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Bava Kama 42

BAVA KAMA 42 - - dedicated by Reb Gedalia Weinberger of Brooklyn, N.Y. in memory of his father, Reb Chaim Tzvi ben Reb Shlomo Weinberger (Yahrzeit: 18 Adar). Reb Chaim Tzvi, who miraculously survived the holocaust, always remained strongly dedicated to Torah and its study.



(a) In another Beraisa, Rebbi Yossi Hagelili learns from "u'Ba'al ha'Shor Naki", 'Naki mi'D'mei V'lados'. He is referring - to a case where the ox gored a pregnant woman, killing her babies.

(b) Rebbi Akiva asks on Rebbi Yossi Hagelili - that since we already have the Pasuk "Ki Yinatzu *Anashim*, ve'Nagfu Ishah Harah" - from which we can extrapolate "Anashim", 've'Lo Sh'varim', why does Rebbi Yossi Hagelili require another Pasuk?

(c) To answer this Kashya, Rav Ula B'rei de'Rav Idi interprets "Anashim" differently. Based on his D'rashah "Anashim", 've'Lo Shevarim Dumya la'Anashim', he confines the P'tur by animals to a Mu'ad (similar to a person, who is always a Mu'ad), but a Tam will be Chayav (and it is with regard to a Tam that Rebbi Yossi Hegelili Darshens "u'Ba'al ha'Shor Naki", 'Naki mi'D'mei V'lados').

(d) Rava objects to Rav Ula B'rei de'Rav Idi's D'rashah - because it is illogical to be more stringent with a Tam than with a Mu'ad.

(a) Rabah's version of Rav Ula B'rei de'Rav Idi's D'rashah ("Anashim", 've'Lo Shevarim Dumya la'Anashim') is - that he too, learns that a Mu'ad is Patur in the above case, but he adds 'Kal va'Chomer le'Tam'. And "u'Ba'al ha'Shor Naki" comes to restrict the exemption to a Tam (but a Mu'ad remains Chayav).

(b) We learn from the same Pasuk "ve'Chi Yinatzu Anashim", "Anashim", ve'Lo Sh'varim' - that if an animal shames a person, the owner is Patur from Bo'shes.

(c) Abaye asks on Rabah why we do not say by Bo'shes too, that only a Tam is Patur, but a Mu'ad is Chayav. We know that this is not the case - because if it had been, then Rebbi Yossi Hagelili should have said 'Patur mi'D'mei V'lados u'mi'Boshes'.

3) Abaye and Rava therefore, come up with a different version of "Anashim", 've'Lo Shevarim Dumya la'Anashim'. The case where we would have obligated an animal that killed, to pay for the babies, even though a person in the equivalent case would be Patur is - if with the same stroke, he also killed the woman, in which he would be Chayav Miysah. Consequently, based on the principle 'Kam Leih be'de'Rabah Mineih' he would be Patur from paying.


(a) Rav Ada bar Ahavah queries Abaye and Rava's answer. According to him, even a person would be Chayav in the case of "Ki Yinatzu Anashim", even if killed the woman with the same stroke, because he holds like Rebbi Shimon. Rebbi Shimon says that if someone meant to kill Reuven and he struck Shimon by mistake (the case discussed by the Torah) - he is Patur from Miysah and liable to pay.

(b) He is not Patur from paying anyway, due to Tana de'Bei Chizkiyah (who exempts even someone who killed be'Shogeg from paying for the damage) - because Rav Ada bar Ahavah does not hold like Tana de'Bei Chizkiyah.

(c) Rav Ada bar Ahavah finally establishes "Anashim", 've'Lo Shevarim Dumya la'Anashim' - when the animal actually meant to kill the woman, in which case a person would be Patur (because of 'Kam Leih bi'de'Rabah Mineih'), but an animal is Chayav (which is why Rebbi Yossi Hagelili requires "u'Ba'al ha'Shor Naki" to exempt animals too).

(d) When Rav Chagai came from the south, he brought with him - a Beraisa in support of Rav Ada bar Ahavah.




(a) In yet another Beraisa, Rebbi Akiva says "Ba'al ha'Shor Naki", 'Naki mi'D'mei Eved'. Despite the Din of thirty Shekalim that one has to pay if one's ox gored an Eved - Rebbi Akiva makes this D'rashah, which is referring to a *Shor Tam*, whereas the Din of thirty Shekalim pertains specifically to a Mu'ad.

(b) We ask why Rebbi Akiva does not ask on himself the same Kashya that he asked earlier on Rebbi Eliezer (when he Darshened 'Naki me'Chatzi Kofer'). Rav Shmuel bar Yitzchak resolves this problem - by establishing the case when the owner went and Shechted the animal before Beis-Din managed to stone it.

(c) Rebbi Akiva nevertheless asked this Kashya on Rebbi Eliezer. It certainly occurred to Rebbi Akiva that if this answer was good enough for him, then it is good enough for Rebbi Eliezer too - only he thought that Rebbi Eliezer might have a better answer.

(a) Rebbi Eliezer on the other hand, did not establish the case when the owner Shechted it first, like Rebbi Akiva - because in such a case, where the animal is actually Chayav Miysah (as opposed to *his* case, 'Miskaven La'harog es ha'Beheimah .. ', where it is not), we do not need a Pasuk to exempt the owner from having to pay if he Shechted it first.

