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Bava Kama 40



(a) We have learned in a Beraisa that, even though Apotropsin must pay for damages out of their own pockets, they are exempt from Kofer - because Kofer is a Kaparah, and Yesomim do not require a Kaparah.

(b) In another Beraisa, the Tana Kama learn from the Pasuk "ve'Nasan Pidyon Nafsho" - that if a Mu'ad kills a person, the owner is liable to pay the value of the dead man to the dead man's heirs.

(c) Rebbi Yishmael the son of Rebbi Yochanan ben Berokah says - that he pays them his own value.

(a) Rav Chisda suggests that the author of the first Beraisa is Rebbi Yishmael the son of Rebbi Yochanan ben Berokah. In his opinion - the Tana Kama in the second Beraisa holds that Kofer is Mamon, whereas according to Rebbi Yishmael, it is Kaparah.

(b) Rav Papa rejects Rav Chisda's suggestion, establishing the first Beraisa even like the Tana Kama. In his opinion - even the Tana Kama concedes that Kofer is Kaparah, and they argue over the interpretation of "Pidyon *Nafsho*". The Tana Kama interprets it as the value of the dead man ('D'mei Nizak'), Rebbi Yishmael ... , as 'D'mei Mazik' (the Mazik's own value).

(c) The Tana Kama bases his opinion on the Gezeirah-Shavah "Shisah" ("Im Kofer Yushas Alav") "Shisah" ("ke'Chol Asher Yuhas Alav"). The second Pasuk is written in the context of - someone who struck a pregnant woman and killed her unborn fetuses.

(d) According to Rebbi Yishmael ... the Pasuk "ve'Nasan Pidyon Nafsho" (implying the Nefesh of the Mazik) takes preference over the Gezeirah-Shavah. The Tana Kama maintains - that the 'Gezeirah-Shavah' forces us to interpret "Nafsho" as 'D'mei Nizak'.

(a) When Rava boasted about Rav Acha bar Ya'akov's greatness - Rav Nachman responded - with a request to bring him to him to put that greatness to the test.

(b) When Rava obeyed and brought Rav Acha before him, he asked Rav Nachman - whether, if a Shor of two partners which killed a person, each has to pay Kofer (in spite of the fact that the Torah obligates only one Kofer, and not two), or whether each pays only half the Kofer (in spite of the fact that the Torah obligates one Kofer and not a half).

(c) He had no problem with the equivalent case by Nezek - where it is obvious that they pay half each (seeing as the Torah's concern is to supplement the Nizak's loss, whereas here, where the Torah is concerned about the Mazik obtaining a Kaparah, that may well not suffice.

(a) Rav Acha then asked Rav Nachman a second She'eilah in connection with a Mishnah in Erchin, where the Tana says 'Chayvei Erchin Memashkenin Osam' - meaning that the treasurer of Hekdesh can force a person who undertook to pay someone's Erech to Hekdesh, to provide a security until he pays.

(b) The reason that he differentiates between Chayvei Erchin and Chayvei Chata'os and Ashamos (by precluding the latter from the treasurer's right to claim) on the grounds - that seeing as they are a Kaparah, the sinner does not require an incentive to 'remind' him to fulfill his obligation.

(c) He therefore asked Rav Nachman whether, seeing as Kofer is a Kaparah, no Mashkon is necessary (like Chayvei Chata'os and Ashamos), or whether it is more comparable to Chayvei Erchin, since, like Erchin, Kofer is only a monetary obligation, that goes to one's fellow man and not to Hashem, and which one therefore tends to take less seriously.

(d) Rav Nachman responded to the second She'eilah - by begging him for a respite, as he was still stymied by the first She'eilah.

(a) In a case where Reuven borrows an ox from Shimon on the understanding that it as a Tam, and after turning out to be a Mu'ad, it subsequently gores in Reuven's domain, the Tana of the Beraisa obligates Reuven to share the costs with Shimon. In the Seifa, where the ox became a Mu'ad before Reuven returned it and it subsequently gored again - he obligates Shimon to pay Chatzi Nezek, and exemps Reuven from having to pay anything.

(b) Reuven cannot claim that ...

1. ... he borrowed an ox, and not 'a lion' - because the Tana speaks when he was aware that the ox was a goring ox (only he did not know that it already gored three times.
2. ... he borrowed a Tam and not a Mu'ad - because, had he borrowed a Tam, he would also have had to pay for its damages.
3. ... even if he had had to pay for the Tam's damages, it would have been out of the body of the ox, but not out of his own pocket - because even then, he would have had to reimburse Shimon out of his own pocket.
(c) We nevertheless remain with a query on the Reisha (as it stands), according to ...
1. ... the Halachah that 'Palga Nizka K'nasa' - by exempting Reuven on the grounds that had the ox been a Tam, as he stipulated, he would had the option of admitting and being Patur.
2. ... those who hold 'Palga Nizka Mamona' - by exempting him on the basis that, had the ox been a Mu'ad, he could anyway have exempted himself by letting it loose in the marshes, where the Mazik would not have had access to it.



(a) To avoid the problem of Reuven admitting and being Patur or of his letting the ox loose in the marshes, we finally establish the Reisha of the Beraisa where - Beis-Din seized the ox on behalf of the Nizak (in which case, even if it had been a Tam, there is nothing that Reuven could have done about it).

(b) Nevertheless, Shimon is Chayav to pay for half the damages. He cannot claim that ...

