# dafyomi

lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A SAFEK ABOUT WHETHER THE FETUS HELPED DAMAGE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Inference):</font></b> This is because we do not know if the calf 
          was born before or after the goring. Had we known it was 
          born after (and was a partner in the damage), the entire 
          half-damage could be collected from it!
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	This is like Rava taught, that if a pregnant cow 
          damaged, one may collect from the calf.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> It was part of the cow.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If a chicken damaged, we do not collect from the eggs.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It is like something separate from the chicken.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW MUCH DOES ONE PAY IF HIS OX CAUSED A COW TO MISCARRY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> (In the Reisha, a dead calf was found near a 
          gored cow.) We do not evaluate the cow by itself and the 
          calf by itself. Rather, we evaluate how much the calf 
          increased the value of the mother.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> To evaluate it by itself would make the damager 
               pay too much.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Similarly, if Reuven cut off the hand of Shimon's slave 
          (we do not estimate how much Shimon would demand to allow 
          this, rather, we evaluate the loss in value of the slave) 
          or damaged his field (we do not estimate the damaged area 
          by itself, rather, we evaluate how much it decreased the 
          value of a sizable portion of the field).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (R. Acha brei d'Rava):</font></b> Why is this considered 
          'too much', if this is what the damager should pay?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> The damage was done to a pregnant 
          cow, so that is what we evaluate.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Obviously, if Reuven owns the cow and Levi owns the 
          calf, Reuven gets the compensation for the increased fat.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Who gets paid for the increased value due to 
          the larger volume (it looks fatter and healthier)?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rav Papa):</font></b> Reuven gets it.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (R. Acha brei d'Rav Ika):</font></b> They share it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Halachah is, they share it.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>BRINGING PROPERTY INTO ANOTHER'S DOMAIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon brought his pots or fruit into 
          Reuven's yard without permission, and Reuven's animals 
          broke or ate them, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven's animals were damaged by the pots or 
               fruit, Shimon is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Shimon had permission to bring them in, Reuven 
               is liable.
<br>
<br>

sjt:
<font><b>1) ACCEPTING RESPONSIBILITY TO WATCH THE PROPERTY OF OTHERS</b></font><b>
<br>QUESTION:</b> The Mishnah (47a) teaches that when a potter places his pots in someone else's courtyard without permission and they are broken there, the owner of the courtyard (the 'Ba'al ha'Bayis') is not obligated to compensate the potter for his pots. If the animal of the Ba'al ha'Bayis is damaged by the pots, the potter must compensate the Ba'al ha'Bayis.
<p>
If the potter brought his pots into the courtyard with permission and the animal of the Ba'al ha'Bayis breaks them, the Ba'al ha'Bayis is liable. Rebbi argues and says that the Ba'al ha'Bayis is never liable -- even when the potter places his pots in the courtyard with the owner's permission -- unless the Ba'al ha'Bayis specifies that he will watch the pots while they are in his courtyard.
</p><p>
The Gemara asks that the words of the Chachamim in the first part of the Mishnah seem self-contradictory. Is it assumed that a person automatically accepts to guard the property of another person or not? The Mishnah first teaches that when the potter brings his pots into the courtyard without permission, he is responsible for damages done to the animal of the Ba'al ha'Bayis. This implies that when he brings his pots into the courtyard <i>with</i> permission, he is <i>not</i> responsible for damages done to the animal. It is <i>not</i> assumed that a person (in this case, the potter) normally takes responsibility for animals or objects of others that can be damaged by his property (if his property is in a place where it has permission to be), for if a person <i>does</i> watch the property of another and protects it from being damaged by his own property, the potter should take responsibility for the animal even when he brings in his pots with permission. However, the Mishnah then states that when a person brings his pots into a courtyard with permission of the owner, the owner is obligated to pay for damages that his animal does to the pots. This implies that it <i>is</i> assumed that a person takes responsibility to protect the property of others.
</p><p>
Rava answers that when a potter brings in his pots with permission, the owner of the courtyard accepts responsibility for anything that happens to them, even breakage by the wind. <b>RASHI</b> explains that Rava means that when the Ba'al ha'Bayis <i>invites</i> a potter into his courtyard, his invitation ('Enter!') implies, 'Enter, and I will take care of what you bring in.' However, the potter never accepted responsibility for the objects of the Ba'al ha'Bayis (since, obviously, he never had to tell the Ba'al ha'Bayis to bring his items into the courtyard).
</p><p>
Rava apparently means that one accepts responsibility for another person's objects only when he tells the other person to bring the objects into his domain, but not simply because the objects are in his vicinity. Why, then, does the Gemara emphasize that when the Ba'al ha'Bayis tells the potter to enter, he accepts responsibility 'even if the wind breaks the pots.' This point seems entirely irrelevant to the answer of Rava. Rava's main point is that the potter who does not say anything does <i>not</i> accept responsibility! The Gemara should emphasize this point instead of emphasizing the positive aspect (that according to Rava the Ba'al ha'Bayis <i>does</i> accept responsibility even for that which the wind breaks)! (<b>TOSFOS RABEINU PERETZ</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS RABEINU PERETZ</b> explains the Gemara's answer as follows. Rava means that since the Ba'al ha'Bayis -- by inviting the potter to enter -- accepts responsibility not only for damages that <i>his</i> animal causes to the pots, but even for damages that come from external sources (such as the wind). Accordingly, he intends to exempt the potter from <i>all</i> responsibility of watching the pots. It may be assumed that the potter does not have to prevent his pots from damaging the property of the Ba'al ha'Bayis since the Ba'al ha'Bayis relieved him entirely from the responsibility of watching the pots. The main point of the Gemara is indeed that the Ba'al ha'Bayis accepted to protect the pots even from external forces that might harm them. The <b>PNEI YEHOSHUA</b> and <b>RASHASH</b> offer a similar explanation.
</p><p>
However, this does not seem to be the way that <b>RASHI</b> (DH Afilu Nishbarin) and the <b>ROSH</b> (5:3) explain the Gemara.
</p><p>
(b) According to Rashi, perhaps the Gemara means as follows. The Gemara originally assumed that the logic of the Tana of the Mishnah was that a person naturally accepts to prevent his object from damaging other objects in its proximity when both objects have permission to be there. Since this is assumed to be a universally accepted practice, the potter should also accept responsibility to protect his pots from damaging the animals of the Ba'al ha'Bayis. Rava answers that this is not the logic of the Mishnah at all, since the Tana of the Mishnah obligates the owner of the courtyard even for <i>external</i> forces that damage the pots. This is what the Tana means when he says that when the pots are brought in with permission, the Ba'al ha'Bayis is liable. Accordingly, it is obvious that this is not based on an unspoken assumption, since there is no reason to assume that a person takes full responsibility for the items of others just because they are in the vicinity of his items. It must be that the owner of the courtyard assumed responsibility verbally, by way of his explicit invitation that includes his acceptance to guard the objects that are brought in. Hence, there is no reason to assume that the owner of the pots took any responsibility at all for the animal of the Ba'al ha'Bayis, since he never made any verbal acceptance to do so.
</p><p>
According to this approach, the Gemara's words are clear. The Gemara means that the Mishnah holds the Ba'al ha'Bayis responsible not only for what <i>his</i> animals do to the pots, but for what <i>anything</i> does to the pots, because he verbally accepted to take care of the pots. On the other hand, there is no reason for the owner of the pots, who made no verbal statement, to be responsible for the possessions of the Ba'al ha'Bayis. (M. Kornfeld; the <b>TORAS CHAIM</b> writes a similar approach.)
</p><p>
Why does Rashi not explain the Gemara in the manner that Tosfos Rabeinu Peretz suggests? Perhaps Rashi bases his explanation on the Gemara later (48b) that teaches that if the two owners of two animals had permission to bring their animals into a certain place (for example, they jointly owned the property), then when one damaged the other without actively causing the damage (for example, both animals tripped on each other), both are exempt from paying for damages. According to Tosfos Rabeinu Peretz, the only reason for why the owner of the pots is exempt from damage caused to the animal of the Ba'al ha'Bayis is that the Ba'al ha'Bayis told him to enter, thereby absolving the potter from any responsibility. This reason does not apply in the case of a jointly-owned field, because neither owner needs to give permission to the other and tell him to bring in his ox; each one brings in his ox because he is a partner in the property. Rather, each owner should remain responsible for damages that his ox causes to the other!
</p><p>
According to Rashi's explanation, the Gemara's ruling is clear. Since neither one accepted responsibility verbally for the other one's animal, each is exempt for damages that he caused to the other.
