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Bava Kama 38

BAVA KAMA 38 - Dedicated by Eli and Jeri Turkel of Ra'anana, Israel, in honor of the wedding of their neice, Jodi Weinblatt.



(a) The problem we have with the distinction drawn by the Tana of our Mishnah between the ox of a Yisrael goring the ox of a Nochri and vice-versa is - that 'Mah Nafshach', if he Darshens "Re'eihu" to preclude the ox of a Nochri, then both ought to be Patur; whereas if he doesn't, then both ought to be Chayav.


1. Rebbi Avahu learns from the Pasuk "Amad va'Yemoded Eretz, Ra'ah Viter Goyim ... " - that when Hashem saw how the Nochrim failed to adhere to their seven Mitzvos, He declared their money Hefker (to the extent described in our Mishnah).
2. Rebbi Yochanan learns the same thing from the Pasuk "Hofi'a me'Har Paran", but for the reason that the Nochrim declined to accept the Torah at Har Sinai (as hinted in the words "me'Har Paran" [which refers to Yishmael, one of the representative nations to whom Hashem offered the Torah] - see also Tosfos DH 'mi'Paran').
(c) In that case - the Tana does Darshen "Re'eihu" (in which case there should be no difference between the two cases, which, in turn, should be the same as the ox of a Yisrael that gored a Yisrael, only Hashem later fined them at both ends - see Tosfos Rabeinu Peretz).
(a) In the Beraisa that we cite to support this explanation - the Tana actually quotes both Pesukim.

(b) However, he quotes the Pasuk of "Hofia ... ", because of the opinions (expressed later by Rav Masna and Rav Yosef) that interpret "Ra'ah Viter Goyim" differently. Rav Masna based his explanation on the Pasuk in Shemini (in connection with grasshoppers) "Le'nater Bahen al ha'Aretz" - which means '*to jump* with them on the earth'.

(c) He therefore interprets "Ra'ah Viter Goyim" to mean - that when Hashem saw that the Nochrim failed to adhere to their Mitzvos, He sent them (jumping) into exile.

(a) Rav Yosef explains the Pasuk to mean that, when Hashem saw how the Nochrim failed to observe their seven Mitzvos, He canceled them. The problem with this explanation is - that this would be begging the question. People who sin deserve to be punished, not let off the hook and relieved of all their obligations.

(b) Mar Brei de'Rabana therefore tries to explain that what Hashem negated was the reward that they were initially due to receive for performing the Mitzvos, but not the punishment. We refute this too, however, on the basis of a statement by Rebbi Meir, who Darshened from the Pasuk " ... Asher Ya'aseh Osam ha'Adam (and not 'Kohen, Levi ve'Yisrael') va'Chai Bahem" - that even a Nochri who studies his Mitzvos and observes them, is considered like a Kohen Gadol.

(c) We finally base Rav Yosef's interpretation of "Ra'ah Viter Goyim" on a statement by Rebbi Chanina, who said - 'Someone who performs Mitzvos when he is duty-bound to do so is on a far higher level than someone who performs something in a voluntary capacity.

(d) "Ra'ah Viter Goyim" therefore means - that Hashem reduced the reward that was originally due to the Nochrim who had been commanded to perform their seven Noachide laws, to reward them from then on as if they had not been commanded.

(a) The Romans sent two officers to Eretz Yisrael - to study the Torah (presumably as a basis for their own judiciary system).

(b) They learned the entire Torah - three times (see also Agados Maharsha).

(c) The only 'fault' that they were able to find with it - was the Din in our Mishnah, differentiating between an ox of a Yisrael that gored a Nochri, and an ox of a Nochri that gored a Yisrael.

(d) Yisrael did not need to fear retaliatory pogroms when the officers would inform the authorities - because the officers promised not to report the 'fault'.

(a) When Rav Shmuel bar Yehudah's daughter died, why did Ula decline to accompany the Rabbanan from Bavel on a visit to be Menachem Avel - because the Bavli'im tended to say 'What can one do?', implying that if they could do something about it, they would. And he considered that blasphemy.

(b) So he went alone. The problem he discussed regarding Hashem's command to Moshe "Al Tatzar es Mo'av ve'Al Tisgar Bam Milchamah" was - why Hashem found it necessary to issue such instructions to Moshe? Why would Moshe have even dreamt of going to fight Mo'av without Hashem having instructing him to do so?

