ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Kama 35
(a) We just established our Mishnah when the ox wanted the fire just like
the man did. We will know that this is the case - when after the fire has
turned the fuel into ashes, it rolls in the ashes.
(b) We know that such a thing is possible from the donkey with toothache
that belonged to Rav Papa - which knocked off the lid of a barrel of vinegar
and drank some beer, in order to alleviate its toothache.
(c) The problem we have with establishing the ox similar to the man from the
Din in the Mishnah 'Shoro she'Biyesh Patur, ve'Hu she'Biyesh Chayav' is -
how it is possible for an ox to have the exrpress intention of causing a
(a) Initially, we answer this Kashya by reinterpreting 'Niskaven
le'Vayesh', according to the Sugya in 'Keitzad ha'Regel' - which explains
that it is not Kavanah to embarrass that is required, but Kavanah to cause
(b) Rava answers the Kashya by citing Tana de'Bei Chizkiyah, who learns from
the Pasuk in Emor, which compares "Makeh Adam" to "Makeh Beheimah" - that
just as the Torah does differentiate between Meizid, Shogeg and Eino
Miskaven, when it comes to Adam ha'Mazik having to pay for killing an
animal, so too, when it comes to killing a person, the Torah does not
differentiate between Meizid (where he is Patur from paying because of 'Kam
Leih be'de'Rabah Mineih'), Shogeg and O'nes, to exempt him from paying.
(c) The Hekesh teaches us that even Shogeg and Eino Miskaven is Patur from
paying (even though they are not actually Chayav Miysah), and, when the Tana
talks about 'Bein Derech Yeridah le'Derech Aliyah', it is referring to the
Din of Galus, which a murderer is Chayav for having killed with a downward
stroke, and he is teaching us here that he would also be Patur from paying
if he killed him with an upward stroke, even though he is not Chayav Galus.
(d) Rava interprets the Lashon of our Mishnah 'Mipnei she'Hu Nadun (or
Mischayev) be'Nafsho' to mean - that since where he is Chayav Miysah (i.e.
where he does need the ashes), he is Patur from paying even though he
(a) In a case where an ox that was being chased by another ox ended up being
injured, and the owner of the injured ox blames the ox that was chasing it,
but the owner of the latter counters that it hurt itself on a rock, the Tana
of our Mishnah rules - that the latter is Patur, due to the principle
'ha'Motzi me'Chavero Alav ha'Re'ayah'.
(b) In the equivalent case, but where the injured ox had been chased not by
one, but by two oxen (where we know for sure that the ox was by killed by
one of them) - he rules in the same way as he did in the previous case,
Sheneihem Peturim (and for the same reason).
(c) The latter would however, be liable to pay - if he happened to be the
owner of both oxen, (seeing as 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' will
not apply in this case).
(a) The Mishnah discusses a case where one of the two oxen that had been
chasing the ox that was killed was a big ox or a Mu'ad and the other one, a
small ox or a Tam, and the Nizak now claims that it was the big ox or the
Mu'ad that caused the damage, whereas the Mazik argues that it was the small
ox or the Tam. The difference will be - that if the damage was caused by ...
1. ... the big one (assuming they are both Tamin) then he will more likely
be able to claim his full Chatzi Nezek, whereas if it was the small one, he
(b) The Tana rules here too - that 'ha'Motzi me'Chavero Alav ha'Re'ayah'.
2. ... the Mu'ad, he will receive full damages, whereas if it was the Tam,
he will only be entitled to Chatzi Nezek.
(c) The final set of cases in the Mishnah is - where two small oxen were
being chased by two big ones, or by a Mu'ad and a Tam. The Nizak
subsequently claims that the big ox or the Mu'ad gored his big one and the
small ox or the Tam, his small one; whereas the Mazik claims that it
happened the other way round.
(d) Here too, the Tana rules 'ha'Motzi me'Chaveiro, Alav ha'Re'ayah'.
(a) Rebbi Chiya bar Aba points out that the author of our Mishnah cannot be
Sumchus - who would say 'Cholkin' in all the cases in our Mishnah.
(b) Rebbi Aba bar Mamal asked Rebbi Chiya bar Aba whether Sumchus issued his
ruling even in a case of Bari u'Bari (where both the claimant and the
defendant state their case with certainty) - to which he replied in the
(c) Rebbi Chiya bar Aba knows that our Mishnah is speaking even when the
Mazik is Bari - because he is quoted as saying 'Lo Ki ... '.
