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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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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 person embarrassment.

(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 damage.

(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 doesn't.

(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 might not.
2. ... the Mu'ad, he will receive full damages, whereas if it was the Tam, he will only be entitled to Chatzi Nezek.
(b) The Tana rules here too - that 'ha'Motzi me'Chavero Alav ha'Re'ayah'.

(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 affirmative.

(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 completely.

(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 from it?

(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').

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