(c) The 'Kal va'Chomer' that Moshe had Darshened was from Hashem's command to attack Midyan. Now if Midyan, who only joined Mo'av later in the plan to cause Yisrael to sin, needed to be destroyed, how much more so Mo'av, who initiated the plan by hiring Bil'am.

(d) Hashem nevertheless forbade Moshe to take revenge from the Mo'avim (as well as from the Amonim for other sins), (not because of any flaw in Moshe's 'Kal va'Chomer', but) - because of two precious 'doves' that were destined to come out from them, Na'amah ha'Amonis (the wife of Shlomoh ha'Melech and mother of his son Rechav'am) and Rus ha'Mo'avi'ah.

(a) Ula extrapolated from this - that if Hashem saved two great nations on the merit of future generations, then he would have done the same had he found Rav Shmuel bar Yehudah's daughter worthy of the same treatment, and seeing as Hashem did not prolong her life, it was a sign that her time had truly come.

(b) It was a source of comfort for Rav Shmuel bar Yehudah to know that his daughter had been taken away justly.




(a) Rebbi Chiya bar Aba quoting Rebbi Yochanan ascribes the Torah's change of Lashon, "Al Tatzar ... ve'al Tisgar Bam Milchamah" by Mo'av, and "Al Tetzurem ve'Al Tisgar Bam" by Amon to - the modesty of the younger daughter of Lot (the mother of Amon), who did not publicize the identity of her baby's father, in relation to that of the older daughter, who called her baby 'Mo'av', a thinly-veiled corruption of 'me'Av' - from my father.

(b) "ve'Al Tisgar Bam" refers to 'Angarya', which means - coercing them to bring them water and food.

(c) And, quoting Rebbi Yehoshua ben Korchah, he accredited the elder daughter of Lot's reward for performing (what they believed to be) the Mitzvah of preserving mankind - to the fact that she hurried to perform the Mitzvah one night before her sister.

(a) The Tana Kama of a Beraisa, discussing the Din of damages regarding Kutim, considers them as full-fledged Jews. Rebbi Meir - obligates them to pay Nezek Shalem even for a Tam (like regular Nochrim).

(b) Rebbi Meir considers Kutim 'Geyrei Arayos' - on the grounds that they, as the title suggests, only converted out of fear of the plague of lions that had beset them when Sancheriv moved them from Kuta into Eretz Yisrael (and they continued to serve their idols).

(c) We learn from the Pasuk "Daber el B'nei Yisrael ... Ishah Ki Sazri'a ... ve'Tam'ah ... " - that Nochrim are not subject to Tum'as Nidah and Tum'as Yoledes.

(d) Despite the fact that Chazal decreed Ziyvus on Nochri women (as well as men), they did not decree on their bloodstains - because even the bloodstains of Jewish women are only mi'de'Rabbanan (and it would therefore fall under the category of 'Gezeirah li'Gezeirah', which Chazal did not usually decree).

(a) The Tana Kama of a Beraisa considers bloodstains from Rekem Tahor - because, in his opinion, most women from Rekem were Nochrim.

(b) Rebbi Yehudah declares them Tamei - because most of them, he claims, were Geyrim, and they only conveyed the impression of being Nochrim because they had gone astray and adopted the lifestyle of Nochrim.

(c) Bloodstains from among the Nochrim are certainly Tahor, and from among Yisre'eilim, they are Tamei - Rebbi Meir equates (the Din of) bloodstains from among the Kutim with those from among Yisre'eilim.

(d) The Chachamim declare even the bloodstains of Yisre'eliyos Tahor - assuming were found in a Hefker place, because, had they been Tamei bloodstains, both Yisre'eili and Kuti women would have hidden them.

(a) We reconcile what we learned a little earlier, that Rebbi Meir considers Kutim to be Geyrei Arayos, with his ruling here, that their bloodstains are Tamei - by accepting the latter as his basic opinion (that Kutim are true Geyrim). However, when they later discovered them serving idols on Har Gerizim, Chazal declared their money Hefker, giving it a Din like that of Nochrim (slightly stricter than the Tana Kama, who made a compromise in the stringency).

(b) Nevertheless, the S'tam Mishnah (Rebbi Meir) in Kesuvos includes a Kutis in the list of girls who receive K'nas for rape, declining to apply the decree there (so that people realize that they are idolaters and keep away from them) - because he considers it more important to enforce the fine, to ensure that the rapist does not get away with his sin.

(c) There would be no point in ordering the rapist to give the money to the poor - because seeing as there is no claimant, he would never pay up.

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