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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 48



(a) We try to resolve the current She'eilah (whether the responsibility that Shimon accepts for the damages to Reuven's ox, even incorporates those that it sustains via a third party), from another Beraisa. The Tana there says - that if Reuven brought his ox into Shimon's Chatzer, and a third person's ox came and gored it, assuming that he entered ...
1. ... without permission - he is Patur.
2. ... with permission - he is Chayav.
(b) Again, we refute the suggestion that the Tana is referring to the owner of the Chatzer by countering 'Lo, Patur Ba'al ha'Shor, ve'Chayav Ba'al ha'Shor', and again, we try to refute this answer by querying the significance of 'Reshus'. We cannot answer this Kashya like we answered earlier (by differentiating between the Reshus ha'Shutfin and the Reshus ha'Rabim) - because that was fine with regard to Shein, but when it comes to Keren, the animal is Chayav in whichever Reshus it damages.

(c) We answer by establishing the Beraisa according to Rebbi Tarfon - who draws a distinction between Keren in the Chatzer ha'Nizak (which pays Chatzi Nezek) and Keren in the Reshus ha'Rabim (which pays Nezek Shalem).

(d) This resolves our problem - because now, we can establish the Beraisa in the same way as we did the previous one (that with permission makes it a case of Keren bi'Reshus ha'Nizak ([i.e. 'shel Shutfin'] rendering the owner of the ox Chayav), whereas 'she'Lo bi'Reshus' renders it a case of Keren bi'Reshus ha'Rabim (and he will be Patur - though only from Nezek Shalem, not completely).

(a) The goat belonging to the owner of the Chatzer that ate the dough brought in by a woman who came to bake with his permission - subsequently died.

(b) Rava, who obligated the woman to pay for the goat, does not argue with Rav, who ruled earlier that if Shimon's ox ate the fruit that Reuven brought into his Chatzer without permission, he is Patur, because it had the option not to eat - because Rav is speaking without permission, whereas Rava is speaking with permission (in which case, the woman also undertook to look after the owner's possessions (though this is not the last word on the matter, as we shall soon see).

(c) From another case, where a woman, who brought her wheat into someone's house without permission for grinding, was later declared liable to pay damages sustained by the owner's ox after eating the wheat - we can extrapolate that had she received permission, she would have been Patur.

(d) We now reconcile the former case, where Rava obligated the woman to pay even if she entered the Chatzer with permission, and the latter case, where she was declared Patur by restricting the stringency of the former case to baking only - because there, the woman knows that in the process of baking, she inevitably needs to uncover her arms. Consequently, the owner will be discouraged from entering the Chatzer whilst she is there, and it is she who of necessity, takes responsibility for the safety of the owner's property. In other cases, the person who enters with permission does not accept responsibility for the owner's property (as we learned above).

(a) In a case where Reuven takes his ox into Shimon's Chatzer without permission and the ox digs craters in Shimon's field, it is obvious that Reuven is liable to pay for the damage perpetrated by his ox. Should Shimon subsequently declare his field Hefker, Rava continues, he is liable for all subsequent damage that is caused by the craters.

(b) We learn from the Pasuk "Ki Yichreh *Ish Bor*" - "Ish Bor", 've'Lo Shor Bor' (that a person is not liable for a pit that has been dug by his ox).

(c) Nevertheless, in the previous case, Rava obligates Shimon to pay - because he should have filled in the pit (or at covered it) before declaring his field Hefker.

(a) Rava also rules that if Reuven takes his ox into Shimon's Chatzer without permission and the ox injures Shimon or Shimon trips over it, Reuven is liable. When he says 'Ravatz' Patur', he means - that should the ox defecate, spoiling 'vessels' (e.g. food) in the process, Reuven is Patur, because the feces is considered a 'pit', and the Torah exempts vessels in a pit.

(b) This is fine according to Shmuel, who considers *all* obstacles 'Bor'. It is not so fine however, according to Rav - who considers obstacles a 'pit' only if the owner declared them Hefker (failing which, they have the Din of Shor, which is Chayav for damaging vessels) and no-one said here that the owner declared the feces Hefker.

