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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 44



(a) The Pasuk "O Ben Yigach O Bas Yigach" is written by a Mu'ad. We initially try to extend the Chiyuv for goring a child to a Tam from a 'Mah Matzinu' - because if, when the Torah obligates an ox for goring a grown-up, it makes no distinction between a Tam and a Mu'ad, the same should apply to when the ox gores a child.

(b) We then add a 'Kal va'Chomer', on the grounds that if, when an animal gores a man or a woman, 'whose strength is weak by Nezikin', the Torah does not differentiate between a Tam and a Mu'ad, then it should certainly not differentiate by a young boy or girl, 'whose strength is strong by Nezikin' - meaning whereas grownups are Chayav for injuring one another, a child who wounds a grown-up is Patur, even though a grown-up is Chayav for injuring a child. The 'Kal va'Chomer' then means that just as they don't lose as Mazikin, they ought to gain as Nizakin.

(c) We know that a child who injures a grown-up is Patur - from a Mishnah in ha'Chovel, which exempts a 'Chashu' from damages.

(d) The problem with ...

1. ... the 'Mah Matzinu' is - that we cannot use a 'Mah Matzinu' (le'Chumra) to learn something which is inherently lenient (a Tam) from something which is inherently strict (a Mu'ad).
2. ... the 'Kal va'Chomer' is - that by the same token, we cannot Darshen from a 'Kal va'Chomer' something which is inherently lenient (a child, who is Patur from Mitzvos) from something which is inherently strict (a grown-up, who is inherently strict).
(a) We reject the explanation that the first Pircha ('ve'Chi Danin Kal me'Chamur ... ') is a Pircha on the 'Kal va'Chomer, too - on the grounds that it would be wrong to presume Ben and Bas to be inherently lenient (on the basis of their being Patur from Mitzvos), seeing as they also contain the inherent Chumra 'she'Kein Yafeh Kochan be'Nizakin'.

(b) We finally learn the Chiyuv of a Tam that gores a child - from the extra "Yigach" (in the Pasuk "O Ben Yigach O Bas Yigach").

(a) Our Mishnah exempts an ox that intended to kill another ox but inadvertently killed a person, that intended to kill a Nochri, but killed a Yisrael, or that intended to kill a Nefel, but killed a healthy baby. The first case in the Mishnah that the Tana exempts is - that of an ox that was scratching against a wall, when it fell on a person and killed him.

(b) The animal is not stoned, says Shmuel, but the owner is Chayav to pay Kofer. Rav says - that he is Patur from Kofer, too ...

(c) ... because of the Pasuk "ha'Shor Yisakel ... " ('Kol Z'man she'ha'Shor bi'Sekilah, ha'Ba'alim Meshalmin Kofer', as Rabah Darshened on the previous Daf).

(a) We ask why Rav even needs to Darshen "Im Kofer", and why Shmuel obligates the ox that was scratching .... . The problem is - that we only require a Pasuk to exempt she'Lo be'Kavanah Kofer by a Mu'ad, whereas we are talking about a Tam (see Rashash)?

(b) In a similar case, where the ox is Chayav Sekilah for falling into a pit and killing someone in the pit, Rav establishes the case when it jumped into the pit because it saw some vegetables there. The problem with establishing our case too, when the ox became a Mu'ad by constantly scratching against walls and knocking them down on people is - that in that case, why is it not Chayav to be stoned?

(c) We answer that here too, the ox scratched against the wall (not in order to knock it down on the people who happened to be standing next to it, but) because its back was itching - which we know because, after the wall had fallen, it continued to scratch against it.

(d) We ask that the owner should nevertheless be Patur from Kofer, seeing as the damage occurred through Tzeroros, and the Torah only obligates Kofer that occurred through the body of the ox. Rav Mari B'rei de'Rav Kahana replies - that the Tana is speaking when the ox pushed the wall bit by bit, and the wall slowly fell with the pressure.




(a) All computations regarding the Chiyuv and P'tur of Miysah and Kofer are possible. Mu'ad be'Kavanah is Chayav by both. The Tana says that ...
1. ... Mu'ad she'Lo be'Kavanah" is - Chayav Kofer, but Patur from Miysah.
2. ... Tam be'Kavanah is - Chayav Miysah but Patur from Kofer.
3. ... Tam she'Lo be'Kavanah - is Patur with regard to both.
(b) This Beraisa is a proof - for Shmuel, who includes Kofer she'Lo be'Kavanah from "Im Kofer".
(a) Rebbi Yehudah obligates an ox to pay for damage she'Lo be'Kavanah. He learns it from - Kofer.

