpretation of the Seifa - Rav Papa establishes the Reisha either when the Nizak fed the animal (when there is *no Chidush*) or when he did not, and its rise in price was due to other causes (when there *is*).

(b) We cannot establish the Reisha when the Nizak became weaker due to the owner having worked with it - because it would then be unfair for the Nizak to receive more Nezek on account of the depreciation which he himself caused.

(c) So we attribute the ox's depreciation - to the wound caused by the Mazik's ox (as if the ox's horn was still buried inside the wounded ox).

(a) Rebbi Meir establishes the Pasuk "u'Machru es ha'Shor ha'Chai ve'Chatzu es Kaspo" - by an ox worth two hundred Zuz which gored another ox worth two hundred Zuz, and the carcass is worth nothing.

(b) Rebbi Yehudah disagrees - on the basis of the continuation of the Pasuk "ve'Gam es ha'Meis Yechetzun". He wants to know what Rebbi Meir does with this Pasuk.

(c) Rebbi Yehudah establishes the Pasuk - by an ox worth two hundred Zuz which gored another ox worth two hundred Zuz, and the carcass is worth fifty Zuz, in which case the Mazik and the Nizak each take half the live Mazik and half the dead Nizak.

(a) Rebbi Meir interprets the Pasuk "ve'Gam es ha'Meis Yechetzun" to mean - 'P'chas she'Pachsaso Miysah Machtzin be'Chai' (the devaluation caused by the death of the Nizak comes out of the body of the Mazik).

(b) According to Rebbi Yehudah, each one receives 25 Zuz from the carcasss of the Nizak, plus 100 Zuz from the live Mazik, whereas according to Rebbi Meir, the Nizak takes the carcass (worth 50 Zuz), plus 75 out of the live Mazik.

(a) Seeing as either way, the Nizak receives a hundred and twenty five Zuz, it is not at first clear over what the Tana'im are arguing. Rava initially suggests that they are arguing over the depreciation of the carcass, in which case - Rebbi Meir holds that this is borne by the Nizak, whereas according to Rebbi Yehudah, it is the Mazik who must bear the loss.

(b) We learn from the Pasuk "ve'ha'Meis Yih'yeh Lo" - that, in the case of a Mu'ad, the Nizak alone bears the depreciation of the carcass.

(c) Based on this D'rashah, Abaye refutes Rava's suggestion - because it will now transpire that, according to Rebbi Yehudah, the Din of a Tam is more stringent than a Mu'ad (where the Mazik does not bear the depreciation of the Nizak's ox). A strange phenomenom indeed!

(d) Rebbi Yehudah is more stringent by a Tam than by a Mu'ad as far as the degree of guarding is concerned, as we shall see in 'Shor she'Nagach es ha'Parah'. Nevertheless, Abaye's Kashya on Rava is valid - because even if Rebbi Yehudah is more lenient by Tam regarding the method of guarding, that will not serve as a precedent for the Din payment, where it is obvious that Rebbi Yehudah will be more lenient by a Tam than by a Mu'ad (as we shall now see).




(a) Rebbi Yehudah in a Beraisa rejects the suggestion that if an ox worth a Manah (100 Zuz) gores one worth five Sela'im (20 Zuz), and the carcass is worth only one Sela, the Nizak should take half the Mazik and half the Nizak - on the grounds that if a Mu'ad, which is more Chamur than a Tam, only pays for the damage and no more, then how can a Tam possibly be made to pay in excess of the damage?

(b) We set out to prove from this Beraisa - that even as regards payment, Rebbi Yehudah insists that a Tam must be more lenient than Mu'ad, as we just explained.

(c) Rebbi Yochanan finally establishes the basis of the Machlokes between Rebbi Meir and Rebbi Yehudah in our Mishnah (bearing in mind that both agree that in the case described in our Mishnah, the Nizak receives a hundred and twenty five Zuzim damages) - by 'Sh'vach Neveilah'.

(d) Rebbi Meir holds 'Sh'vach Neveilah de'Nizak' (because, according to him, the Mazik is not a partner in the Nizak ox at all), whereas according to Rebbi Yehudah, they divide it.