(b) The problem with Rebbi Akiva now is - that, in that case, how could *he* present this answer?

(c) Rav Asi quoted a great man who explained Rebbi Akiva. His name was - Rebbi Yossi b'Rebbi Chanina.

(a) Rebbi Yossi b'Rebbi Chanina based his answer on another statement of Rebbi Akiva - where he said that if a Shor Tam injured a person - the owner has to pay Nezek Shalem min ha'Aliyah.

(b) This would answer the Kashya that we asked on Rebbi Akiva ('Naki mi'D'emei Eved') adequately - because the Kashya was based on the fact that a Shor Tam pays mi'Gufo ... , and now we see that, according to Rebbi Akiva (in this case), he pays min ha'Aliyah.

(c) Rebbi Zeira refutes this however, on the basis of a Beraisa - where Rebbi Akiva learns from the Pasuk "ka'Mishpat ha'Zeh Ya'aseh Lo" - that if an ox kills a child, the owner pays mi'Gufo and not min ha'Aliyah (even though he pays Nezek Shalem).

(d) When Rebbi Zeira said 'Tavra Rebbi Akiva li'Gezizeih', he meant - that he broke the power of his fist (meaning that he compromised on his original Chidush; Nezek Shalem, yes, but min ha'Aliyah, no).

(a) Rava finally explains that Rebbi Akiva requires "Ba'al ha'Shor Naki", to preclude from the 'Havah Amina' that the owner of the Tam would have to pay min ha'Aliyah by Eved more than by any other case of Nezek - because the owner has to pay thirty Sheloshim should his Mu'ad ox kill him, even if he is worth only one.

(b) We know for sure that Rava's explanation is the right one - because it has the support of a Beraisa.

(c) Before concluding that Eved by Tam is even more stringent than Mu'ad (as we just explained), the Tana gives two reasons why we really should not require a Pasuk to exempt him from D'mei Eved. One of them is because an Eved should not be any different than a ben Chorin (where Tam pays mi'Gufo). The second reason is - because it is even a 'Kal va'Chomer' from a ben Chorin, whose full value one has to pay, yet there is a difference between a Tam and a Mu'ad, how much more so in the case of an Eved, where one only pays thirty Shekalim.

(a) In a Beraisa, Rebbi Akiva discusses the Hekesh "ve'Heimis Ish O Ishah". The Pasuk cannot be coming to obligate a Mu'ad that killed a woman just like when it killed a man - because that we already know from the previous Pasuk "ve'Chi Yigach Shor es Ish O es Ishah".

(b) In fact, the Pasuk is comparing a woman to a man - with regard to the Din of Yerushah, to teach us that the Kofer for killing a woman goes to her heirs (and not to her husband), just like the Kofer for killing a man goes to his heirs.

(c) Rebbi Akiva learns from the Pasuk "ve'Yarash Osah" - that a husband inherits his wife.

(d) We actually derive this from the word "li'She'eiro" mentioned in the Pasuk, and 'She'eiro' means his wife. The Torah cannot be saying that the man's property goes to his wife), as is implied by the Pasuk - because the Torah also writes there "mi'Mishpachto" (and not "mi'Mishpachtah").

(a) Resh Lakish reconciles the two D'rashos of Rebbi Akiva (that, on the one hand, her property goes to her husband, and on the other, her Kofer goes to her heirs) - by differentiating between her regular property, which goes to her husband, and Kofer, which goes to her heirs, because a husband only inherits what the woman actually had when she died, but not what falls due only after her death.

(b) We learn from the sequence of the Pasuk "ve'Heimis Ish O Ishah ha'Shor Yisakel ve'Gam Be'alav Yumas. Im Kofer Yushas Alav" - that the Chiyuv Kofer only falls due after the ox is killed, which in turn, can only be carried out after the Nizak actually dies.

(c) If not for this Pasuk, we would have thought - that the obligation to pay Kofer takes effect as soon as Beis-Din have assessed the Nizak for death, even though he is still alive (in which case, the Kofer would not then be considered 'Ra'uy' [what will fall due after death], but Muchzak [what is due already]).

(d) The Tana of the Beraisa rules that someone who strikes a pregnant woman and kills her babies, must pay the woman her Nezek and Tza'ar, and the value of the babies to her husband. In the event that ...

1. ... her husband has died - his heirs receive the D'mei V'lados.
2. ... the woman has died - her heirs receive her Nezek and Tza'ar.
(a) In the event that the woman was a Shifchah Meshuchreres or a Giyores, and neither she nor her husband are still alive - the Mazik may retain the Nezek, the Tza'ar and the D'mei V'lados. Generally, it is a matter of 'Kol ha'Kodem Zachah' ('First come, first served!'). Here however, where the Mazik already has the ox in his possession, he automatically acquires it.

(b) Rabah and Rav Nachman reconcile this Beraisa, where we see that the woman's Yorshin inherit her and not her husband with Rebbi Akiva's D'rashah from "ve'Yarash Osah" (from which he learns that it is the husband who inherits his wife) - by establishing the current Beraisa by a divorcee, who has no husband.

(c) We learn from the Pasuk "Ka'asher Yashis Alav *Ba'al ha'Ishah*" - that the babies belong to the Bo'el, even if he was not married to the woman. And that explains why the woman does not receives a share in the babies in any of the above cases.

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