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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Kama 46

BAVA KAMA 46 - L'Iluy Nishmos Chaim Yissachar ben Yaakov [Smulewitz] and his wife, Esther Chaya Rayzel bas Gershon Eliezer, of Cleveland, Ohio. Sponsored by their children: Moish Smulevitz, Jeri Turkel, Marcia Weinblatt and families.



(a) Rebbi Eliezer says '(Mu'ad) Ein Lo Shemirah Ela Sakin'. Initially, Rabah learns this from "ve'Lo Yishmerenu", which he interprets to mean - that a Mu'ad is not subject to Shemirah, but must be killed.

(b) Abaye refutes Rabah's explanation based on the Pasuk - "ve'Lo Yechasenu", which, by the same token, ought then to mean that a pit is not subject to covering (but must be filled in).

(c) We know that "ve'Lo Yechasenu" does not mean that a pit is not subject to covering (but must be filled in) - from the Mishnah in the next Perek, which specifically exonerates a person who covered his pit properly from having to pay damages.

(d) Abaye finally connects Rebbi Eliezer with Rebbi Nasan (whom we quoted in the first Perek and) - who forbids in a Beraisa rearing a dangerous dog or placing a rickety ladder in one's home. And he bases this on the Pasuk in Ki Seitzei "ve'Lo Sasim Damim be'Veisecha".

***** Hadran Alach Shor she'Nagach es ha'Parah *****

***** Perek Shor she'Nagach es ha'Parah *****


(a) Our Mishnah discusses a Tam ox that gored a cow and a dead fetus was subsequently found beside it. It is obvious why the owner of the ox pays Chatzi Nezek for the cow. And he pays a quarter of the damage for the fetus - because since we are in doubt as to whether the ox gored and killed the fetus or whether it died before the goring, we rule 'Cholkin'.

(b) When the Tana adds that the same applies to the reverse case, where a cow gored an ox and a born calf is subsequently found beside the cow. The ...

1. ... Safek is - whether the calf shared in the damage, and whether the Nizak is therefore entitled to claim from its body or not (as will be explained later in the Sugya).
2. ... ruling is - that the Nizak claims half the damage from the cow and a quarter from the calf.
(c) Rav Yehudah Amar Shmuel establishes our Mishnah like Sumchus, who says - 'Mamon ha'Mutal be'Safek, Cholkin'.

(d) The Chachamim say in the same case - 'Zeh K'lal Gadol, ha'Motzi me'Chaveiro Alav ha'Re'ayah'.

(a) There are two reasons why the Chachamim added 'Zeh ha'K'lal', one of them simply expands the case in our Mishnah - to teach us that 'ha'Motzi me'Chaveiro .. ' applies even if the Nizak is Bari (certain), and the Mazik is Shema.

(b) Alternatively, 'Zeh ha'K'lal' comes to include another case - where Reuven sells Shimon an ox (which Shimon wants for plowing, but) which turns out to be a Nagchan (forcing him to Shecht it). Shimon wants his money back (and the fact that he has already paid renders him 'Motzi me'Chaveiro'), in keeping with the majority of people, who sell animals for plowing rather than for the meat.

(c) According to Rav - we go after the majority, who sell fields for plowing, and the buyer is entitled to his money back.

(d) We ask why the purpose of sale is not evident from ...

1. ... Shimon's trade (whether he is a butcher who normally sells meat to eat, or a farmer who normally sells live animals, and we answer - that Shmuel is speaking when Shimon trades both as a farmer and as a butcher.
2. ... the price that Reuven paid (after all, an animal that is used for meat is generally worth far less than one that is used for plowing) - because we are speaking in a case when for some reason, the price of meat was sky high, and matched the price of animals for plowing.



(a) 'mi'Mari Rashvasach Pari Afra' means - that if the debtor has no money with which to pay, accept from him whatever he has to offer (i.e. all his property is Meshubad to the creditor), even oats.

(b) The reason that Shimon is claiming from Reuven here is - because we are speaking when Reuven has money, and Shimon wants money, not the ox (rightfully so, according to Rav). Otherwise, he would be able to retain the ox, as we just explained.

