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Bava Kama 36



(a) 'Hayu Sheneihem shel Ish Echad, Sheneihem Chayavim'. We infer from the word 'Sheneihem' - that the Nizak can claim from either of the oxen, from which we extrapolate that if two Tamin damage, one may claim from either of them, even if one of them is not available.

(b) To refute this proof - we establish the Reisha by two Mu'adin.

(c) It is not feasible to establish the Seifa by Mu'adin - because what difference would it then make whether it was the big ox which gored or the small one, seeing as the Mazik pays from his own pocket.

(d) The two objections raised by Rav Acha Saba against establishing the Reisha by Mu'adin, are from the Tana's wording - 'Chayavin' (when he should have simply said 'Chayav [Gavra]'), and 'Sheneihem' (implying that the Nizak has a claim on both oxen.

(a) So we revert to our original understanding of the Mishnah, and establish it by Tamin. We now interpret 'Sheneihem' to mean - that as long as both Mazikin are available, the Nizak has the right to claim from either of them 'mi'Mah Nafshach', according to Rebbi Akiva, who considers the Nizak a partner in the Mazik.

(b) If one of them got lost - then he may no longer claim because his claim is only that of a Safek.

***** Hadran Alach ha'Meni'ach *****

***** Perek Shor she'Nagach Arba'ah va'Chamishah *****


(a) According to Rebbi Meir in our Mishnah, in a case where an ox gored four or five oxen, it is the last Nizak who has the first right to claim. The ox has remained a Tam after having gored four or five times - by virtue of the fact it did not gore all the Nezikin consecutively. It gored one ox for example, ignored the next one that it saw, gored the next one and then ignored two, before goring the third one.

(b) Should some of the Mazik remain after the last Nizak has taken his share - it is the one before him who has the next right to claim, and after him, comes the one before *him*.

(a) Rebbi Shimon disagrees. In a case where an ox worth two hundred Zuz gored an ox worth two hundred Zuz and the carcass is worth nothing, he rules that each one takes half the Mazik. The Din, if the ox then gores ...
1. ... a third person will be - that *he* takes a Manah and the two pervious ones, fifty Zuz, each.
2. ... a fourth person - that *he* takes a Manah, the one before, fifty Zuz each and the first two, a Dinar Zahav each.
(b) A Dinar Zahav is twenty-five Zuz.

(c) The author of our Mishnah ...

1. ... ('Acharon Acharon Niskar') does not appear to be Rebbi Yishmael - who holds that the Nizak is considered a creditor, not a partner. In that case, he would rule 'Rishon Rishon Niskar' (since earlier creditors take precedence over later ones).
2. ... ('Yesh Bo Mosar Yachzir le'she'Lefanav') not appear to be Rebbi Akiva - who holds that he is considered a partner, in which case, he would rule that whatever is left, should be shared among all the others.



(a) To establish the author of our Mishnah as Rebbi Yishmael - we establish it when each Nizak seized the Mazik in turn, in order to claim damages from it, turning him into a Shomer Sachar, and liable for subsequent damages.

(b) The problem this creates with 'Im Yesh Bo Mosar, Yachzir le'she'Lefanav' is - that, according to Rebbi Yishmael, whatever remains, ought to go to the owner, and not to the previous Nizak.

(c) Ravina therefore amends 'Im Yesh Bo Mosar bi'Nezakav, Yachzir le'she'Lefanav' (meaning that if the damage done to the previous Nizak's ox exceeded that done to the last one) 'Yachzir le'she'Lefanav'.

(d) When Ravin came from Eretz Yisrael, he too explained the Mishnah in this way. He quoted Rebbi Yochanan.

(a) We reconcile our interpretation of Rebbi Meir in the Reisha, with Rebbi Shimon, who seems to hold that the Nizakin are partners - by establishing Rebbi Meir like Rebbi Yishmael and Rebbi Shimon, like Rebbi Akiva.

(b) Shmuel told Rav Yehudah - to leave the Mishnah and follow him, because he held that the Reisha followed the opinion of Rebbi Yishmael and the Seifa, that of Rebbi Akiva.