(c) We resolve Rava's ruling with Rav - by applying the principle 'S'tam Gelalim, Afkuri Mafkar Lehu' (that as a rule, the owner tends to declare the droppings of his animals Hefker).

(d) He is only Patur however, for vessels, but not if the feces caused injury to the owner himself. We do not apply the D'rashah "Ish Bor", 've'Lo Shor Bor' - because that is confined to a Bor in the street, which is automatically Hefker, but not to the animal droppings, which the owner declares Hefker (instead of removing them), for which he is Chayav, as we explained earlier).

(a) In a follow-on from the previous case (where Reuven takes his ox into Shimon's Chatzer without permission and the ox injures Shimon or Shimon trips over it), Rava adds that Shimon injures Reuven's ox, he is Patur. Rav Papa qualifies this - by restricting it to a case where Shimon did not know that Reuven's ox was there. If he did, his right to remove it would not permit him to injure it (unless it refused to move and had to be forced out), and he would be held responsible.

(b) In fact, Rava and Rav Papa follow their own ruling elsewhere, where Rava and some say Rav Papa, issued a statement that if two people were walking with or without permission, and they collided, they are Patur.

1. With permission means - walking in the street, or in a Chatzer that they share or if the owner granted them permission to walk there.
2. ... without permission means - running in the street.
(c) We can extrapolate from their statement - that if one of them had permission but the other, didn't, then the former would be Patur, the latter, Chayav.



(a) Rava initially qualifies our Mishnah, which obligates Reuven to pay, should the ox that he brought without permission fall into Shimon's pit and foul up his water - by restricting it to when the damage occurs immediately; should it develop only later, he is Patur.

(b) We object when he attributes this to the principle "Ish Bor", 've'Lo Shor Bor', exempting him from subsequent damage done to the water, which is considered a 'vessel' - because that would clash with the opinion of Rav, who holds that Bor only applies to something that the owner declared Hefker (and unlike feces, there is no reason to assume that a person declares a Neveilah Hefker).

(c) We therefore amend Rava's distinction to whether it was the body of the ox that caused the damage, which is actual damage for which one is Chayav - and the stench, which the ox did not do, but which comes as a result of the ox's death. The latter is only a G'rama (an indirect damage), for which one is Patur.

(a) To answer the Kashya on our Mishnah, which obligates Kofer if the ox falls into the pit and kills the owner's father or son, Rav establishes the Mishnah by an ox which is Mu'ad to do just that. The problem with Rav's explanation is - that, in that case, why was the ox not stoned after the first killing?

(b) We cannot answer (like we answered earlier to explain how an animal can ever become a Mu'ad) ...

1. ... that the ox ran away before they could stone it - because the ox could not possibly have escaped from the pit by itself.
2. ... that the witnesses did not recognize the ox or when the Zomemei Zomemin became Zomemin - because here there is a Kol, and the details of the case would be widely known.
(a) To make Rav's answer viable, Rav Yosef adds - that the ox did not jump into the pit in order to kill the person inside it, but fell into it after spotting some vegetables at the edge of the pit (see Tosfos above 44a. DH 'Hacha Nami'), making the entire act (including the killing of the person in the pit), a Toldah of Shein.

(b) In spite of what we learned earlier (that whenever the ox is not stoned, the owner is exempt from Kofer), he is Chayav Kofer here, (even though the ox is Patur from Sekilah) - because that principle only applies by Keren, which the Torah exempted she'Lo be'Kavanah (and Kofer together with it); but not here, where the Chiyuv is that of Shein, and where Sekilah is not applicable in the first place. In such a case, there is nothing to exempt him from Kofer, when it falls due.

(c) It is only unusual for an ox to this the first three times, but after the third time, it becomes normal, and changes from Keren Meshuneh to Shein (though it is extremely to understand how this works, seeing as the ox fell into the pit each time in a way that was completely unintentional).

(a) To answer the above Kashya, Shmuel establishes our Mishnah by Chatzi Kofer like Rebbi Yossi Hagelili who says - that a Tam pays Chatzi Kofer (and 'Meshalem es ha'Kofer' in our Mishnah, means 'Chatzi Kofer').