</p><p>
Tosfos Rabeinu Peretz may follow his own opinion when he explains the Sugya there (48b) differently from Rashi. Tosfos Rabeinu Peretz and Tosfos there (DH Sheneihem) explain that the Gemara there refers to two people who both had permission to bring their animals into a third person's field. The Gemara does not refer to two partners who jointly own a field. The reason why the owners are both exempt from payment when their animals tripped over each other is that even if a person accepts -- without stating so explicitly -- to guard any object in the proximity of his own object, he guards the object only if he expects it to be there. If two people have permission to enter a third person's courtyard, neither of them assumes responsibility for the other because neither one has reason to be wary of which other people are permitted to enter the courtyard.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Shimon brought his ox into Reuven's yard without 
          permission, and Reuven's animals damaged it, he is 
          exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the ox damaged Reuven's animals, or fell into 
               a pit and dirtied the water, Shimon is liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven's father or son was inside the pit, 
               Shimon pays Kofer;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If Shimon had permission to bring his ox in, 
               Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Rebbi says, in all cases one is liable only if he 
          accepted responsibility for the other's property.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> Shimon is liable because he had no 
          permission. Had he had permission, he would be exempt 
          when Reuven's animals were damaged;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We do not say that Shimon accepted to guard 
               Reuven's animals. This is like Rebbi, who says that 
               Stam (without specifying), one does not accept 
               responsibility for another's animals.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (next clause of Mishnah):</font></b> If Shimon had 
          permission to bring his pots in, Reuven is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Chachamim, who say that Stam one 
               accepts responsibility to guard himself from 
               damaging another's property!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Mishnah concludes with Rebbi's opinion. Can 
               the Reisha and Seifa be like Rebbi, and the middle 
               is like Chachamim?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (R. Zeira):</font></b> Different Tana'im taught the 
          Mishnah. (The Tana of the middle clause holds that 
          Chachamim argue with Rebbi. The Tana of the Reisha and 
          Seifa holds that Chachamim agree with Rebbi.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> The entire Mishnah (until it mentions 
          Rebbi) is like Chachamim. When Reuven gives permission, 
          he accepts to guard Shimon's property even from falling 
          in the wind!
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>AN ANIMAL THAT WAS DAMAGED BY EATING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon brought his fruit into Reuven's 
          yard...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav):</font></b> Shimon is liable only for damage to Reuven's 
          animal if they slipped on the fruit. If they got sick 
          from eating the fruit, Shimon is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The animals should not have eaten them.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rav Sheshes - Beraisa):</font></b> If Levi put poison in 
          front of Yehudah's animal, he is exempt b'Yedei Adam 
          (Beis Din cannot make him pay), but liable b'Yedei 
          Shamayim (Hash-m holds him accountable).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> This refers only to poison, which 
               animals do not normally eat. If they ate fruit, 
               which is normal, even Beis Din forces him to pay!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Rav, he should be exempt, for the 
               animal should not have eaten!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Even regarding fruit, Beis Din cannot make 
          him pay;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah discusses poison to teach that even 
               though animals normally don't eat it, he is liable 
               b'Yedei Shamayim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The Mishnah discusses a poisonous fruit. 
          (Even though it is normal for animals to eat it, Beis Din 
          does not make him pay.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If a woman, without permission, 
          brought wheat into Reuven's premises to grind it and 
          Reuven's animal ate it, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven's animal was damaged, she is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Rav, we should say that Reuven's 
               animal should not have eaten!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Just like Rav explains that the Mishnah is when 
          the animal slipped on the fruit, also the Beraisa!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious! The one who asked, what did 
          he think?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah says 'Reuven's animal was damaged 
          ba'Hen (through them)', which can mean that it slipped on 
          them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa says only 'Reuven's animal was 
               damaged', which connotes that it ate them!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav holds that both can be explained to mean that 
               it slipped on them.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Shimon brought his ox into 
          Reuven's yard without permission, and it ate wheat, fell 
          sick and died, Reuven is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon had permission to bring his ox in, 
               Reuven is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Rav, we should say that Shimon's 
               animal should not have eaten!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> You cannot compare when there was 
          permission to when there was not!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who gives permission accepts responsibility, 
               even if the animal chokes itself!
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>DAMAGE IN THE PREMISES OF A THIRD PARTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> When one accepts responsibility, does he 
          accept only that his own property will not damage it, or 
          even that others' property will not damage it?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rav Yehudah bar Simon taught that if Shimon 
          brought his fruit into Reuven's yard without permission 
          and Levi's ox ate them, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon had permission to bring them in, he is 
               liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Who is exempt or liable?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Reuven is. (This shows that one 
                    accepts responsibility even that others' 
                    property will not damage it.)
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DAMAGE IN THE PREMISES OF A THIRD PARTY (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Why should Levi's liability depend on whether 
          or not Shimon had permission?!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> If Shimon had permission, it is as if the 
          damage was in the victim's premises, where Shen is 
          liable. If he had no permission, it is like Shen in a 
          Reshus ha'Rabim, which is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (to Question 5:a, 47b - Beraisa):</font></b> If Shimon 
          brought his ox into Reuven's yard without permission and 
          Levi's ox damaged it, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon had permission to bring them in, he is 
               liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Who is exempt or liable?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Reuven is.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, Levi is.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why should Levi's liability depend on whether 
          Shimon had permission or not?! (Here we discuss Keren, 
          which is liable even in Reshus ha'Rabim!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa is like R. Tarfon, who says that 
          Keren in the victim's premises pays full damage. If 
          Shimon had permission, it is as if the damage to be in 
          the victim's premises; without permission, it is like 
          Keren in a Reshus ha'Rabim, which pays half-damage. 
          ('Exempt' in the Beraisa means 'from paying full 
          damage.')
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>RESPONSIBILITY TO GUARD THE HOST'S ANIMALS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A case occurred in which a woman came to Reuven's house 
          to bake. Reuven's goat ate her dough, got sick and died. 
          Rava obligated her to pay.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rava argues with Rav (who says that the 
          animal should not have eaten).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Rav discusses one who enters without 
          permission. He does not accept responsibility to guard 
          (his host's animals) from being damaged;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, she entered with permission. She accepted 
               to guard Reuven's animals from damage.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this different than the woman who 
          entered Reuven's premises, without permission, to grind 
          wheat?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven's animal ate her wheat, he is exempt. 
               If his animal was damaged, she is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Inference):</font></b> Had she entered with permission, she 
               would be exempt!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Grinding does not require privacy, so Reuven is 
          responsible to guard his animals from eating her wheat;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Baking requires privacy (her arms become 
               exposed), so Reuven cannot be there. She is 
               responsible to guard his animals.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ENTERING WITHOUT PERMISSION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon brought his ox into Reuven's 
          yard...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Shimon brought his ox into Reuven's yard 
          without permission, and it dug pits in the yard, Shimon 
          pays for damage to the yard, Reuven is liable for things 
          that fall in the pit (if he makes his yard Hefker).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though one is liable 'when a man will dig a 
               pit', and not when an ox will dig a pit, here, 
               Reuven is liable because he should have filled them 
               in;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Since he did not fill them in, it is as if he dug 
               them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Shimon brought his ox into Reuven's yard 
          without permission, and it damaged Reuven, or Reuven was 
          damaged on it, Shimon is liable. If it Ravatz (crouched), 
          he is exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why does crouching exempt Shimon?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> Ravatz means that it Hirbitz Gelalim 
          (excreted), and Reuven's clothing was dirtied.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The excrement is like a pit. A pit is exempt for 
               Kelim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> This is like Shmuel, who says that all 
          obstacles are like a pit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav says that they are like a pit only if he 
               makes them Hefker. If not, they are as his ox. An ox 
               is liable for Kelim!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> We assume that people make excrement Hefker.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Shimon entered Reuven's yard without 
          permission and he damaged Reuven, or Reuven was damaged 
          through him, Shimon is liable. If Reuven damaged him, he 
          is exempt.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> This is only if Reuven did not know that 
          Shimon was there. If he knew, Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Granted, Reuven may tell Shimon to leave, but 
          he may not damage him.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	This is like Rava or Rav Papa said elsewhere.
<br>
<br>

sjt:
<font><b>1) THE DEFINITION OF 'HE DID NOT KNOW' IN THE CASE OF DAMAGES</b></font><b>
<br>OPINIONS:</b> Rava discusses a case in which a person entered someone's courtyard without permission and damaged the owner's property. Whether he caused damage deliberately or indirectly (for example, the owner tripped over him and was injured) he is obligated to pay. In contrast, if the owner damaged the trespasser, he is exempt from payment. Rav Papa qualifies this ruling with the condition that the owner is exempt only when he 'did not know' about the trespasser. If 'he knew' and damaged him, the owner is liable because the trespasser may say, 'Even though you have permission to evict me from your property, you have no permission to damage me.'
</p><p>
The Gemara points out that Rava and Rav Papa are consistent with their opinions expressed in another ruling (which is attributed to one of them; exactly who said it is the subject of dispute): When two people were in a place in which both had permission to be (for example, a public domain), or two people conducted themselves in a negligent way (for example, they were running in the public domain), if they damaged each other they are both liable. If, however, one was damaged by the other indirectly (for example, one stood still and the other tripped over him), they are exempt. The Gemara infers that when both are liable it is because both had the same status (both with permission or both without permission). If one had permission and the other did not have permission, the one who had permission is exempt and the one without permission is liable. <b>RASHI</b> (DH d'bi'Reshus) writes that the one with permission is exempt even if he damaged directly, as long as 'he did not know' about the one who did not have permission to be there. 
</p><p>
What does Rav Papa mean that 'he did not know' about the trespasser, and how does his lack of knowledge affect the Halachah?
</p><p>
(a) <b>RASHI</b> (48b, DH Hiziku) explains that in the cases in which two people with the same status damaged each other, they are liable even if the damage was done accidentally, as long as the damage was done directly (see also Rashi DH v'Hizik). Rashi (DH Chayavin) explains that this is because in matters of damage it makes no difference whether the damage was done deliberately or not. (See the Gemara earlier (26b) which says that a person who damages is liable for accidental damage just as he is liable for deliberate damage.) When the Mishnah earlier (32a) exempts two people who damaged each other in the public domain, Rashi asserts that the wording of the Mishnah is imprecise and it does not refer to when they damaged each other directly. Rather, Rashi explains that the Mishnah means that they 'were damaged by each other' indirectly (for example, one bumped into the other), because Rashi's position is that one who damages directly is always liable.