(b) And Rebbi Shimon's source for exempting him is - 'Miysas ha'Shor'.

(c) Rebbi Yehudah learns from Kofer and not from 'Miysas ha'Shor' - because he prefers to learn one case of payment from another case of payment (rather than from Miysas ha'Shor, which is one of punishment).

(d) And Rebbi Shimon learns from the death of the ox - because he prefers to learn a case where the liability is on the ox from one where the liability is on the ox (rather than from Kofer, which is the liability of the owner).

(a) We extrapolate from our Mishnah, which exempts an ox that meant to kill another ox but inadvertently killed a person from stoning - that if it meant to kill one person but inadvertently killed another, it would nevertheless be stoned.

(b) Our Mishnah does not conform with the opinion of Rebbi Shimon, who learns from the Pasuk ...

1. ... in Shoftim "ve'Arav Lo ve'Kam Alav" - that a person is not Chayav Miysah unless he actually aimed to kill the person that he hit.
2. ... "ha'Shor Yisakel, ve'Gam Be'alav Yumas" - that an animal that did not kill the person that it meant to kill is Patur from Miysah too ('ke'Miysas ha'Ba'alim ... '), a D'rashah with which the Rabbanan agree on principle.
(c) The Rabbanan hold - that 'Niskaven La'harog es Zeh ve'Harag es Zeh' is Chayav.

(d) Rebbi Yanai explains that the Rabbanan learn from "ve'Arav Lo ve'Kam Alav" a case of 'Zarak Even le'Gav' - meaning that if someone threw a stone into a group of Jews and Nochrim, and killed a Jew, he is Patur.

(a) The case of 'Zarak Even le'Gav' cannot be speaking when ...
1. ... there were a majority of Jews in the group - because then we would naturally go after the majority (and he would be Chayav).
2. ... the group was half fifty-fifty - because then, we would apply the principle (based on the Pasuk in Mas'ei) "ve'Hitzilu ha'Eidah' (which teaches us 'Safek Nefashos Lehakel').
(b) The case must therefore be - when there were a majority of Jews, in spite of which he is Patur.

(c) The Pasuk is then coming to teach us the principle 'Kol Kavu'a ke'Mechtzah al Mechtzah Dami' (whenever the minority is fixed, we consider it to be fifty-fifty).

(a) What the ox belonging to a woman, orphans, in the charge of an Apotropus, an ox that roams in the desert, and an ox belonging to Hekdesh or to a Ger who died without leaving relatives have in common, according to the Tana Kama is - that they are all subject to stoning.

(b) Rebbi Yehudah argues with - an ox that roams in the desert, an ox belonging to Hekdesh and one belonging to a Ger who died without leving relatives, since they all have no owner.

(c) The Rabbanan derive that all six cases in our Mishnah are Chayav to be stoned - from the seven times "Shor" that appear in the Parshah of an ox goring a person (one for an ox which has an owner, and six to include the six above cases).

(d) Rav Huna extrapolated from the fact that Rebbi Yehudah found it necessary to list both Shor ha'Midbar and Shor shel Ger she'Meis ... (seeing as both are Hefker) - that the ox is Patur, even if the owner declared it Hekdesh or Hefker after the goring, the Hekdesh and the Hefker are not valid. We know this to be correct, because it is supported by a Beraisa.

10) The Tana of the Beraisa learns from the Pasuk ...
1. ... "ve'Hu'ad bi'Ve'alav ve'Heimis" - that the ox must belong to the owner from the time that it gores until the time of the court-case, in order to be subject to stoning.
2. ... "ha'Shor Yisakeil" - that it must even belong to him up to the time of the court sentence.
(a) Our Mishnah says that in a case where the owner declared his ox Hekdesh or Shechted it ...
1. ... after it was sentenced to stoning - his Hekdesh and Shechitah are invalid.
2. ... before the sentence - they are valid.
(b) He also says - that in a case where the owner handed his Tam or Mu'ad ox to one of the four Shomrim to look after - the Shomer takes his place to become Chayav full damages if it is a Mu'ad, and Chatzi Nezek, if it is a Tam.
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