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Gitin 42

GITIN 42 - sponsored by Hagaon Rav Yosef Pearlman of London, England, a living demonstration of love for and adoration of the Torah.

1) [line 16] IY MISHUM HA LO IRYA - If [your argument is] because of this [logic], there is no proof (i.e. this logic is refutable)

2) [line 29] ELA, MECHAVARTA KED'SHANINAN ME'IKARA - Rather, it is clearly correct as we originally answered (i.e. one of the first two answers)

3) [line 33] SHIYER KARKA KOL SHEHU - he held back a minimum amount of land (stipulating that this land was not part of the gift)

(a) An ox (or other animal) that gores one or two times is referred to as a Tam. The owner only pays half the value of the damages (Chatzi Nezek) that his ox causes through goring, with the maximum payment set at the full value of the ox that gored. If the ox gored three times and the owner was informed and warned to guard his ox each time, the ox is termed a Mu'ad. If the ox damages from then on, the owner has to pay the full value of the damages (Nezek Shalem) that his ox causes through goring. He is held more liable since it is now evident that the ox's nature has changed to that of a harmful and injurious animal, and its owner therefore knows that he must guard it well.
(b) The Amora'im argue (Bava Kama 16a) as to why the Torah decreed that the owner of a Tam pays Chatzi Nezek and not Nezek Shalem. One opinion holds that by law he should pay Nezek Shalem because he did not guard his ox properly, but the Torah was lenient (since the ox has not been proven to be a harmful animal) and exempted him from half of the damages. According to this opinion, Chatzi Nezek is "Mamona" (compensation) and not "Kenasa" (a fine imposed by the Torah). The other opinion feels that by law the owner should be entirely exempted from paying the first three times that his ox causes damage, since oxen are relatively docile and do not have to be constantly watched to prevent them from causing damage. Even so, the Torah imposed upon him a fine of Chatzi Nezek, so that he should guard his ox more carefully in the future. According to this opinion, Chatzi Nezek is Kenasa and not Mamona.
(c) The distinction between the payment of Mamon and the payment of Kenas occurs when the owner of the ox admits, without the testimony of witnesses, that his ox caused damage. According to the opinion that maintains Chatzi Nizka Mamona, he must pay for half of the damages. But the opinion that maintains Chatzi Nizka Kenasa rules that he is exempt from payment since a person does not have to pay Kenas if he admits to his guilt of his own accord. (See Background to Kesuvos 41:3:d.)
(d) In our Sugya, whether the ox is a Tam or a Mu'ad, and whether Chatzi Nezek is considered a Kenas or Mamon, if the slave is gored on a day that he is working for his master, the owner of the ox pays the master. If he was gored on a day that he is working for himself, the owner of the ox pays the slave.

See next entry.



(a) SHOR HA'MU'AD - An ox that gores two times is referred to as a Tam. The owner only pays half the value of the damages that his ox causes through goring. If the ox gored three times and the owner was informed and warned to guard his ox each time, the ox is termed a Mu'ad and from then on the owner has to pay the full value of the damages that his ox causes through goring.
(b) CHIYUV KOFER - If a person's Shor ha'Mu'ad kills another person, the owner of the ox is Chayav Misah b'Yedei Shamayim. He can *redeem* himself by paying Kofer to the children or heirs of the dead man, as the verse states, "v'Im Kofer Yushas Alav, v'Nasan Pidyon Nafsho." (Shemos 21:30). The amount paid as Kofer is defined as either the owner's value, or the dead man's value, according to the various opinions of the Tana'im (Makos 2b). If the ox kills a slave, the Kofer is 30 Sela'im and it is paid to the slave's owner.
(c) CHATZI KOFER - Although the owner of a Shor Tam pays half of the damages that it causes, the Tana'im argue as to whether he must pay half of the Kofer if his ox kills a person. Rebbi Eliezer learns that he does not from the verse, "u'Ba'al ha'Shor Naki." (Bava Kama 41b). Rabbi Yosi ha'Gelili argues, ruling that there is a liability for Chatzi Kofer (Kesuvos 41b).
7) [line 3] KA KALYA KARNA - (lit. the Keren (principle) has been destroyed) the slave has been killed, and as such, both "owners" have suffered a total loss

8) [line 4] TZAMSAH YADO - his hand withered

A person who wounds his fellow Jew (Chovel b'Chaveiro), is obligated to pay five payments, i.e. four payments in addition to Nezek, which one must always pay for damages. The five payments are:

1. NEZEK (Damages) - If one causes damage to the person of a fellow Jew, such as blinding his eye, cutting off his hand or breaking his foot, Beis Din assesses the damages that he caused based on the depreciation such damages would cause to a slave on the slave market. Our Gemara calls Nezek, "Sheves Gedolah."
2. TZA'AR (Pain) - The payment for pain inflicted is evaluated as the amount that the injured person would be ready to pay to have the identical injury inflicted in a painless manner (Bava Kama 85a). Pain payments are due even if no other damage (other than the pain) was inflicted -- for example, if one person burned another's fingernail without causing a wound (Mishnah, ibid.). The amount of this payment ultimately depends upon the physical and financial situation of the injured person (RAMBAM Hilchos Chovel u'Mazik 2:9).
3. RIPUY (Medical expenses) - He must pay all medical costs until the injured person heals completely from his wounds.
4. SHEVES (Unemployment) - He must pay unemployment for the duration of the injured person's recovery. Sheves is evaluated as if the injured person is protecting a pumpkin patch from birds, a job that requires only minimal exertion and can be accomplished even by an invalid. (The money that the injured person loses due to his permanent handicap, though, is covered by the Nezek payment.) Our Gemara calls Sheves, "Sheves Ketanah."
5. BOSHES (Shame) - Boshes is evaluated based on the status of the person who caused the embarrassment and the status of person who was embarrassed. According to most opinions, the shame caused *by* an undignified person is greater than the shame caused by an average or dignified person (YERUSHALMI Kesuvos 3:8, RASHI to Bava Kama 83b, BARTENURA to Kesuvos 3:7, RAMBAM Hilchos Chovel u'Mazik 3:1, TUR Choshen Mishpat 420 and SHULCHAN ARUCH CM 420:24). Others rule that the shame caused by an *average* person is greater than the shame cause by an undignified or a dignified person (RASHI to Kesuvos 40a. The RAN rules that this is the Halachah in all cases except for Ones and Mefateh, which follow the previous opinion). With regard to a person who was embarrassed, shame caused *to* a dignified person is greater than the shame that an average or undignified person suffers (Bava Kama ibid.).
10) [line 10] MEIMRA - a statement of the Amora'im
11) [line 11] ME'UKAV GET SHICHRUR - a slave who as yet has not received his bill of release, (a) whether a Chatzi Eved, Chatzi Ben Chorin who must be freed by his remaining master, or a full slave who has been designated Hefker (ownerless) or consecrated as Hekdesh by his owner (RASHI, TOSFOS, 1st explanation); (b) *only* a Chatzi Eved, Chatzi Ben Chorin (TOSFOS, 2nd explanation)

12a) [line 17] MISHNAH ACHARONAH - the ruling of the later Mishnah (when Beis Hillel agreed to Beis Shamai that the remaining master of a Chatzi Eved, Chatzi Ben Chorin must free his portion of the slave)
b) [line 17] MISHNAH RISHONAH - the ruling of the original Mishnah (when Beis Hillel ruled that a Chatzi Eved, Chatzi Ben Chorin works one day for his master, and each successive day for himself)

(a) If the owner of an Eved Kena'ani (a non-Jewish slave) hits his slave and wounds him by taking out the slave's eye or permanent tooth, the slave becomes entitled to his freedom (Shemos 21:26-27). The owner must intentionally wound him, but need not intend to wound him specifically in the eye or tooth (Kidushin 24b).
(b) The same applies if the master dismembers one of the slave's 24 Roshei Evarim (limb-tips). The 24 Roshei Evarim are the ten fingers, ten toes, nose, ears and the male Ever (RASHI). The Gemara (Kidushin 24a) adds more limbs for which this Halachah applies.
(c) The requirement to free the slave under such circumstances is considered a Kenas (a penalty or fine), which is imposed upon the master for unjustly wounding his slave (Bava Kama 74b; see Rashi to Gitin, top of 21b). Therefore, if the owner admits that he is guilty of taking out his slave's tooth or eye, he need not free the slave (Bava Kama ibid.; see above, entry 4:c)

14) [line 22] EINO TZARICH - he does not need [a Get Shichrur]
15) [line 23] B'CHULAN - (lit. with all of them) in the case of all of the principle limbs that the owner of a slave knocks out or cuts off

16) [line 26] HA'MACHRI'IN LIFNEI CHACHAMIM - those who seek to find a compromise among the opinions of the Chachamim

17) [line 31] MIDRASH CHACHAMIM - an explication of [the verses by] the Chachamim

18) [line 32] OCHEL BI'TERUMAH
(a) All of the Kohanim, male or female, are entitled to eat Terumah. However, when a Bas Kohen marries a Yisrael, she loses her right to eat Terumah, and she is considered a Zar (non-Kohen), who is prohibited from eating Terumah (that is, her husband is "Posel" her from eating Terumah). Should her Yisrael husband divorce her or die, she may eat Terumah as before, as long as she has had no children from him (Vayikra 22:12-13, Yevamos 69a).
(b) With regard to a Bas Yisrael, the converse is the Halachah. From birth, she is prohibited from eating Terumah as are all Zaros. If she marries a Kohen she becomes "Kinyan Kaspo" (his "possession") and is permitted to eat Terumah (her husband is "Ma'achil" her). If he divorces her or dies and she has no children from him, the prohibition for her to eat Terumah returns. If she does have a child from him, she continues to eat Terumah in the merit of her late husband, the father of her child (ibid.).
(c) Even the slaves of Kohanim eat Terumah because of their master, since they are his possessions.

19) [line 37] CHOLKIN CHELEK ECHAD AL HA'GOREN - during the distribution of Terumah at the threshing floor, the two of them are only allowed to received portions *together* (Yevamos 99b)

There is a Machlokes Tana'im as to whether "Adam Makneh Davar she'Lo Ba l'Olam" - "a person can acquire a thing that has not yet entered the world," or not (Kedushin 63a). Some examples of things that have not yet entered the world are the fruits that will grow on a tree or the goods to be produced by one's wife.

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