(c) In spite of having established our Mishnah when each Nizak claimed the ox in turn, we cannot establish the author as Rebbi Akiva - because then, the Mishnah would not be teaching us any Chidush, seeing as, even if the subsequent Nizakin would not have seized the Mazik ox, the Din would have been that the last one would gain (in the way that Rebbi Meir describes).

(d) According to Rebbi Yishmael, the Chidush is that by seizing it, the Nizak acquires it and becomes a Shomer Sachar (even before it has been assessed in Beis-Din).

(a) We learned in the Mishnah in 'ha'Chovel', 'ha'Toke'a la'Chavero - which might mean that he struck a blow beside his ear, or it might mean that he blew a Shofar blast in his ear. Either way, he must pay him a Sela.

(b) This pertains specifically to the area of Boshes (and is independent of the other four areas of Nezek.

(c) According to Rebbi Yehudah quoting Rebbi Yossi Hagelili, he is obligated to pay - a Manah (a hundred Zuz).

(a) When someone did this to his friend, Rav Tuvya bar Masna sent him to Rav Yosef - to find out whether a Sela means 'Tzuri' or 'Medinah' (one eighth of a Sela Tzuri).

(b) Even though K'nasos are not claimable Lechatchilah in Bavel, we are speaking here when the Nizak siezed the payment.

(c) A Sela ...

1. ... Tzuri - is the equivalent of four Zuz (or Dinrim).
2. ... a Sela Medinah - is the equivalent of half a Zuz.
(a) Rav Yosef tried to prove from our Mishnah, which stops at the Dinar Zahav of the third Nizak - that the Tana must consider a Sela as a Sela Tzuri, because if it was a Sela Medinah, then why did the Tana not add the case where the ox gored one more time, where the last Nizak will receive one Manah, the one before, fifty Zuz, the one before, a Dinar Zahav and the first two twelve Dinar and a Sela (which it could not do if a Sela was a Sela Tzuri, because then the last two would receive twelve and a half Dinar each, and it is not the way of the Tana to deal with halves).

(b) Rav Tuvya bar Masna counters this proof by pointing out - that either way, the Tana is under no obligation to list all possible cases.

(c) Eventually, Rav Yosef resolves the She'eilah from Rav Yehudah Amar Rav, who said ...

1. ... 'Kol Kesef ha'Amur ba'Torah' is - Kesef Tzuri.
2. ... 've'Shel Divreihem' is - Kesef Medinah.
(d) Our case falls under the latter category, since the amount in question was fixed by the Rabbanan, and not by the Torah.
(a) The reason ...
1. ... the Nizak decided that the half-Zuz should be given to Tzedakah was - because of the insignificant amount involved.
2. ... he changed his mind was - because he decided that he could enjoy a good meal for that amount.
3. ... Rav Yosef refused to comply with his second request was - because as a Gabai Tzedakah, he had already acquired it on behalf of the poor people who relied on him.
(b) He proved his point from a statement of Rav Yehudah Amar Shmuel, who said - that in the Sh'mitah year, outstanding debts owed to Yesomim do not require a P'ruzbul (a document handing over the creditor's debts to Beis-Din, so that when one ultimately claims the debt, he does so in the name of Beis-Din, thereby avoiding transgressing the La'av of "Lo Yigos" [claiming one's debts after the Sh'mitah]).

(c) The reason for this is - because Beis-Din automatically take over the debts of all Yesomim, and no Sh'tar is required.

(d) Rami bar Chama's Beraisa, which supports Rav Yehudah Amar Shmuel, cites Raban Gamliel and his Beis-Din - as an example, because he was a Nasi and a very important man.

(a) Chanan the scoundrel ended up in front of Rav Yehudah - either for striking a blow beside someone's ear (or for blowing a Shofar in his ear).

(b) The problem that he encountered when Rav Huna ordered him to pay half a Zuz was - that he only possessed a whole Zuz (see Hagahos ha'Bach).

(c) He got round the problem - by repeating the performance and paying him the Zuz.

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