1. ... Reuven should have returned the ox to him, and not allowed it to fall into the hands of the Nizak - because Reuven can retort - that even if he had returned the ox to him, the Nizak would have claimed it from him.
2. ... had the ox been in his possession, *he* would have let it loose in the marshes - because, seeing as the ox was a Mu'ad, the Nizak would have claimed 'min ha'Aliyah'?
(c) This is a valid argument, assuming that Shimon has money with which to pay. Even if he does not however - he has no leg to stand on, because just as the ox was Meshubad to him (when it damaged in the Reshus of Reuven), so too, was it Meshubad to his creditor (the Nizak, for whom he must accept partial responsibility, as we explained above), because of 'Shibuda de'Rebbi Nasan'.

(d) Rebbi Nasan learns from the Pasuk "ve'Nasan la'Asher Asham Lo" - that if Reuven owes Shimon money and Shimon owes Levi, Levi may claim directly from Reuven.

(a) We learned in the Seifa of the Beraisa, where the ox became a Mu'ad before Reuven returned it and it subsequently gored again - that Shimon pays Chatzi Nezek, whilst Reuven pays nothing. The reason that Shimon does not pay full damages, according to Rebbi Yochanan, is - because 'Reshus Meshaneh'.

(b) He establishes two different authors for the two sections of the Beraisa - because the Tana of the Reisha, which obligated Nezek Shalem, despite the fact that the animal changed hands from the owner to the borrower, clearly holds 'Reshus Einah Meshaneh'.

(c) According to Rabah, both sections of the Beraisa hold 'Reshus Einah Meshaneh' and the reason that in the Seifa, Shimon pays only Chatzi Nezek, is - because he can argue that Reuven does not have the authority to turn his Tam into a Mu'ad.

(d) Rav Papa takes the opposite view. He holds that, despite the fact that the Beraisa holds 'Reshus Meshaneh', nevertheless, in the Reisha, the ox remains a Mu'ad in the domain of the borrower - because a borrowed ox always remains the property of the owner (and although it is now under the jurisdiction of the borrower, it is not considered a new domain).

(a) We learned in our Mishnah that a Shor ha'Itztadin is not Chayav Miysah. According to Rav, it is Kasher to go on the Mizbe'ach - because it killed be'O'nes.

(b) Shmuel holds - that it is disqualified from going on the Mizbe'ach.

(a) The Tana Kama of a Beraisa precludes an animal that raped or that was raped from the Pasuk in Vayikra "Min ha'Beheimah", an animal that was worshipped in the name of idolatry from "min ha'Bakar", a Muktzah (dedicated to the worship of idolatry) from "Min ha'Tzon". From the "Vav" of "u'Min ha'Tzon" - he precludes an ox that gored.

(b) A 'Muktzah' animal is - one that has been designated for idol-worship, even though it was not yet worshipped.

(c) An animal that raped, that was raped or that killed a person requires a Pasuk to disqualify it from the Mizbe'ach - in a case where there was only one witness, or that the owner alone saw it happen, in which case the animal is not put to death.

(d) The problem that Rebbi Shimon has with 'Noge'ach' and 'Rove'a' is - why the Torah finds it necessary to preclude them both. Why can we not learn one from the other?

(a) The leniency that ...
1. ... Noge'ach has over Rove'a is - that it is not Chayav be'O'nes like Ratzon.
2. ... Rove'a has over Noge'ach is - that it does not pay Kofer.
(b) We know that the P'sul of Rove'a applies even to an O'nes - by virtue of the fact that it extends to Nirva (which, by an animal, is automatically an O'nes).
(a) We try and disprove Shmuel (who said that an animal that gored be'Ones is Pasul to go on the Mizbe'ach), from the first of the two previous distinctions of Rebbi Shimon - because when he says that Rove'a is not Chayav be'O'nes like Ratzon, we initially interpret this to mean that it is not disqualified from going on the Mizbe'ach.

(b) To resolve Shmuel with the Beraisa - we establish Rebbi Shimon (when he says that Rove'a is not Chayav be'O'nes like Ratzon) by the death-sentence.

(c) Rebbi Shimon now learns from the fact that a Noge'ach be'Ones is Patur from the death sentence - that we cannot derive that a Noge'ach be'Ratzon is disqualified from the Mizbe'ach from Rove'a, and that a Pasuk is therefore required.

(d) We substantiate this interpretation, because - according to the original one, we are taking for granted that the Torah disqualifies a Noge'ach be'O'nes from the Mizbe'ach, whereas in fact, there is nothing in the Pasuk itself to differentiate between a Noge'ach be'Ratzon and a Noge'ach be'O'nes.

(a) In the second of the above distinctions, Rebbi Shimon said that O'nes pays Kofer, whereas Rove'a does not. The problem that we have with this, assuming that ...
1. ... the animal killed the person with the Revi'ah - is that, why there should be any distinction between an ox that killed with its horns and one that killed by means of Revi'ah.
2. ... the person did not die is - in that case, it is obvious that the ox is not killed, seeing as the person did not die.
(b) Abaye replies that the person was subsequently killed in Beis-Din - and that we might therefore have considered the ox as being responsible for his death.

(c) Rava establishes the Beraisa when the animal did kill the person with the Revi'ah. And he answers the Kashya - by making a distinction between killing him with its horns (which is deliberate) and killing him through Revi'ah (which is not).

(d) The connection between this case and that of an animal that walked over a child in the street and killed it - is that is the classical case over which they argue (whether an animal which killed via Regel in the street is Chayav Kofer (Abaye) or not (Rava), and we now extend the Machlokes to Shen, where the animal derives benefit.

13) To substantiate Rav's opinion regarding bringing a bull-fighting ox on the Mizbe'ach, the Beraisa says that a Shor ha'Itztadin is not Chayav Miysah and that it is Kasher to go on the Mizbe'ach, because is an O'nes.

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