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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Kama 39



(a) The Tana rules - that the Shor Tam of a Pike'ach which gored that of a 'Chashu' is Chayav, whereas the Shor Tam of a 'Chashu' which gored that of a Pike'ach is Patur.

(b) The reason for this latter ruling is - because one only appoints an Apotropus (a guardian) to look after Karka, but not Metaltelin (as we learned in the first Perek).

(c) We know that it is not because it is a K'nas, and Yesomim are not subject to K'nasos - because the word 'mi'Gufo' added to 'Ein Ma'amidin Apotropus le'Tam Ligvos ... ' indicates that the reason is because it is Metaltelin. And besides, we will say later that according to those who hold that part of the animal remains a Tam, that part can still not be claimed, even though it is not a K'nas.

(d) The Nizak may however, claim damages from a 'Chashu' if a Shor Mu'ad belonging to him caused the damage. Seeing as a Tam can only become a Mu'ad if the owner has been warned three times (and this is not possible in the case of a 'Chashu' - the ox of a 'Chashu' can become a Mu'ad through the appointment of an Apotropus (who, as long as the ox is a Tam, can accept witnesses to warn the ox, but not to pay).

(a) According to Rebbi Meir, should the 'Cheresh recover, the Shoteh become normal or the Katan grow up, the ox regains its status of Tam - because he holds 'Reshus Meshaneh' (which in effect, means 'New owner, new status'), so that whenever a Mu'ad changes hands, it becomes a Tam once more.

(b) Rebbi Yossi says - that it remains a Mu'ad.

(c) A 'Shor ha'Itztadin' - is an ox that has been trained to gore (a bull-fighting ox).

(d) We learn from the Pasuk "Ki Yigach Shor ... " - that only an ox that gores on its own initiative is put to death, but not a Shor ha'Itztadin.

(a) Rava reconciles the Reisha of our Mishnah, which clearly holds that one cannot appoint an Apotropus to claim from the Shor Tam of a 'Chashu', with the Seifa, which specifically talks about appointing a guardian - by establishing the Seifa by a Mu'ad (or at least with regard to turning it into a Mu'ad, so that from then on, the Nizak will be able to claim).

(b) According to Rebbi Yochanan, should the ox of Yesomim gore after it has become a Mu'ad, it is the Yesomim who are obligated to pay. Rebbi Yossi b'Rebbi Chanina holds - that it is the Apotropus who will be obligated to pay.

(c) According to Rav Yehudah Amar Rav Asi, if someone claims from (young) Yesomim, Beis-Din will not even open the case, even if the claimant comes with a Sh'tar against their deceased father - because Yesomim are not obligated to pay their father's debts ('La'av B'nei Me'abed Mitzvah Ninhu'). The Sugya in Erchin establishes this specifically by a debt which includes Ribis (interest) and where the creditor is a Jew.

(d) The one exception to this is - a debt which includes Ribis where the claimant is a Nochri (and the Ribis is legally payable).

(a) Rebbi Yochanan adds one exception to that of Rav Yehudah Amar Rav Asi - namely, where the claimant is the deceased man's wife claiming her Kesuvah. There, Beis-Din will open the case for the Yesomim's own benefit, because until her Kesuvah is paid, the Yesomim will be forced to feed her.

(b) We reconcile the two contradictory statements of Rebbi Yochanan (bearing in mind that a moment ago, he said that it is possible to claim from damages from Yesomim) - by switching the two opinions in the earlier Machlokes (so that he now holds 'me'Aliyas Apotropus' and Rebbi Yossi b'Rebbi Chanina, 'me'Aliyas Yesomim').

(c) We reject this answer however. Establishing Rebbi Yossi b'Rebbi Chanina as the one who says 'me'Aliyas Yesomim' will be merely jumping out of the frying-pan into the fire - since Rebbi Yossi b'Rebbi Chanina was a Dayan who delved deep into the depths of the Halachah before issuing his rulings. Consequently, seeing as not claiming from Yesomim is an established Halachah, what will it help to make *him* the one who erred.

(a) So we leave the Machlokes as it was. In spite of his principle, Rebbi Yochanan holds 'me'Aliyas Apotropus', and this case is an exception, he claims - because, if we make the Apotropus pay out of his own pocket, nobody will volunteer to act as an Apotropus for Yesomim.

(b) Rebbi Yossi b'Rebbi Chanina on the other hand, is not worried about this - because he knows that, when the Yesomim grow up, they will be obligated to reimburse him.

(c) We make pay him out of his own pocket in the interim - because he is the one who is guilty for not looking after the animal properly.




(a) The Beraisa quotes Rebbi Yehudah ben Nekusa Amar Sumchus who says (with regard to the ox of a Pike'ach who became a Cheresh or a Shoteh, or if its owner went overseas) 'Harei Hu be'Tamuso ad she'Ya'idu Bo bi'F'nei ha'Ba'alim'. The Chachamim say - Ma'amidin Lahen Apotropus, u'Me'idin Bahen bi'F'nei Apotropus'.

(b) Sumchus cannot mean that Beis-Din do not accept witnesses at all, even to warn the ox (so that it should become a Mu'ad) - because how could he then talk in the Seifa about the ox reverting to its Tamus (seeing as it could not have become a Mu'ad in the first place)?