</p><p>
How does Rashi understand Rav Papa's statement that the owner is exempt for direct damage when 'he did not know' about the trespasser? The <b>LECHEM MISHNEH</b> (Hilchos Chovel u'Mazik 1:16) understands that according to Rashi, Rav Papa means that the owner did not even see the trespasser before he damaged him. In such a case, Rashi agrees that he is exempt even if the damage was direct, since he did not even know that the damagee was there. Tosfos earlier (27b, DH u'Shmuel) seems to support the logic of Rashi's statement. Tosfos states that although the Gemara (26b) teaches that a person who damaged is liable even when he was an 'Ones' (the damage he did was beyond his control), nevertheless if he was an 'Ones Gamur' (an absolute 'Ones') he bears no liability at all and is exempt. In the case of the Gemara here, Rashi understands that since the owner did not even know that someone was on his land, he is exempt from liability for any damage he caused to the trespasser. In contrast, if he knew someone was there, he is liable even if he damaged him unintentionally (and even if the damagee was there without permission), because he should have been more careful.
</p><p>

(b) However, the <b>RAMBAM</b> (Hilchos Chovel u'Mazik 1:16) understands the Gemara differently. He writes, 'One who damages his friend deliberately anywhere is liable for [the] five forms of payment. Even if a person entered his property without permission and the owner damaged him, the owner is liable because he is allowed to evict him but he is not allowed to damage him. However, if the person who entered was damaged indirectly by the owner, the owner is exempt. If the owner was indirectly damaged by the trespasser, the latter is liable because he entered without permission. If both were there with permission, or both were there without permission, and they were indirectly damaged by each other, they are both exempt.'
</p><p>
The <b>MAGID MISHNEH</b> and <b>LECHEM MISHNEH</b> explain that the Rambam understands Rav Papa's statement (that the owner is exempt only when 'he did not know') differently from Rashi. The Rambam understands that Rav Papa means that the owner did not deliberately damage him (but not that he did not see him). The owner is liable only when he deliberately damages the trespasser, and in such a case he is liable even if the latter had no right to be there. When the Gemara (48b) states that when they were both there with permission they are exempt, it refers to when they damaged indirectly.
</p><p>
The Lechem Mishneh points out that the advantage of the Rambam's explanation is that he does not need to say that the wording of the Mishnah (32a) is imprecise. Two people who were walking in the public domain who damaged each other are exempt because they damaged each other indirectly.
</p><p>
In contrast, the Rambam understands that the statement of Rava (48b) -- that when they damage each other they are liable even when both have permission to be there -- refers to a case in which they damaged deliberately.
</p><p>
The disadvantage of the Rambam's explanation is that it seems inconsistent with the Gemara earlier (26b) which teaches that a person who damages is liable even when he does so accidentally. The Magid Mishneh (Hilchos Chovel 6:3) notes that the <b>RA'AVAD</b> indeed disagrees with the Rambam because he understands the Gemara in the way that Rashi does. (D. Bloom)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava or Rav Papa):</font></b> If two people were both 
               acting in a permitted way or both in a forbidden way 
               and (actively) damaged each other, they are liable;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If they got hurt through each other, they are 
                    exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Inference):</font></b> This is because they were both the 
               same. If only one had permission, he is exempt and 
               the other is liable.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>FALLING IN A PIT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the ox fell into Reuven's pit and dirtied 
          the water...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> This is only when it dirtied the water when it 
          fell. If it dirtied it after it fell, he is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> After falling, the ox is (a stationary damager) 
          like a pit, and the water is like Kelim. A pit is exempt 
          for Kelim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> This is like Shmuel, who says that all 
          obstacles are like a pit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav says that they are like a pit only if he makes 
               them Hefker. If not, they are like his ox. Oxen are 
               liable for Kelim!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Retraction (Rava):</font></b> This is only when its body dirtied 
          the water. If it died in the pit and the rotting carcass 
          imparted a bad smell to the water, he is exempt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> This is mere Gerama (causing damage).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If his father or son was inside, he pays 
          Kofer.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Why does he pay Kofer? The ox is Tam (to kill 
          this way)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> The case it, it is Mu'ad to fall on 
          people in pits.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, it should have been stoned 
               already!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Yosef):</font></b> It saw food in the pit (i.e. 
               it did not intend to kill).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> The Mishnah is like R. Yosi 
          ha'Glili, who says that a Tam pays half-Kofer.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Ula):</font></b> R. Yosi ha'Glili holds like R. Tarfon, who says 
          that Keren pays full damage in the victim's premises. 
          Likewise, it pays full Kofer in the victim's premises.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> According to Ula, we understand why the 
          Mishnah discusses the father or son (so that it was the 
          victim's premises).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> According to Shmuel, why did it specify 
               the father or son?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> It gave a typical case.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>ACCEPTANCE OF RESPONSIBILITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he entered with permission...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav):</font></b> The Halachah follows the first Tana.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> The Halachah follows Rebbi.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Shimon told Reuven 'bring in your ox and 
          guard it', and if it damaged, Reuven is liable. If it was 
          damaged, Shimon is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'bring in your ox and I will guard 
               it', if it was damaged, Shimon is liable. If it 
               damaged, Reuven is exempt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Inference:</font></b> In the Reisha, only because he said 'guard 
          it', Reuven is liable (if it damages) and Shimon is 
          exempt (if it was damaged). Had he omitted this, Reuven 
          would be exempt, and Shimon would be liable, for he 
          accepts responsibility;
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> The Seifa implies that only because he said 
          'I will guard it', Shimon is liable (if it is damaged) 
          and Reuven is exempt (if it damages). Had he omitted 
          this, Reuven would be liable, and Shimon would be exempt, 
          for he does not accept responsibility. This is like 
          Rebbi!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Is the Reisha as Chachamim, and the end as 
               Rebbi?!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (R. Elazar):</font></b> Yes!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> The entire Beraisa is like Chachamim. 
          The inference from the Reisha is correct;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Seifa, the law is the same even if he did 
               not accept to guard it. For parallel structure, it 
               says that he accepted to guard it.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (Rav Papa):</font></b> The entire Beraisa is like Rebbi. 
          He holds like R. Tarfon, who says that Keren pays full 
          damage in the victim's premises. (The Seifa is only when 
          he accepts to guard it. The inference from the Reisha is 
          as follows.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he told him to guard it, he does not give him 
               jurisdiction over the area. If Reuven's ox damages 
               Shimon's property, it is like Keren in the victim's 
               premises, it pays full damage;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he did not tell him to guard it, he gives him 
               jurisdiction over the area, so it is like Keren in a 
               jointly owned domain. It pays half-damage.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>WHO PAYS FOR A FETUS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If an ox intended to gore an ox, and hit a 
          woman and made her miscarry, it does not pay for the 
          fetus;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven intended to kill a man, and he hit a woman 
          and made her miscarry, he pays for the fetus.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	To pay for the fetus, we evaluate how much the mother 
          was worth before giving birth and after giving birth;
<br>

sjt:
<p>
<font><b>2) THE OWNER'S LIABILITY WHEN HIS ANIMAL DAMAGES BY FALLING</b></font><b>
<br>QUESTIONS:</b> The Mishnah (47b) states that when a person brings his ox into someone else's courtyard without permission and it falls into the water pit and causes the water to become putrid, the owner of the ox must pay for the damage to the water. Rava (48b) qualifies the Mishnah's ruling. The owner is liable only if the ox makes the water putrid at the moment that it falls (direct damage; see <b>RASHI</b> DH she'Hivish) but not if the damage occurs later, after the animal has fallen.
</p><p>
The Mishnah continues and says that if the father or son of the owner of the courtyard was in the pit and the ox fell on him and killed him, the owner of the ox must pay Kofer. The Mishnah adds that if he had permission to bring his ox into the courtyard, the owner of the courtyard is liable.
</p><p>
The Gemara (48b) asks why must the owner of the animal pay Kofer; the animal is a Tam, and a Tam does not pay Kofer! The Gemara gives three answers to this question. Rav answers that the ox indeed was a Mu'ad to fall on people in pits (it had done so three times). The Gemara concludes that according to this answer, the ox fell in the pit because it saw grass next to the pit and came to eat it, and it accidentally fell into the pit (see Rashi DH Chaza). In such a case, where the ox killed without intention to kill, the owner must pay Kofer but the ox does not have to be put to death. Shmuel answers that the Mishnah follows the opinion of Rebbi Yosi ha'Glili who maintains that a Tam must pay half the value of Kofer. Ula answers that according to Rebbi Yosi even a Tam pays full Kofer if it killed someone in its own yard, and the Mishnah follows this opinion.
</p><p>
According to Shmuel and Ula, even if the ox fell into the pit b'Ones (beyond its control) the owner still should be liable for the damage it did. (In contrast, according to Rav's answer, the fall was not b'Ones because the animal deliberately approached the edge of the pit to eat the grass, and it should have been careful not to fall in.)
</p><p>
This ruling appears to contradict other rulings in Bava Kama, which imply that the owner is exempt when his animal falls b'Ones. The Mishnah (55b) states that if an animal fell into a garden and benefited from what it ate there, the owner must pay for the benefit that his animal derived. Rashi (DH Naflah) explains that the animal fell b'Ones from the owner's roof into the adjacent garden of a neighbor. Rashi (DH Mah she'Nehenis) explains that the owner pays for the benefit his animal derived but not for the damage that it did. This is because an owner does not have to pay for damage that his animal did b'Ones. (This is in contrast to damage done by a person b'Ones, for which one is liable; see 26b.)
