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Bava Kama 43



(a) Rabah holds that if the creditor's heirs claimed Karka, the Bechor receives a double portion - because this is the Karka that was Meshubad to their father (rendering them Muchzak), but not if they claimed money - since that money was not Meshubad to them (in which case, it is Ra'uy).

(b) Rav Nachman says - that if they claimed money, he receives double, because that is what was owed to their father (rendering them Muchzak), but not if they claimed Karka, since that is not the Karka that their father left behind, nor is it what he lent (in which case, it is Ra'uy).

(c) Bearing this in mind - why did Rabah and Rav Nachman establish the case in the Beraisa (where it is the woman's heirs who inherit her Nezek and Tza'ar and not her husband) by a divorcee? Why did they not establish it (even by a woman who was married) according to their respective opinions in Bava Basra: when Beis-Din claimed money (which is considered Ra'uy), according to Rabah, and when they claimed Karka, according to Rav Nachman?

(a) To answer the previous Kashya, we establish Rabah and Rav Nachman like the B'nei Ma'arva according to the Rabbanan, who say - that a Bechor does not take a double portion in the Ribis that is included in their father's Sh'tar Chov.

(b) The basis of this Din is - because they consider all Sh'vach (automatic appreciation of a field ... ) to be Ra'uy.

(c) In our Sugya however, Rabah and Rav Nachman are explaining the Beraisa like Rebbi, in whose opinion - the Bechor receives a double portion in all appreciation, including Ribis, and from documented loans that were claimed after their father's death, irrespective of whether they claimed money or Karka.

(d) A Bechor or a husband will not receive a double portion in the Kofer left to them on the death of the father or the wife respectively - because seeing as it does not due until after death, even Rebbi will agree that it is called Ra'uy.

(a) Someone who meant to kill an animal and inadvertently killed a person - is not Chayav.

(b) We know that the same Din applies in the equivalent case by an ox - because, as we shall see later 'ke'Miysas ha'Ba'alim Miysas ha'Shor' (an ox is only put to death under the same circumstances as its owner would be).

(c) Resh Lakish learns ...

1. ... from the Pasuk "Kesef Sheloshim Shekalim Yiten la'Adonav, ve'ha'Shor Yisakel" - that the owner only pays thirty Shekalim if the ox is stoned, otherwise not.
2. ... from this - that if an ox killed an Eved unintentionally, the owner is Patur from paying thirty Shekalim, since the ox is not stoned.
(a) Rabah learns from the Pasuk "ha'Shor Yisakel, ve'Gam Be'alav Yumas. Im Kofer Yushas Alav" - that if an ox killed someone unintentionally, the owner does not pay Kofer (in similar vein to Resh Lakish by Eved, whom we just explained).

(b) An ox that killed someone is not stoned on the admission of the owner - because the owner himself would not be sentenced to death by his own admission that he killed someone (and, as we just learned, 'ke'Miysas ha'Ba'alim Kach Miysas ha'Shor').

(c) We can extrapolate from Rebbi Eliezer, who said earlier (in connection with Naki me'Chatzi Kofer) 'Ein Diyni Ela be'Miskaven La'harog es ha'Beheimah ... ' - that (a Tam is Patur from Chatzi Kofer, but that) a Mu'ad would be Chayav to pay Kofer, even though the ox is not put to death.

(d) Rabah can argue with Rebbi Eliezer - because a. he relies on the Pasuk, and b. he has the support of a Mishnah, as we shall see later.

(a) According to Rabah, whenever the ox is not stoned, the owner is Patur from paying. In that case, we can ask - why does the Beraisa obligate the owner to pay on his own admission (when we just learned that the ox is not stoned in such a case)?

(b) We answer that we are talking here about paying Damim, not Kofer, which means - that even though Kofer may supersede Damim (regular damages), it does not however, negate it. Consequently, whenever Kofer is not applicable, the obligation to pay Damim remains.

(c) The point in telling us that one is Patur from Kofer is - that should the Mazik have no money with which to pay then, if his basic Chiyuv is Kofer (which means 'atonement' [for having committed a sin]), then, lacking atonement, he remains subject to punishment (at the Hand of Hashem), which is not the case if his basic Chiyuv is Damim (see also Tosfos Rabeinu Peretz).

(a) The Beraisa continues 'Heimis Shori es Avdo shel P'loni, Eino Meshalem al-Pi Atzmo'. This appear to clash with our current interpretation of the Reisha - because, assuming that the Seifa too, is talking about Damim (and assuming that K'nas, like Kofer, incorporates Damim), why should he be exempt from having to pay?

(b) Rabah did not want to answer that the Reisha speaks about Damim, and the Seifa, about the basic Chiyuv of K'nas - because it is irregular to make such distinctions between the Reisha and the Seifa of a Mishnah or Beraisa, it is a 'Dochek' (a forced answer).

(c) In fact, Rabah establishes the Seifa by Damim, too, and to resolve the discrepancy, he cites a basic difference between Kofer in the Reisha and K'nas in the Seifa. The owner pays Kofer by his own admission (in addition to causing the ox to be stoned) - should there be two witnesses who testify that the ox killed someone, only they do not know whether it is a Tam or a Mu'ad (both of which are subject to stoning); whereas in the identical case of K'nas, he will be Patur from paying (even though the ox is stoned), because of the principle 'Modeh bi'K'nas Patur'.

(d) Using this distinction - Rabah explains that in the Reisha, where it is possible to pay by his own admission (when there are two witnesses, as we just explained), there is an underlying Chiyuv of Damim that obligates him to pay by his own admission (even when there are not); whereas in the Seifa, where, even when there *are* witnesses (as in the previous case), one does not pay by one's own admission, there is no Chiyuv Damim at all.