(c) What he then means is - 'Ein Ma'amidin Apotropus le'Tam Li'gvos mi'Gufo'; whereas the Chachamim hold 'Ma'amadin Apotropus le'Tam Li'gvos mi'Gufo'.

(d) In the Seifa, Rebbi Yehudah ben Nekusa Amar Sumchus rules that if the Cheresh is cured ... , the ox reverts to becoming a Tam. Rebbi Yossi says - 'Harei Hu be'Chezkaso'. They argue over whether we say 'Reshus Meshaneh' (Sumchus) or not (Rebbi Yossi).

(a) When the Tana of the Beraisa said 'Shor Chashu she'Nagach, Rebbi Ya'akov Meshalem Chatzi Nezek', he really meant - 'Rebbi Ya'akov Omer, Meshalem Chatzi Nezek'.

(b) The Beraisa cannot be referring to a Tam - because, seeing as the Lashon indicates that his Chidush is (not that he is Chayav, but) that he is Chayav to pay Chatzi Nezek, there is no logical reason to single out this case of Tam, since *every* Tam pays Chatzi Nezek?

(c) The problem with the Beraisa if it is referring to a Mu'ad is - 'mi'Mah Nafshach', if the owner guarded it adequately, then he ought to be Patur; whereas if he did not, then he should pay Nezek Shalem?

(d) So Rava establishes Rebbi Ya'akov like Rebbi Yehudah, who holds in a Mishnah later that a Mu'ad does not require a good Shemirah. And the reason that he is obligated to pay Chatzi Nezek is - because Rebbi Yehudah holds 'Tzad Tamus bi'Mekomah Omedes' (When a Tam becomes a Mu'ad, the side of Tamus remains, and a Tam requires a proper guarding.

(a) In that case, Rebbi Ya'akov clearly hold 'Ma'amadin Apotropus le'Tam Li'gvos mi'Gufo'.

(b) In another Beraisa, Rebbi Yehudah renders the ox of a 'Chashu' liable, to which Rebbi Ya'akov responds 'Chatzi Nezek'. Abaye asks - how Rava can possibly equate Rebbi Ya'akov with Rebbi Yehudah, when we now see that they argue?

(c) Rabah bar Ula refutes Abaye's Kashya however - by establishing Rebbi Ya'akov as coming to qualify Rebbi Yehudah's statement, and not to dispute it.

(a) Abaye however, maintains that Rebbi Yehudah and Rebbi Ya'akov do argue. He establishes the Beraisa when the owner did not guard his ox at all, and Rebbi Yehudah's opinion is based on two principles. One of them, is 'Ma'amadin Lahen Apotropus le'Tam ... ' - the other, Tzad Tamus bi'Mekomah Omedes'.

(b) Rebbi Yehudah now holds - that he pays half the damage for the Tzad Tamus and half, for the Tzad Ha'ada'ah.

(c) Rebbi Ya'akov - agrees with the principle 'Tzad Tamus ... ', but disagrees with 'Ma'amidin Apotropus la'Tam ... '. Consequently, the Mazik only pays for the Tzad Ha'ada'ah, but not for the Tzad Tamus.

(a) Rav Acha B'rei de'Abaye asked Ravina why Rava needed to establish the first Beraisa ('Shor Chashu she'Nagach, Rebbi Ya'akov Meshalem Chatzi Nezek) by a Mu'ad. To establish it by a Tam, according to ...
1. ... Rebbi Yehudah - he would have had to make a Shemirah Pechusah (a superficial guarding), which will not suffice for a Tam.
2. ... Rebbi Eliezer ben Ya'akov - who holds that a Shemirah Pechusah will suffice for a Tam, the Tana would have had to speak when he made no Shemirah at all.
(b) And that will explain why the Tana said 'Chatzi Nezek'. Had he just said 'Rebbi Ya'akov Mechayev' and stopped, we would have thought - that Rebbi Ya'akov speaks specifically by a Mu'ad, but by a Tam, he will say 'Patur', because he holds 'Ein Ma'amidin Apotropus le'Tam ... '.

(c) Ravina replied that Rava preferred to establish the Beraisa by a Mu'ad - because since, in his opinion, Rebbi Ya'akov agrees with Rebbi Yehudah in both issues (regarding a Shemirah Pechusah for a Mu'ad and Tzad Tamus bi'Mekomah Omed), as well as 'Ma'amidin Apotropus le'Tam ... ', all this will be incorporated in his statement (presuming that he is speaking about a Mu'ad).

(a) According to Ravina, Rebbi Yehudah and Rebbi Ya'akov - in the second Beraisa ('Shor shel Chashu she'Nagach, Rebbi Yehudah Mechayev ... '), argue over 'Reshus Meshaneh'.

(b) The case will then be - if the ox became a Mu'ad whilst under the jurisdiction of the Apotropus, followed by an improvement in the status of the Chashu.

(c) Rebbi Yehudah holds - that the 'Chashu' is Chayav Nezek Shalem, half for the Tzad Ha'ada'ah (because he holds 'Ein Reshus Meshaneh' [like Rebbi Yossi on the previous Amud]), and half for the Tzad Tamus; whereas according to Rebbi Ya'akov, he is Patur on the Tzad Ha'ada'ah, because he holds 'Reshus Meshaneh' (like Sumchus).

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