</p><p>
Similarly, the Mishnah (21b) states that one's dog or goat jumped off the roof and broke someone else's utensils, the owner must pay for the damages in full. The Gemara there infers that he is liable only because the animal jumped. If the animal <i>fell</i>, the owner is exempt, because the damage was done b'Ones. It is clear from there that damaged caused by a falling animal is considered an Ones for which the owner is exempt. Why, then, is the owner liable in the case of the Mishnah here, where the ox fell into the pit b'Ones?
</p><p>
<b>ANSWER:</b> The <b>PNEI YEHOSHUA</b> answers that the owner is liable in the case of the Mishnah here because he brought his ox into his friend's yard without permission. This is considered a case of 'Techilaso b'Peshi'ah v'Sofo b'Ones,' where the damage that occurred b'Ones was a result of the owner's initial negligence, for which one is liable. Since the owner brought the ox into his friend's yard without permission, he is obligated to pay even though the damage occurred only b'Ones, when the animal fell. In the two other cases (21b and 55b), no negligence on the part of the owner lead to the Ones. (D. Bloom)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHO PAYS FOR A FETUS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Continuation of Mishnah - R. Shimon ben Gamliel):</font></b> This 
          cannot be. If so, she is worth more after birth!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we estimate how much the child is worth. 
               He gives this to her husband;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If she has no husband, it goes to his heirs.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If she was a freed slave or convert (and also her 
          husband was a freed slave or convert, and he had no 
          heirs) , there is no payment.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> The ox does not pay because it 
          intended for an ox. Had it intended for her, it would 
          pay. This refutes Rav Ada bar Ahavah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Ada bar Ahavah):</font></b> If an ox intended for a 
               woman, it does not pay for the fetus.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Even if it intended for her, it would 
          not pay;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah discusses intent regarding an ox for 
               parallel structure to the case of a man.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> If an ox gored a slave, and caused a 
          miscarriage, it pays for the fetus.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> She is (her master's property), just like a 
          pregnant donkey;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We read 'Im (with) the donkey' - Am (a nation) 
               that resembles a donkey.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE PAYMENTS FOR THE FETUS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> To pay for the fetus, we evaluate...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> It should not say the value of the fetus, 
          rather (Bach - the value of the fetus and) the added 
          value due to of the fetus!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Correct! The Mishnah asks, how do we evaluate 
          the value of and added value due to of the fetus? We 
          evaluate how much the mother was worth before giving 
          birth and after giving birth.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon ben Gamliel):</font></b> This cannot be. If 
          so, she is worth more after birth!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean? (Chachamim (the first 
          Tana) obligate paying the difference. Surely, they hold 
          that she is worth less after birth!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> A woman is not worth less after 
          birth, rather she is worth more (for she is no longer in 
          danger);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we estimate how much the child is worth. 
               He gives this to her husband;
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support (Beraisa #1):</font></b> A woman is not worth more before 
          birth. Rather, she is worth more after birth!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we estimate how much the child is worth. 
               He gives this to her husband;
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> R. Shimon ben Gamliel asks, does the 
          added value of a pregnant woman belong only to her 
          husband, and not to herself?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we estimate how much the child is worth. 
               He gives this to her husband;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Her added value The extra amount she is worth due 
               to the pregnancy is shared with her husband.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support (Beraisa #2 - R. Shimon ben Gamliel):</font></b> Does the 
          added value of a pregnant woman belong only to her 
          husband, and not to her herself?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we estimate the Nezek by itself, and the 
               pain by itself, and give these to her;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We evaluate the fetus. This goes to her husband;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Her added value The extra amount she is worth due 
               to the pregnancy is shared with her husband.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> R. Shimon ben Gamliel contradicts himself in 
          the two Beraisos!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The first Beraisa #1 discusses a woman giving 
          birth the first time (she is in great danger, she is 
          worth less before birth). The second Beraisa #2 
          discusses a woman who already gave birth.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Chachamim say that the husband also gets her 
          added value the extra amount she is worth due to the 
          pregnancy. What is their reason?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Beraisa) Question:</font></b> It says 'and she lost her 
          children.' Why must it say (that she was) 'pregnant'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> This teaches that her added value the 
               extra amount she is worth due to the pregnancy goes 
               to her husband.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> What does R. Shimon ben Gamliel learn from 
          'pregnant'?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> It teaches R. Eliezer ben Yakov's law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer ben Yakov):</font></b> He pays for the 
               fetus only if he hit her in the area of the fetus.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> This refers to anywhere where the 
               heat of the blow will reach the child (the torso), 
               i.e. excluding the legs and arms.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A CONVERT'S SHARE OF PAYMENT FOR THE FETUS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If she was a freed slave or a convert (and 
          also her husband was also a freed slave or convert, and 
          he had no heirs), Reuven does not pay.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rabah):</font></b> This is only if he hit her in her husband's 
          lifetime, and then her husband died;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> At the time he hit her, the payment belongs to 
               her husband. Once he dies, Reuven is exempted.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he hit her after her husband died, he must pay 
               her.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> Payment for the fetus is not something 
          that can be transferred!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Torah said that the husband gets it. If there 
               is no husband, it is not paid.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven hit a woman, making her 
          lose her fetus, he pays Nezek and pain to her, and 
          compensation for the fetus to her husband;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the husband is dead, his heirs receive his 
               share. If she died, her heirs receive her share.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If she was a freed slave or a convert, he 
               (Reuven) merits (to be exempt).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Just like we explained that the Mishnah is 
          when he hit her in her husband's lifetime, also the 
          Beraisa.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> He hit her even after her husband died. The 
          Beraisa means, whoever merits, collects (i.e. if she was 
          hit after her husband died, she collects).
<br>
<br>

sjt:
<font><b>1) THE DANGER OF CHILDBIRTH</b></font><b>
<br>QUESTION:</b> The Mishnah (48b) states that if a man intended to hit another man but instead accidentally struck a pregnant woman and caused her to miscarry, he must pay Demei Vlados, the monetary value of the embryo, to the father. The Mishnah explains how the Demei Vlados is assessed. According to the Tana Kama, the mother's value before and after birth is assessed (based on her value if she were to be sold as a maidservant in the marketplace), and the difference is the Demei Vlados. 
</p><p>
Raban Shimon ben Gamliel disagrees with this form of evaluation; he argues that a woman is worth more after childbirth than before childbirth. He rules instead that the value of the baby is assessed directly and that is what must be paid to the father.
</p><p>
<b>RASHI</b> (49a, DH v'Halo) explains that the reason why a woman is worth more after childbirth than before, according to Raban Shimon ben Gamliel, is that before she gives birth her life is at risk from the dangers of childbirth.
</p><p>
The Gemara asks that Raban Shimon ben Gamliel seems to contradict himself. A Beraisa quotes Raban Shimon ben Gamliel who says, 'Does the woman's Shevach (the increase in value of her body as a result of having a greater volume; Rashi DH v'Chi} go only to her husband and she receives no share in this? The Shevach should be split between the husband and wife.' Rashi (DH Kasha) points out that Raban Shimon ben Gamliel's ruling in this Beraisa clearly shows that he maintains that a woman is worth more <i>before</i> birth than after the birth. The Gemara answers that Raban Shimon ben Gamliel in the Beraisa refers to a woman's subsequent births, which pose a much smaller danger to her life than her first birth.
</p><p>
The Gemara implies that a woman's life considered in serious danger only at the time of her first birth. This assumption, however, seems to contradict the words of <b>TOSFOS</b> in Kesuvos. The Mishnah there (83a) states that when a man signs that he will not contest the rights of ownership to his wife's property, he nevertheless inherits her when she dies. His commitment not to contest ownership is valid only while she is alive; it gives her the rights to sell or give away her property without his consent. 
</p><p>
The Gemara there (83b) explains that the reason he why a man agrees not to contest ownership of his wife's property is that it is common that a man's wife dies in his lifetime, and it is not common that she sells her property. Therefore, when a man relinquishes certain rights to his wife's property, it is assumed that he gives up only his rights which result from an uncommon occurrence. It is not assumed that he waives his rights which result from a common occurrence.
</p><p>
Tosfos there (DH Misah) explains that it is considered common that a woman dies during her husband's lifetime because of the many incidents in which a woman dies during childbirth.
</p><p>
Tosfos implies that for all births, and not just for the first, a woman is in danger. How are the words of Tosfos there to be reconciled with the Gemara here which assumes that only the first birth is considered significantly dangerous?
</p><p>
<b>ANSWERS:</b> 
<br>(a) The <b>TIFERES YISRAEL</b> (Boaz #2) points out that this question appears to be difficult not only according to Raban Shimon, but also according to the Tana Kama. The Tana Kama states that Demei Vlados is always assessed by determining the difference between the woman's value before and after birth. The Tana Kama apparently maintains that even during her first pregnancy, a woman's value is greater before birth than after birth. This implies that she is not in significant danger even at her first birth, a contradiction to the assertion of Tosfos in Kesuvos.
</p><p>
The Tiferes Yisrael answers that everyone agrees that the value of the woman herself is less before birth than after, because she is in danger. However, when the value of a pregnant woman is assessed, not only is her value assessed but the embryo's value is also assessed. Although a person who purchases a pregnant maidservant takes a risk with his investment because she might die in childbirth, he has an upside risk as well: if she survives the birth, he will own both her and the baby. Therefore, he is willing to pay more for a pregnant maidservant than for one who is not pregnant. The potential gain of owning two servants overrides the risk that one or both might die during childbirth.