(a) The Beraisa says 'Kol she'Chayav be'Ben Chorin, Chayav be'Eved, Bein be'Kofer Bein be'Miysah'. The problem with the term 'Bein be'Kofer' is - that there is no Kofer by an Eved.

(b) We answer that Kofer in this case means Damim, posing a Kashya on the Beraisa that we learned earlier (distinguishing between a ben Chorin and an Eved) exempting the latter from paying through his own admission. According to what we just learned - he should be liable, because wherever the one is Chayav, the other is Chayav, too.

(c) According to some, Rav Shmuel bar Yehudah, who asked the Kashya, gave the answer; according to others, it was Rabah who established it by K'nas. The basic difference whether the Tana is speaking about Damim or K'nas is - whether he is Chayav by his own admission (Damim) or through two witnesses (K'nas).

(d) the Tana is now teaching us - that if Reuven's ox inadvertently gored Shimon in the presence of two witnesses, he is liable to pay Damim, just as he would be if it had gored a free person.

(a) Rava asks on Rabah why, if Kofer she'Lo be'Kavanah is Chayav to pay Damim, 'Isho she'Lo be'Kavanah' should be Patur.

(b) Rava takes for granted that 'Isho she'Lo be'Kavanah' is Patur. We try to prove this from the Mishnah in ha'Kon'es, regarding someone who sets fire to a haystack. The Tana there rules in a case where a kid goat got burned ...

1. ... whilst it was tied to the burning haystack, as did an Eved who was loose - that he is liable to pay for the kid.
2. ... that was loose but the Eved was tied to the haystack - that he is Patur.
(c) Assuming that Patur in the Seifa refers to both the Eved and the kid-goat, he is Patur ...
1. ... on the Eved - because one is only Chayav on an Eved when it is a Din in K'nas (but not by Eish).
2. ... on the kid - because it should have run away.
(d) Rava decline to learn that he is Patur only on the kid, because of Kam Leih be'de'Rabah Mineih - since he holds 'Isho Mishum Mamono'.
(a) We reject the proof however (that this Mishnah is a source for the P'tur of 'Isho she'Lo be'Kavanah'), by citing Resh Lakish - who confines 'Patur' in the Seifa of the Mishnah under discussion to the kid. According to him, the Tan speaks when he actually set fire to the Eved, and he is Patur with regard to the kid because of 'Kam Leih be'de'Rabah Mineih'.

(b) We refute the proof that 'Isho she'Lo be'Kavanah is Patur', from the Beraisa 'Chomer ba'Eish mi'be'Bor ... ', which omits the distinction that Eish pays Damim she'Lo be'Kavanah, which Bor does not - because the Torah exempts Miysas Adam be'Bor.

(c) We refute the proof from there - on the grounds that 'Tana ve'Shiyer' (the Tana omitted other cases too).

(d) There is no Damim by Eish be'Kavanah - a. because there is no Kofer by Eish, and b. because of 'Kam Leih be'de'Rabah Mineih'.

(a) We therefore conclude that, based on Rabah's Chidush (that Shor she'Lo be'Kavanah pays Damim) Rava meant to ask whether Eish too pays Damim, or not. On the one hand ...
1. ... he might not have to pay - because, unlike Shor, Eish be'Kavanah does not pay Kofer.
2. ... he might have to pay - like Shor, who pays Damim she'Lo be'Kavanah (even though there is no Kofer by Eish be'Kavanah).
(b) The outcome of Rava's She'eilah is - Teiku.
(a) When Rav Dimi came from Eretz Yisrael, he learned in the name of Rebbi Yochanan, from the Pasuk "Im Kofer ... " - 'Le'rabos Kofer she'Lo be'Kavanah'.

(b) Abaye asked him that, in that case, why should we not Darshen the same from the Pasuk "*Im Eved* Yigach ha'Shor". We refute the objection to this (on the grounds that Resh Lakish has already exempted Eved she'Lo be'Kavanah) - with the principle 'Gavra a'Gavra Ka'ramis' (one cannot ask a Kashya from one Amora on another).

(c) When Ravin Amar Rebbi Yochanan arrived in Bavel from Eretz Yisrael, he taught - that "*Im Eved* Yigach ha'Shor" indeed comes to include Eved she'Lo be'Kavanah.

(d) Even Resh Lakish, who does not Darshen "Eved", "Im Eved", might Darshen "Kofer", "Im Kofer", because it is written where the Torah discusses the payment - whereas "Im Eved" is written where the Torah discusses the damage, where "Im Eved" is needed to distinguish between an Eved and a ben Chorin.

(a) The Torah writes in Emor "ve'Ish Ki Yakeh Kol Nefesh Adam". We learn from ...
1. ... "Kol Nefesh Adam" - that a man who kills a person is Chayav even if the latter is a Katan.
2. ... "ve'Ish" - that it is only a grown-up who is Chayav for killing a person, but not a Katan.
(b) Based on these D'rashos, the Tana initially thinks that it should not be necessary to write "O Ben Yigach O Bas Yigach" to include an ox that gored a child in the Din of Miysah because, if ...
1. ... 'Adam be'Adam' is Chayav even for killing a Katan, then so too should an ox.
2. ... Adam be'Adam, where only a grown-up is Chayav Miysah, is Chayav even for killing a Katan, then an ox, where even a Katan is Chayav, should certainly be Chayav for killing a Katan.
(c) We refute both the 'Mah Matzinu' and the 'Kal va'Chomer' on the basis of the fact - that Adam be'Adam has a stringency over Shor be'Adam, inasmuch as he is Chayav the four additional things, whereas Shor be'Adam is only Chayav Nezek. Consequently, we are unable to learn any Chumras pertaining to Shor be'Adam from it.
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