(b) Ula too, establishes our Mishnah by a Tam, like Rebbi Yossi Hagelili, but he adds that Rebbi Yossi Hagelili holds like Rebbi Tarfon - who holds that Keren in the Chatzer of the Nizak pays full Nezek. By the same token, Rebbi Yossi Hagelili will hold that the Tam in our Mishnah pays full Kofer (see Gilyon ha'Shas). What Ula gains is the fact that we no longer need to explain Kofer to mean Chatzi Kofer.

(c) According to Ula, it is indeed necessary to restrict the occupant of the pit to someone in the Nizak's household, because to be Chayav Nezek Shalem in the case of Shein, the damage must take place in the Chatzar ha'Nizak. But, according to Shmuel, why does the Tana need to do this? Seeing as, in his opinion, he pays Chatzi Kofer, there is no reason to differentiate between the Chatzar ha'Nizak and the Reshus ha'Rabim; so what difference does it make who is in the pit?

(d) To reconcile Shmuel with our Mishnah - we conclude that the Tana only mentioned that the owner's father or son were in the pit because it is more likely to have happened that way.

(a) Rav rules like the Tana Kama in our Mishnah (who assumes that when the owner permits someone to enter his courtyard, he automatically takes responsibility for the safety of whatever he brings with him. Shmuel rules - like Rebbi, who disagrees, unless he specifically undertakes to do so.

(b) The Reisha of the Beraisa says 'K'nos Shorcha ve'Shamro, Hizik Chayav, Huzak Patur' - implying that S'tam, the owner of the Chatzer accepts responsibility (like the Rabbanan of Rebbi). This clashes with the Seifa 'K'nos Shorcha va'Ani Eshmerenu' - implying that S'tam, he does not (like Rebbi).

(c) Rebbi Elazar replies 'Tavra, Mi she'Shanah Zu ... '. Rava establishes the entire Beraisa like the Rabbanan. Nevertheless, the Seifa says 'va'Ani Eshmerenu', not because he needs to (seeing as in their opinion, he accepts responsibility anyway), only to balance with the Reisha, where he does need to say 'Sh'mor', as we explained.

11) Rav Papa establishes the entire Beraisa like Rebbi. To explain the difference between the Reisha and the Seifa, he establishes Rebbi like Rebbi Tarfon (who says that when Keren occurs in the Chatzar of the Nizak, the Mazik pays full damage). We now explain the Reisha with regard to paying full damages - because he specifically told him to guard it himself, in which case, he was not Makneh him a portion in the Chatzer (making it a case of Keren be'Chatzar ha'Nizak, for which he pays full damages). If on the other hand, he had not specifically told him to guard the ox himself, he would automatically be Makneh him a portion in the Chatzer (making it a Chatzar ha'Shutfim, and he would pay only Chatzi Nezek).


(a) The Tana draws a distinction between an ox that meant to gore another ox, and inadvertently struck a pregnant woman, killing her babies - from which he is Patur from paying, and a man who meant to strike another man, and inadvertently struck a pregnant woman, killing her babies - who is Chayav to pay.

(b) According to the Tana Kama, we evaluate the damage by assessing the value of the woman when she was pregnant and her current value and making the Mazik pay the difference. The reason that the woman's husband receives the D'mei V'lados, and not the woman herself is - because of a 'Gezeiras ha'Kasuv' which specifically grants all monetary rights of the babies to the husband.

(c) Should her husband no longer be alive, says the Tana of our Mishnah - the D'mei V'lados go to the husband's heirs.

(a) Finally, the Tana exempts someone who kills the babies of a Shifchah who was set free or of a Giyores, in the same way - because anyone who is holding something belonging to a Ger, may keep it the moment the Ger dies.

(b) The Tana refers to the case of a Shifchah who was set free, and does not just say 'Haysah Meshuchreres' - because the former has connotations of having taken place recently, which in turn, conforms better with our case, which must be speaking when she had no children from the Meshuchrar when he died.

(c) If it was a Yisre'eilis who was married to a Meshuchrar or to a Ger - the Din would be exactly the same, since it is the father who receives the D'mei V'lados, and not the mother.

(d) Nevertheless, the Tana refers specifically to a Meshuchreres and to a Giyores - since it is more common for a Meshuchrar to marry a Meshuchreres, and a Ger, a Giyores.

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