</p><p>
In contrast, Raban Shimon maintains that since the risk of danger at the first birth is greater than any other birth and the chances of losing both the mother and the baby are significant, a purchaser does not the risk of buying the mother. The risk of the potential loss overrides the potential gain of both a mother and a child.
</p><p>
(b) Another solution may be suggested based on the words of the <b>TOSFOS SHANTZ</b> in Kesuvos (83b). The Tosfos Shantz states that the reason why it is common that a wife dies before her husband is that 'oftentimes she is in danger through birth.' The Tosfos Shantz does not say that in the majority of births she is danger, but rather that she is often in danger.
</p><p>
It is possible that Tosfos also means that she is often in danger, but only in the majority of cases. Therefore, although there is a significant danger of dying in childbirth, nevertheless this risk is not great enough to lower her market value before birth to less than her value after birth. (D. Bloom)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue as Rabah and Rav Chisda do.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> If a Bas Yisrael married a convert 
               and became pregnant through him, and Reuven hit her 
               (in her husband's lifetime, making her miscarry), he 
               pays her husband;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he hit her after her husband died, he is 
               liable.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> He is exempt.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> Indeed, Rabah holds like Beraisa #1. He 
          must admit that Beraisa #2 is like Rav Chisda.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, Rav Chisda can say that both Tana'im are 
               like him. Beraisa #2 is like Chachamim. Beraisa #1 
               is like R. Shimon ben Gamliel (who says that she 
               gets a share of her increased value).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If Beraisa #1 is like R. Shimon ben 
               Gamliel, why does it say that the husband died?, 
               Even if he is alive, she gets a share!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> In his life, she only gets half. After he 
               dies, she gets her entire increased value.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Alternatively, Rav Chisda can say that 
          both Beraisos are like R. Shimon ben Gamliel. Beraisa #2 
          discusses payment for the fetus. Beraisa #1 discusses 
          payment for her increased value.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> We should learn from her increased added 
          value to payment for the fetus (just like she merits his 
          share of her added increased value when he dies, also 
          payment for the fetus),; and from R. Shimon ben Gamliel 
          to Chachamim (that she merits what was due to her husband 
          when he dies)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> No. She is party to her added increased value, 
          so when he dies, she merits his share of it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> She has no share of payment for the fetus. When 
               he dies, she does not merit what was due to him.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>PROPERTY OF A CONVERT WHO DIED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Yeiva Sava):</font></b> If Reuven grabbed the 
          documents of a convert who died (without heirs), what is 
          the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Did he grab them intending to acquire the land?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The land can be acquired only through Chazakah. 
                    He did not do this, so he gets neither the land 
                    nor the document;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, did he intend also for the parchment (and he 
               acquires it)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> Does he need a worthless document to use 
          for a bottle-cork?!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rav Yeiva:</font></b> Yes! (I ask about this.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If a convert (Yisro) had a security from 
          Reuven, and Yisro died, and Shimon grabbed the security, 
          he must give it to Reuven.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> When Yisro died, his lien on the security 
          ended. 
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If Reuven had a security from a convert (Yisro), and 
          Yisro died and Shimon grabbed the security, Reuven 
          collects the amount of his loan, and Shimon keeps the 
          rest.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Reuven's premises should acquire the entire 
          security for him!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> A person's yard acquires 
               for him without his knowledge.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, Reuven is not in the city.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (This answer holds  that) whenever Reuven can 
               acquire things, his yard can acquire for him; 
               whenever Reuven cannot acquire (e.g. he is not 
               here), his yard cannot acquire for him.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The case is, the security is not in Reuven's 
          yard. (If it were in his yard, he would acquire even if 
          he were not there.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	The Halachah follows this answer.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>A PIT IN TWO DOMAINS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One is liable for digging a pit in the 
          following cases: it (the pit) is in a Reshus ha'Yachid, 
          and its opening is in a Reshus ha'Rabim; it is in a 
          Reshus ha'Rabim, and its opening is in a Reshus 
          ha'Yachid, it and its opening are in each in a different 
          Reshus ha'Yachid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Beraisa - R. Yishmael):</font></b> The Torah discusses 
          (and obligates for) a pit in a Reshus ha'Yachid, its 
          opening is in the Reshus ha'Rabim. (We call this a pit in 
          the Reshus ha'Rabim);
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Akiva says, it is when he made his property Hefker, 
          but not his pit (we call this a pit in the Reshus 
          ha'Rabim).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rabah):</font></b> All agree that one is liable for a pit in a 
          Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer - Question:</font></b> 'If a man will open...or dig a pit' 
          - if he is liable for opening it, all the more so for 
          digging it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, this teaches that he is liable 
               for digging alone (i.e. the pit is not his, it is in 
               the Reshus ha'Rabim).
<br>

sjt:
<p>
<font><b>2) ONE WHO KNEW THAT SOMEONE ELSE DUG A DANGEROUS PIT IN HIS YARD</b></font><b>
<br>QUESTION:</b> The Mishnah mentions three different cases in which one is liable for the damage caused by his Bor: one digs a Bor in Reshus ha'Yachid and its opening is in Reshus ha'Rabim, one digs a Bor in Reshus ha'Rabim and its opening is in Reshus ha'Yachid, and one digs a Bor in Reshus ha'Yachid and its opening is in a different Reshus ha'Yachid.
</p><p>
<b>RASHI</b> (DH Chayav) explains that in the third case, the digger of the Bor is liable only if he declared as ownerless the domain into which the Bor opened. (Rashi (DH b'Reshus ha'Rabim) explains that if he did not make his domain ownerless, he is exempt because he may argue that the object that fell into his Bor had no right to be in his domain.)
</p><p>
<b>TOSFOS</b> (DH b'Reshus ha'Yachid) infers from the words of Rashi that Rashi does not mean that the opening of the Bor was in someone else's Reshus ha'Yachid, but that both domains belonged to the same person. Tosfos quotes the <b><b><b>RI</b></b></b> who explains the third case differently. The person dug a Bor in his own Reshus ha'Yachid and dug its opening in the Reshus ha'Yachid of his neighbor. Although the opening is open only to Reshus ha'Yachid where few people walk, nevertheless if someone is damaged by the Bor there, the one who dug the Bor is liable.
</p><p>
Tosfos questions the Ri's explanation. Why is the one who dug the Bor liable for what fell into it when it is no longer in his yard? Since he is obligated to pay his neighbor for the damage he did to him by opening a Bor in his yard, the responsibility to fill in or cover the Bor should now rest on his neighbor. If the neighbor does not fill in or cover the Bor, the neighbor should be liable for any damage that it causes. The Gemara (48a) teaches that one who is required to fill in a Bor but fails to do so is liable; his failure to fill in or cover the Bor is considered equivalent to digging it himself. Why, then, does the Ri state that the person whose domain contains the opening of the Bor is not obligated to pay for the damages? 
</p><p>
<b>ANSWERS:</b> 
<br>(a) The <b>NIMUKEI YOSEF</b> (21b of the pages of the Rif) writs that the Mishnah refers specifically to a case in which someone was damaged by the Bor before the person whose domain in which it was dug knew that it was there. If he knew about it before it damaged, he is responsible for any damage that it subsequently caused because he was obligated to fill it in and failed to do so. This answer is also given by the <b>SHITAH MEKUBETZES</b> in the name of the <b>ROSH</b>, and by the <b>TUR</b> (CM 410:3). 
</p><p>
(b) The <b>IMREI MOSHE</b> (29:8) points out that there is a significant difference between the case of Tosfos and the case of the Gemara (48a). The Gemara discusses a case in which one brought his ox into his friend's yard without permission, and the ox subsequently dug holes in the yard. The Gemara says that the owner of the ox must pay for the damage done to the yard, but the owner of the yard must pay for the damage done by the holes, since he should have filled them in. The Imrei Moshe points out that the animals that were damaged by falling into the holes entered the yard without permission. The person whose ox dug the holes is exempt because he is not considered to have damaged the animals; the animals that were damaged should not have been there anyway. However, the owner of the yard is obligated to pay if he was Mafkir the Bor. 