(c) The basis of the Machlokes between Rav and Shmuel is - whether the Din of Rov (going after the majority) holds even against a Chezkas Mamon (Rav) or whether the Chezkas Mamon overrides the Din of Rov (Shmuel).

5) We cited Rav Yehudah Amar Shmuel, who established our Mishnah like Sumchus learned earlier, but that according to the Chachamim 'ha'Motzi me'Chaveiro Alav ha'Re'ayah'. We know for certain that Shmuel's statement is correct - because it has the support of a Beraisa.


(a) Rebbi Shmuel bar Nachmeni extrapolates from the Pasuk "Mi Ba'al Devarim Yigash Aleihem", 'ha'Motzi me'Chavero, Alav ha'Re'ayah' - by Darshening the word "Yigash" as if the Torah had written "Yagish" (meaning that the claimant must bring his proof to the Dayanim).

(b) Rav Ashi rejects the need for such a D'rashah - because it is a 'S'vara' ('Just as one only goes to the doctor when it hurts, so too, can one only open a case when there is proof'), which needs no Pasuk to support it.

(c) So he uses the Pasuk for the Din of Rav Nachman Amar Rabah bar Avuhah, 'she'Ein Nizkakin Ela le'Tove'a Techilah' - meaning that if Reuven claims a Manah from Shimon, and Shimon counters that Shimon seized a security against the loan, Beis-Din will first settle Reuven's claim and only then will they deal with that of Shimon.

(d) Beis-Din will break this rule and give Shimon's claim precedence - if for example, there are merchants who are keen to purchase the security that Reuven purportedly seized, and who will have left town by tomorrow. Alternatively, they will do so - if Reuven's claim (due to the fact that people see that he is under pressure to obtain money) causes Shimon's property to devalue, and, by enabling him to retrieve his security, he will be free to sell his fields at their market price.

(a) We learned in the Seifa of our Mishnah that in a case where a cow gored an ox and a born calf is subsequently found beside the cow, the Nizak may claim half the damage from the cow and a quarter from the calf. The problem with this ruling is - that a Tam only pays Chatzi Nezek, so why is the Mazik obligated to pay three quarters in this case?

(b) Abaye resolves this problem - by interpreting a half to mean (half of the claim on the cow, which is really) a quarter, and likewise a quarter to mean (a quarter of the claim on the calf, which is really) an eighth.

(a) According to Abaye's interpretation of the case, the Nizak cannot demand Chatzi Nezek from the Mazik 'mi'Mah Nafshach' (seeing as it was either his cow alone that did the damage or his cow together with the calf) - because the Tana is speaking when the cow and the calf belonged to two different owners.

(b) In the first Lashon, we establish the Mishnah when the Nizak claimed from the owner of the calf first (but not if he first claimed from the owner of the cow) - because by doing that, he is admitting that the calf was a partner in the damage.

(c) But if he were to first claim from the owner of the cow - he would be able to argue that as far as *he* knew, the cow alone did the damage, and that, if the Nizak claimed otherwise, he would have to prove it.
Consequently, he would be permitted to take the full Chatzi Neaek from the cow.

(d) The second Lashon holds - that either way, the owner of the cow can push him off and argue that, as far as he is concerned, the cow had a Chezkas Me'uberes (Tosfos DH 'Meida'), and the calf was therefore a partner in the goring, allowing the Nizak only a quarter of the damages from the body of the cow, as we explained.

(a) We just discussed Abaye's interpretation of our Mishnah (that a half actually means a quarter, and a quarter, an eighth. Rava objects to this explanation however, on the grounds - that the Tana says a half and a quarter respectively, and not a quarter and an eighth.

(b) Rava therefore re-establishes our Mishnah - when the cow and the calf belong to the same owner.

(c) And as for the half and the quarter - the Tana does not mean a half *and* a quarter, but a half *or* a quarter. Should the cow be available, then the Nizak may claim half the damages from its body; but should it not, then he may only claim a quarter from the body of the calf, ns nor more.

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