(a) Based on Rebbi Yehudah's opinion that the Mazik shares in the improvement of the Nizak, Rebbi Yehudah himself suggests that in a case where an ox worth 5 Sela'im gores an ox worth a Manah, and the carcass is worth 50 Zuz - he should also receive half the Nizak.

(b) And he refutes this suggestion on the grounds - that nowhere do we find the Mazik making money out of his liabilities.

(c) From the Pasuk "Shalem Yeshalem", he learns - that the Mazik pays but does not receive. The double Lashon simply extends this D'rashah to a Tam.

(d) Despite the strong S'vara that he just presented, Rebbi Yehudah requires this additional D'rashah - to cover a case where not only the Mazik gains, but the Nizak does not lose either (i.e. where the carcass is worth more than half the loss, as well as more than the Mazik).

(a) If, as we learned earlier, Rebbi Yehudah does not hold of 'P'chas she'Pachso Miysah Machtzin be'Chai', Rav Acha bar Tachlifa asked Rava, it will be possible for a Mazik to pay more than half the damage (in spite of the Pasuk " ... ve'Chatzu es Kaspo" - such as when an ox worth fifty Zuz gores an ox worth forty Zuz and the carcass is worth twenty Zuz (seeing as half the loss is only ten Zuz, whereas half the Mazik is worth twenty-five.

(b) Rava replied that Rebbi Yehudah actually concurs with 'P'chas she'Pachso Miysah ... '.

(c) Even though he already learns from the Pasuk "ve'Gam es ha'Meis Yechetzun" that the Mazik shares in Sh'vach Neveilah - that is from the extra word "ve'Gam". But from the actual Pasuk he concurs with Rebbi Meir, who learns from there 'P'chas she'Pachso Miysah Machtzin be'Chai'.

(a) The Tana of our Mishnah lists cases where one is liable to pay for the damage performed by one's ox but not for the damage performed by oneself, and vice-versa. Should one's ox injure someone - the Mazik is Patur from Boshes, which we learn from the Pasuk "Ish ba'Amiso", 've'Lo Shor ba'Amiso'.

(b) Should ...

1. ... his ox knock out the eye or the tooth of an Eved, he will not be obligated to pay (even though he would have been, had *he* performed the damage.
2. ... he injure his father or mother - he will not be obligated to pay (even though he would have been, had *his ox* performed the damage), because of the principle 'Kam Lei be'de'Rabah Mineih' (meaning that someone who receives a more stringent punishment (such as the death-penalty), is absolved from the less stringent one (such as paying).
(c) If he or his ox burns a haystack on Shabbos - he is *not liable* to pay (because he is Chayav Miysah), whereas his ox *is*.
(a) The Beraisa cited by the Beraisa expert in front of Rebbi Yochanan states - that anyone who spoils something on Shabbos is Patur, with the exception of someone who wounds and someone who burns something.

(b) The Tana learns the P'tur by ...

1. ... Chovel - from the fact that the Torah finds it necessary to specifically permit Milah on Shabbos.
2. ... Mav'ir - from the fact that the Torah forbids the burning on Shabbos of a bas Kohen who committed adultery.
(c) Rebbi Yochanan reacted by instructing him to get rid of his Beraisa. He was however, willing to relent and accept it - provided one established it when he needed the blood for his dog and the ashes for some reason or other.

(d) Rebbi Yochanan justifies the Mishnah, which obligates someone who causes a bruise (despite the fact that no blood came out) - when he needed to redden the animal's neck to attract would-be buyers, in which case, he will be Chayav for dyeing.

(a) Our Mishnah strikes a contrast between a person who sets fire to haystack on Shabbos, and his ox which does the same thing. We try to establish the case (with regard to the owner) - where, like his ox, he has no need for the fire, proving Rebbi Yochanan wrong.

(b) So to conform with Rebbi Yochanan, we reconcile the two cases conversely - by rather comparing the ox to the person, in which case, the former, like the latter, *did* require the fire.

(c) When we say that the ox needed the fire, we mean - that it had a sore back, and needed to roll in ashes in order to be cured.

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