</p><p>
In contrast, in the case of the Mishnah, the person opened the Bor into the yard of his neighbor, and the animals of his neighbor were damaged in the Bor. The Ri maintains that the person who dug the Bor is liable because he had no right to dig there, while the owner of the yard certainly has the right to let his own animals roam in his yard. (D. Bloom)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A PIT IN TWO DOMAINS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah):</font></b> They argue about a pit in a man's property'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Akiva obligates - 'the owner of the pit' shows 
               that the pit has an owner;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yishmael says, he is called the owner because 
               he is liable for it (but really, it is in the Reshus 
               ha'Rabim, and no one owns it).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If so (R. Akiva obligates for pits in Reshus 
          ha'Rabim and Reshus ha'Yachid), why did he say 'this is 
          the pit mentioned in the Torah'?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> This is the first pit the Torah mentioned 
          regarding payments.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> All agree that one is liable for a pit in 
          a Reshus ha'Yachid - 'the owner of the pit' shows that 
          the pit has an owner. They argue about a pit in a Reshus 
          ha'Rabim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yishmael obligates. It says 'if a man will 
               open... or dig a pit' - if he is liable for opening 
               it, all the more so for digging it!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rather, this teaches that he is liable for 
                    digging alone (even if it is not his).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva exempts. Both verses are needed;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had the Torah discussed only opening a pit, one 
                    might have thought that only in this case he is 
                    exempt if he covers it, but one who digs a pit 
                    is liable even if he covers it;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Had the Torah discussed only digging a pit, 
                    one might have thought that only in this case 
                    he must cover it, for he did a (major) action, 
                    but one who opens a pit need not cover it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so (R. Yishmael obligates for pits in 
          Reshus ha'Rabim and Reshus ha'Yachid), why did he say 
          'this is the pit mentioned in the Torah'?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> This is the first pit the Torah mentioned 
          regarding damage.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven dug a pit in the Reshus 
          ha'Rabim, and its opening is in the Reshus ha'Yachid, he 
          is exempt, even though it is forbidden to make holes 
          under the Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he dug a pit in a Reshus ha'Yachid and its 
               opening is in the Reshus ha'Rabim, he is liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he dug a pit in a Reshus ha'Yachid adjacent to 
               the Reshus ha'Rabim, such as those who dig 
               foundations, he is exempt;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yosi b'Rebbi Yehudah says, he is liable unless 
                    he makes a 10 Tefachim wall or distances four 
                    Tefachim from where people and animals walk.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> He is exempt because this was for a 
               foundation. Otherwise, he would be liable!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Who is the Tana of the Beraisa?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1:</font></b> According to Rabah, the Reisha is like 
               R. Yishmael, the end is like R. Akiva;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  However, according to Rav Yosef, the Seifa is 
                    like both Tana'im, but the Reisha is like 
                    neither!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (and Answer #2 to Question j:4):</font></b> Rav Yosef 
          explains that the entire Beraisa is like both Tana'im;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Reisha, he was not Mafkir his premises nor 
               his pit.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (to Question j:4 - Rav Ashi):</font></b> Also Rabah can 
          establish the Beraisa like one Tana, i.e. R. Yishmael;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is exempt because this was for a foundation. 
               Otherwise, he would be liable. The case is, it 
               extends into the Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven dug a pit in a Reshus 
          ha'Yachid and its opening is in the Reshus ha'Rabim, he 
          is liable. If he dug a pit in a Reshus ha'Yachid adjacent 
          to the Reshus ha'Rabim, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is not difficult for Rabah. The entire 
               Beraisa is like R. Yishmael.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Rav Yosef, the Reisha is like R. 
               Yishmael, and the Seifa is like neither Tana!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> (Rav Yosef explains), it is like both Tana'im. 
          It was dug for a foundation.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DAMAGING THE RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven dug and opened a pit and gave it 
          to the public, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he dug and opened a pit and did not give it to 
               the public, he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Nechunya the pit-digger used to dig and open pits 
               and give them to the public; Chachamim praised him 
               for his actions.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> The daughter of Nechunya the pit-digger fell 
          into a great pit. They told R. Chanina ben Dosa. The 
          first two hours, he said that all is fine. The third 
          hour, he said that she is out and safe.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> She said that a ram being led by an elder saved 
               her.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rabanan (to R. Chanina):</font></b> Are you a prophet?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Chanina:</font></b> I am not even training for prophecy. 
               I just knew that since Nechunya toiled so hard to 
               give pits to the public, Hash-m would not allow his 
               child to die through a pit.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(R. Acha):</font></b> Still, Nechunya's son died of thirst - 
          'u'Svivav Nis'arah Me'od' teaches that Hash-m is exacting 
          with those close to Him like the breadth of a Sa'arah 
          (hair).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. (Nechunya):</font></b> We learn this from 'He is awesome over 
          all those around Him' (they fear His exacting judgment).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Chanina):</font></b> If one says that Hash-m overlooks 
          (transgressions for which there was no Teshuvah), his 
          life will be overlooked (he will be prone to calamity, 
          for he induces others to sin) - 'Hashem's actions are 
          pure, all His ways are judgment.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Chana):</font></b> 'Long to <i>angers</i>' is written plural. 
          Hash-m is patient with Tzadikim (not to pay their reward 
          immediately) and Resha'im (not to punish them 
          immediately).
<br>
<br>

sjt:
<font><b>1) HASH-M EXACTS JUSTICE FROM THE RIGHTEOUS</b></font><b>
<br>QUESTION:</b> The Gemara relates that the daughter of Nechunya 'Chofer Shichin' (the digger of water wells) fell into a deep water cistern. News of the tragedy was brought to Rebbi Chanina ben Dosa. After the first hour, he said, 'Shalom.' After the second hour, he said, 'Shalom.' After the third hour, he said, 'She has arisen [from the pit].' When the people asked him whether he is a prophet, he replied that he is not a prophet, but that he knew that Nechunya's daughter would emerge unharmed because it is not possible that 'the matter in which the Tzadik excels should cause his offspring to suffer.' The Gemara adds that despite this axiom, Nechunya's son died of thirst. Even though Nechunya dedicated his life to providing water to the people who came to Yerushalayim during the festivals (Rashi), his son died of thirst because Hash-m is 'exact in justice with those who are close to Him.' When a person has perfected himself in an area of Avodas Hash-m, Hash-m demands from him more exacting standards.
</p><p>
If Hash-m does not punish a Tzadik with the same thing in which he excels in his service of Hash-m, as Rebbi Chanina ben Dosa expressed and as the first incident demonstrates, why did Hash-m allow Nechunya's son to die of thirst?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> here and in Yevamos (121b) explains that the death of Nechunya's son by thirst is not considered a form of justice with the same matter with which Nechunya excelled. His son suffered from a <i>lack</i> of water, while Nechunya excelled in <i>providing</i> water. In contrast, if his daughter would have died by drowning in a water cistern, that decree would have been carried out with the same action in which Nechunya excelled -- the provision of water. Hash-m does not punish a person in such a way.
</p><p>
Alternatively, although Nechunya dug wells, he did not provide the water to fill them. The water came naturally through rainfall. Consequently, it was possible for his son to die from a lack of <i>water</i>, while it was not possible for his daughter to die in the pit of a <i>well</i>. (This is the explanation of <b>RASHI</b> here (DH Chofer Shichin), according to the understanding of the <b>ETZ YOSEF</b>. This explanation does not conform with the Yerushalmi's description that 'he honored his Creator <i>with water</i>.')
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> here suggests that there is no such rule that Hash-m does not exact justice from a person with the object of the Mitzvah in which he excels. Hash-m has His own considerations based on His infinite wisdom which mortals cannot comprehend.
</p><p>
When Rebbi Chanina ben Dosa said that it is not possible that 'the matter in which the Tzadik excels should cause his offspring to suffer,' he was not explaining why Nechunya's daughter suffered no harm, but rather he was describing his <i>prayer</i> to Hash-m on behalf of Nechunya's daughter.
</p><p>
(c) The <b>MISHNAS ELIYAHU</b> explains that the axiom that Hash-m does not permit harm to befall a person from the object of the Mitzvah in which he excels applies only to a person who performs the Mitzvah entirely l'Shem Shamayim, for the sake of Hash-m, with no other motives. No harm befell Nechunya's daughter when she fell into the water cistern because Nechunya's motivation for providing water for the visitors to Yerushalayim was purely l'Shem Shamayim. Perhaps, however, at a later time the purity of his motivation was compromised in a small way and he did not do the Mitzvah solely for the sake of Hash-m. As a result, Hash-m was 'Medakdek k'Chut ha'Se'arah' with the righteous, and Nechunya's son died of thirst. (See also Insights to Shekalim 14:1 and Yevamos 121:2.)
</p><p>


<font><b>2) AGADAH: THE DAUGHTER OF NECHUNYA, THE WELL-DIGGER </b></font><b>
<br>QUESTION:</b> The Gemara relates that the daughter of Nechunya 'Chofer Shichin' (the digger of water wells) fell into a deep water cistern. News of the tragedy was brought to Rebbi Chanina ben Dosa. After the first hour, he said, 'Shalom.' After the second hour, he said, 'Shalom.' After the third hour, he said, 'She has arisen [from the pit].'
</p><p>
People asked the daughter of Nechunya, 'Who rescued you from the pit?' She replied that a ram being led by an elderly man saved her. Rashi explains that this was the ram of Yitzchak being led by Avraham Avinu.
</p><p>
When the people asked Rebbi Chanina whether he is a prophet, he replied that he is not a prophet, but that he knew that Nechunya's daughter would emerge unharmed because it is not possible that 'the matter in which the Tzadik excels should cause his offspring to suffer.' 
</p><p>
What is the significance of the ram which Nechunya's daughter saw?
</p><p>
<b>ANSWER:</b> The <b>PNEI YEHOSHUA</b> explains the significance of the ram of Yitzchak which saved Nechunya's daughter. The fact that she fell into a pit indicated that there was a Divine decree that the daughter of Nechunya must die. The prayer of Rebbi Chanina was effective to suspend the decree. However, there is a principle that once a decree is issue, it cannot be annulled. The ram of Yitzchak hinted that someone else was taken instead of Nechunya's daughter, in the same way that the ram was offered instead of Yitzchak Avinu.
</p><p>
The Pnei Yehoshua cites other examples of this principle. The Gemara in Chagigah (4b) relates that the Malach ha'Maves told Rav Bibi that he once killed the wrong woman. Rav Bibi asked him, 'What did you did with the years that she was supposed to live?' The Malach ha'Maves answered that those years were given to young Torah scholars who were forgiving of those who slighted them.