(d) This does not mean that, according to Sumchus, every claimant receives
half his claim; only in cases such as these, where, at the outset, Beis-Din
have a Safek to contend with (weakening the Chazakah with which Sumchus
otherwise would agree).
(a) Assuming that the entire Mishnah speaks by Bari u'Bari, Rav Papa asks
from the Seifa on Rabah bar Nasan, who says that if Reuven admits that he
owes Shimon barley when Shimon has claimed wheat, he is Patur - because, by
virtue of the fact that he did not claim it, it is clear that Shimon is
Mochel (has foregone) the wheat.
(b) Rav Papa asks from the Seifa of our Mishnah ('Hayah Echad Gadol ve'Echad
Katan ... ', which is really the Metzi'a) on Rabah bar Nasan - that if, as
Rebbi Chiya bar Aba claims, the Reisha is speaking by Bari u'Bari, then so
is the Seifa (otherwise, we might have said that the Seifa says 'Lo Ki'
because of the Reisha), in which case the Mazik ought to be Patur
completely, seeing as the Mazik is admitting that the small one or the Tam
caused the damage, whereas the Nizak is claiming that the big one or the
Mu'ad did it; and according to Rabah bar Nasan, the Nizak ought to be Patur
(c) So we are forced to learn the Seifa by Bari ve'Shema - the Nizak is the
Shema and the Mazik, the Bari ...
(d) ... because if the Nizak was the Bari and the Mazik, the Shema - seeing
as the Nizak is Mochel the Tam, why on earth should he then be able to claim
(a) Even though the Seifa speaks when the Nizak is Shema, and the Mazik,
Bari, the Reisha cannot speak likewise - because it is obvious that Sumchus
would not say 'Cholkin' in such a case (seeing as the claimant himself is
not certain of his claim), and it would therefore be unnecessary for our
Tana to preclude his opinion (which, according to Rebbi Chiya bar Aba, is
his major objective).
(b) So we establish the Reisha - when the Nizak is Bari and the Mazik, Shema
(or when they are both Bari - see Tosfos DH 'Reisha').
(c) In spite of the fact that the Reisha and Seifa are anyway not similar,
Rebbi Chiya bar Aba cannot establish the Reisha by Bari u'Bari (only), like
he did initially - because then they would not balance at all, whereas if
they speak in reverse cases, they do balance.
(a) When the Mishnah in Shevu'os rules 'Ta'ano Chitin ve'Hodeh Lo bi'Se'orim
Patur' - what the Tana might mean is Patur from paying for the wheat, but
Chayav for the barley. Consequently, Rabah bar Nasan needs to teach us that
he is Patur from the barley as well.
(b) In the first case in the Seifa 'Hayu ha'Nizakin Shenayim, Echad Gadol
ve'Echad Katan ... ', our Mishnah rules 'ha'Motzi me'Chaveiro, Alav
ha'Re'ayah'. Initially, we infer from there - that if he were to bring a
proof, he would receive the smaller claim (even though that is not what he
claimed [a Kashya against Rabah bar Nasan]).
(c) We reconcile this with Rabah bar Nasan - by amending the inference to
'Ra'uy Litol ve'Ein Lo' (should he indeed bring a proof).
(d) And we reconcile this answer with the Beraisa, which specifically states
'Harei Zeh Mishtalem al ha'Katan min ha'Gadol u'le'Gadol min ha'Katan' - by
establishing this Beraisa when the Nizak actually seized the Mazik (see
Tosfos DH 'Ra'uy Litol').
(a) We ask the same two Kashyos on Rabah bar Nasan from the second case
'Hayah Echad Tam ve'Echad Mu'ad ... ', and we answer them - in exactly the
same as we answered them in the first case.
(b) We decline to answer these Kashyos by establishing the case by Bari
ve'Shema, like we did in the Reisha and the Metzi'a of the Mishnah - because
the Seifa needs to teach us a Chidush in its own rights.
(c) The reason that Rabah bar Nasan did not establish the Reisha and the
Metzi'a by Bari u'Bari, and when the Tana says 'ha'Motzi me'Chaveiro ... ',
there too, he means to say that in the event that he does bring a proof, he
ought to get, but doesn't (because of Rabah bar Nasan's Din) is - because
Rabah bar Nasan disagrees with Rebbi Chiya bar Aba. According to him,
Sumchus did not say Cholkin wherever the defendant claims Bari. Note, that
in that case, Rabah bar Nasan does not agree with the implication from 'Lo
Ki' either. (See also Tosfos, DH Ra'uy Litol').