</p><p>
The Pnei Yehoshua adds in the name of the Zohar that this redirecting of a Divine decree is the source for the custom of Kaparos on Erev Yom Kippur (see <b>REMA</b> OC 605:1, and <b>MAGEN AVRAHAM</b> there). The slaughter of the chicken is designated as an atonement for the person if there was a decree issued that he should die.
</p><p>
The Pnei Yehoshua also explains that this is the reason why the people asked Rebbi Chanina if he was a prophet only after Nechunya's daughter revealed what had happened. When the people heard about the ram, they realized that there indeed had been a decree that Nechunya's daughter should die, and that she was saved from the decree only because someone or something else took her place.
</p><p>
Once the people knew that there had been a Divine decree, they asked Rebbi Chanina why he was so certain that his prayer to annul the decree would be accepted. Rebbi Chanina replied that since Nechunya had done the Mitzvah of digging wells for the people who ascended to Yerushalayim at the time of the festival, he was certain that Hash-m would not have allowed Nechunya's own daughter to drown in a well. (D. Bloom)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> One may not clear his rocks into the Reshus 
          ha'Rabim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A case occurred in which a man did so. A Tzadik 
               rebuked him 'why are you clearing rocks from a 
               domain which is not yours, into your domain?' The 
               man scoffed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Later, the man needed to sell his property. He 
               was walking in the same Reshus ha'Rabim, and 
               stumbled on the rocks. He realized the truth of the 
               Tzadik's words.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT DAMAGE OF A PIT IS ONE LIABLE FOR?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven dug a pit in the Reshus ha'Rabim, 
          and an animal fell in, he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The law is the same for a circular pit, a long 
               and thin pit, a covered cave, or a pit that is wider 
               at top than at bottom.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Torah discusses a (standard) pit to teach 
               that just like a pit is 10 Tefachim deep, which can 
               kill, in all cases one is liable for 10 Tefachim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If an animal falls in a pit less than 10 
               Tefachim, if it dies, he is exempt. If it is hurt, 
               he is liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rav):</font></b> One who digs a pit is liable for damage 
          caused by the Hevel (hot, stagnant air) of the pit, not 
          for the blow when the animal lands.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because the animal lands on the bottom of 
               the pit, which is not his (it is of Reshus 
               ha'Rabim).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> He is liable for damage caused by the Hevel, 
          and all the more so for the blow when it lands.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he is liable only for the 
               blow!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> The Torah obligated one for (any) pit, 
               even if the bottom is covered with tufts of wool, 
               and there is no blow.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about one who built a mound in a 
          Reshus ha'Rabim (and an animal fell off the top);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since there is no problem with the air, Rav 
               exempts and Shmuel obligates.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is Rav's reason?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> 'And will fall' - it must fall normally 
          (headfirst, for then the Hevel harms it).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shmuel explains, the verse includes all ways of 
               falling.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> The Torah discusses a (standard) 
          pit to teach that just like a pit is 10 Tefachim deep, 
          which can kill, in all cases one is liable for 10 
          Tefachim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is not difficult according to Shmuel. 'All 
               cases' includes one who builds a mound in a Reshus 
               ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But according to Rav, what does it include?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> It includes pits that are circular or long and 
          thin (or caves...)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah already listed these!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah first listed them, then explained 
          from where we learn them.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Why did it need to list all of them?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Had it taught only a standard pit, one might 
          have thought that only a 10 Tefachim pit of small area 
          has Hevel, but not a long and thin pit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it taught only a long and thin pit, one might 
               have thought that this has Hevel when it is 10 
               Tefachim deep, but a cave does not;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it taught only a cave, one might have thought 
               that this has Hevel when it is 10 Tefachim deep 
               because it is covered, but a circular pit does not;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Had it taught only a circular pit, one might have 
               thought that a 10 Tefachim pit that is wider at top 
               than at bottom does not have Hevel. The Mishnah 
               teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If an animal falls in a pit less 
          than 10 Tefachim, if it dies he is exempt. If it is hurt, 
          he is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> A pit less than 10 is exempt for 
               killing, because the blow cannot kill (even though 
               the Hevel can kill)!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> No, it is exempt because it does not have 
          Hevel.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why is one liable if the animal was 
          hurt?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> It does not have Hevel that can kill, but it 
          has Hevel that can damage.
<br> <b>    <b><font color='darkgreen'>(r)</font></b></b>  	A case occurred in which Reuven's ox fell into an 
          irrigation ditch. he slaughtered it. Rav Nachman ruled 
          that it is Tereifah (like an animal that fell from the 
          roof. Perhaps its bones were crushed).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Had Reuven invested a bit of flour 
               (to eat and enable him) to learn in the Beis 
               Medrash, he would have known that if one waits 24 
               hours before slaughtering, the animal is Kosher, and 
               saved himself many times the value of the flour!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Inference:</font></b> Rav Nachman holds that even less than 10 
          Tefachim, the blow of a fall can kill.
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Question (Rava - Mishnah):</font></b> If an animal fell in a pit 
          less than 10 Tefachim and died, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is exempt because the blow cannot 
               kill!
<br>

sjt:
<p>
<font><b>2) THE DAMAGE CAUSED BY A PIT: THE BAD AIR OR THE BLOW?</b></font><b>
<br>QUESTION:</b> The Gemara cites a dispute between Rav and Shmuel. Rav maintains that when the Torah obligates a person to pay for damage caused by his Bor, it refers to the damage the Hevel (bad air) does to the thing that fell in, but not to the damage caused by the Chavatah (the blow the object received upon impact with the bottom of the Bor). Shmuel maintains that one is liable for both the damage caused by the Hevel and the damage caused by the Chavatah.
</p><p>
The Mishnah states that when an ox or donkey falls into a Bor less than ten Tefachim deep and dies, the owner of the Bor is exempt from liability because a Bor less than ten Tefachim deep is not capable of killing. However, if the animal did not die but was merely damaged, the owner must pay for the damage. The Gemara suggests that the reason why he is exempt if the animal dies is that the Chavatah of such a small Bor cannot kill. The Gemara rejects this proof and explains that the reason why he is exempt is that a Bor less than ten Tefachim deep does not have Hevel.
</p><p>
What is the Gemara's attempted proof? Is it an attempt to prove the opinion of Rav or the opinion of Shmuel?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH Lav) explains that the Gemara is asking a question on both Rav and Shmuel. The Gemara understands at this stage that although a Bor less than ten Tefachim deep indeed contains bad air, the owner is exempt because under ten Tefachim the Chavatah is not powerful enough to kill. Rav and Shmuel agree that one is liable for Hevel. Accordingly, the Mishnah is a challenge to both of them, as the Mishnah implies that a person is not liable to pay for damages caused by the Hevel in his Bor. The Gemara answers that a Bor less than ten Tefachim does not contain enough Hevel to kill, and that is why the owner is not liable.
</p><p>
The <b>PNEI YEHOSHUA</b> notes that the Gemara could have answered, according to Shmuel, that the Mishnah refers to a Bor that does not contain Hevel. An example of such a Bor is one whose width is greater than its depth, as the Gemara later (51b) discusses. If a Bor is ten Tefachim or more deep, the owner is liable because of the Chavatah. This implies that the Gemara's question is directed solely at Rav's opinion. However, Rashi understands from the fact that the Gemara does not specify whose position is being questioned that the Gemara is challenging <i>both</i> opinions. The Gemara asks its question on both opinions because it does not want to assume that the Mishnah refers specifically to a Bor whose width is greater than its depth.
</p><p>
The Pnei Yehoshua explains Rashi's next comment (DH Lo) as well. Rashi writes that when the Gemara answers that the Bor under ten Tefachim deep does not contain Hevel, it means that it certainly does not contain the ability to kill with Chavatah. The Pnei Yehoshua explains that, consequently, the Mishnah -- which exempts one from liability in the case of a Bor under ten Tefachim -- is not a challenge to Shmuel who maintains that the owner is liable only for Chavatah of more than ten Tefachim.
</p><p>
(b) The <b>RASHBA</b> suggests that the Gemara's question is directed only at Rav's opinion. The Rashba cites <b>RABEINU CHANANEL</b> (see also Tosfos to 51a, DH Amri) who explains that when the Gemara originally suggests that the owner of a Bor of less than ten Tefachim is exempt when the Bor kills because there is not sufficient Chavatah to kill, the Gemara knows that the Bor has sufficient Chavatah to <i>damage</i>. However, at this stage the Gemara assumes that a Bor under ten Tefachim possesses no damaging <i>Hevel</i> at all. (This approach differs from that of Rashi (DH Lav), who says that a Bor under ten Tefachim also possesses Hevel.)
</p><p>
According to this approach, the Gemara's question was directed only at Rav. The Gemara originally assumes that in a Bor of less than ten Tefachim there is not sufficient Hevel even to damage. Consequently, when the Mishnah states that the owner is liable for damage, but not for death, caused by his Bor of less than ten Tefachim, it must be because the Torah states that one is liable for the Chavatah of his Bor, and not for Hevel. The Gemara concludes that the same distinction applies also for Hevel; in a Bor of less than ten Tefachim there is not enough Hevel to kill but there is enough to damage. Hence, the Mishnah does not contradict Rav. (See also <b>TOSFOS RABEINU PERETZ</b>.) (D. Bloom)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A PIT LESS THAN 10 TEFACHIM DEEP</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> No, he is exempt because it does 
          not have Hevel. (Only the blow can kill. Rav Nachman 
          holds like Rav, who exempts for the blow.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why is one liable if the animal was 
          hurt?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The Hevel cannot kill, but it can damage.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> The scaffold for people sentenced 
          to stoning was twice a person's height. (They were pushed 
          off the scaffold, and stoned if they did not die from the 
          fall.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Including his own height, the person 
               would fall three times his height.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Summation of question):</font></b> If the blow of a fall 
               even less than 10 Tefachim can kill, why did the 
               scaffold need to be so high?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Counter-question:</font></b> Even if you hold that only the 
               blow of a fall from 10 Tefachim can kill, the 
               scaffold could have been 10 Tefachim!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (to both questions):</font></b> Rav Nachman taught 'you 
          will love your neighbor as yourself' - choose a nice 
          execution for him (so he will die quickly).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, the scaffold should be even higher!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> That would be disgraceful, for his limbs would 
          break off.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> One must build a Ma'akah (wall) 
          around his roof, lest 'one will fall from it (the roof)', 
          but not (if the concern is lest one fall) into the roof.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When the roof is 10 Tefachim below street level, 
               the concern is lest one fall onto the roof. It is 
               exempt from a Ma'akah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> When the roof is 10 Tefachim above street level, 
               the concern is lest one fall from the roof. It must 
               have a Ma'akah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Summation of question):</font></b> If the blow of a fall 
               even less than 10 Tefachim can kill, even less than 
               10 Tefachim should require a Ma'akah!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> A house less than 10 Tefachim tall is not 
          considered a house, so the Torah did not obligate it to 
          have a Ma'akah (even though one could die from falling 
          from the roof).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If so, even when the roof is exactly 10 
          Tefachim above the street, the house is not considered a 
          house, for the interior is less than 10 Tefachim (the 
          roof has thickness)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the floor of the house was dug 
          out, so the roof is 10 Tefachim above the floor.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> If so, even if the roof is less than 10 
          Tefachim above the street, it should require a Ma'akah 
          when the floor was dug out, making the roof 10 Tefachim 
          above the floor!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, Rav Nachman admits that only a blow 
          from a fall of 10 Tefachim can kill;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He ruled that the ox that fell from the 
               irrigation ditch (which is normally six Tefachim) 
               was Tereifah, because the ox' stomach starts four 
               Tefachim above the ground, so it fell 10 Tefachim.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah says that 10 Tefachim are needed 
          to kill. We should say that six Tefachim suffice!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> We require 10 for an animal that was lying on 
          the ground and rolled into the pit. (R. Efrayim - we 
          always requires 10 from the stomach to the bottom. 
          Normally, it was lying, so the pit itself must be 10. 
          Rashba - the Torah obligates only for a pit of 10 that 
          can kill in any case, even if it was lying.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A PIT OF PARTNERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven and Shimon were partners in a pit, 
          and Reuven passed and did not cover it, and Shimon passed 
          by and did not cover it, Shimon is liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is the case of a pit of 
          partners?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is not difficult for R. Akiva, who obligates 
               for a pit in one's premises. They are partners in a 
               pit in their joint yard, and they made the yard 
               Hefker but not the pit.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to the opinion that exempts for a pit 
               in one's premises, what is the case?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The pit is in a Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of a joint pit in a Reshus 
          ha'Rabim?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they asked Levi to dig it, one cannot be a 
               Shali'ach for a transgression (Levi alone is 
               liable)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven dug five Tefachim and Shimon dug the 
               last five Tefachim, Shimon takes full responsibility 
               for it!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> According to Rebbi, both are liable for 
          damages. (The argument of Rebbi and Chachamim is brought 
          below.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of a joint pit in a Reshus 
          ha'Rabim, according to Chachamim regarding death and 
          damages, and according to Rebbi regarding death?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> The case is, they jointly removed 
          the layer of dirt that completed the pit to a depth of 10 
          Tefachim.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the argument of Rebbi and Chachamim?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> If Reuven dug nine Tefachim, and 
          Shimon dug another Tefach, Shimon is responsible for the 
          pit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi says, Shimon is liable if an animal dies 
               there. Both are liable for damage.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is Chachamim's source?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1 - Question:</font></b> 'If a man will open...or dig a 
          pit' - if he is liable for opening it, all the more so he 
          is liable for digging it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, this teaches that if Shimon 
               finishes digging a pit that Reuven started, Shimon 
               is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi says, we need both verses, like above (that 
               even one who digs a pit is exempt if he covers it, 
               and even one who opens a pit is liable if he does 
               not cover it).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection:</font></b> Chachamim also need both verses to teach 
          this!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2:</font></b> They learn from 'if a man will dig a pit', 
          not two men.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi expounds 'if a man will dig a pit', but not 
               if an ox will make a pit (one is exempt for an 
               obstacle his ox creates).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, another verse says 'if a man will 
               open a pit', so we learn both laws!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rebbi says, we learn from one verse. The other 
               uses the same expression for parallel structure.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> (According to Chachamim) why is the one who 
          completes it liable, not the one who starts it?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> '(Ba'al ha'Bor will pay...) and the dead animal 
          will be to him (its original owner)' teaches that the one 
          who enabled the pit to kill is liable.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> We need that verse to teach Rava's law!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> 'And the dead animal will be to him' - 
               one is liable only when the carcass is permitted. 
               This excludes a blemished Korban that fell in a pit. 
               (The only benefit permitted from a blemished Korban 
               is to eat it. Since it died without slaughter, one 
               may not use the meat).
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> Yes, it teaches Rava's law; automatically, we 
          also learn that Ba'al ha'Bor is the one who enabled 
          death!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>MAKING A PIT DEEPER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa #1):</font></b> If Reuven dug 10 Tefachim, Shimon dug 
          another 10, and Levi dug another 10, all are liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction (Beraisa #2):</font></b> If Reuven dug 10 Tefachim, 
          and Shimon plastered it (which intensifies the Hevel 
          inside), Shimon is liable.
<br>
<br>

sjt:
<font><b>1) PIT TO KILL</b></font><b>
<br>QUESTION:</b> The Beraisa discusses a case in which one digs a Bor nine Tefachim deep and another person comes and extends it to ten Tefachim deep (thereby rendering it capable of killing). The Rabanan maintain that only the second person is liable for damages and fatalities. Rebbi maintains that if the Bor kills, only the second person is liable, since the nine Tefachim that the first person dug are not lethal. However, if the Bor damages, both are liable.
</p><p>
Later (51a), the Gemara cites another Beraisa that states that if one digs a Bor ten Tefachim deep, a second person extends it to twenty Tefachim, and a third person deepens it to thirty Tefachim, they are all liable. The Gemara asks that a different Beraisa states that when one digs a Bor ten Tefachim deep and someone else puts decorative plaster on the walls of the Bor, only the second person is liable. <b>RASHI</b> (DH Siyed) explains that when the Bor was dug originally, it was wide and therefore did not possess much Hevel (bad air, the damaging component of a Bor according to Rav, see 50b). The second person who plastered and decorated the walls made the Bor narrower and thereby added Hevel. The Gemara asks, why are all of the diggers liable in the case of a Bor which was extended by ten Tefachim twice, while this Beraisa says that only the person who plastered the Bor is liable? 
</p><p>
The Gemara suggests that the Beraisa which says that each person who extended the Bor is liable follows the opinion of Rebbi, and the other Beraisa follows the opinion of the Rabanan. The Gemara rejects this suggestion and asserts that in fact the Rabanan agree with the Beraisa which obligates all three diggers, since all three dug a Bor capable of killing. In contrast, in the first Beraisa (which discusses a nine-Tefach Bor that was extended to ten Tefachim) the Rabanan maintain that the first digger is exempt even from damages because he dug only a nine-Tefach Bor which was unable to kill. 
</p><p>
The Gemara says that similar logic applies to the last Beraisa. The first digger is exempt even though he dug a Bor of ten Tefachim, since it did not contain enough lethal Hevel because it was so wide. Only when the second person plastered it and made it narrow did it gain its lethal capability.
</p><p>
<b>TOSFOS</b> (DH Bor) explains that according to the original suggestion of the Gemara that the second Beraisa follows Rebbi and the third follows the Rabanan, even if the second digger deepens the Bor to only eleven Tefachim (from ten) he would be liable. 
</p><p>
Why does Tosfos make this comment only according to the Gemara's suggestion that the second person who extends a Bor to eleven Tefachim is liable? Tosfos implies that according to the Gemara's conclusion, only the person who extends a Bor to eleven Tefachim, not to twenty, is exempt. Is this in fact the law?
</p><p>
<b>ANSWER:</b> The <b>RASHBA</b> explains that the Gemara initially understands that when the Beraisa says that the person who plastered the Bor is liable, it means that the Bor did not need to undergo a major modification in order for that person to become liable. Even a small change sufficed to make that person liable. Accordingly, if the person who plastered the Bor is liable, in the case of a second digger who deepened a Bor, that second person would not have to dig another ten Tefachim in order to be liable. He should be liable even if he digs only one Tefach more. However, when the Gemara answers that a major action is required to make the second person liable for the damages caused by the Bor, it means that the person who plastered the Bor is liable because he turned the Bor into one that can kill. Similarly, a person who extends a ten-Tefach Bor is liable only if he does a major action -- he deepens the Bor by another ten Tefachim which are capable of killing on their own.
</p><p>
(See also <b>MAHARSHA</b> and <b>MAHARSHAL</b> in <b>CHOCHMAS SHLOMO</b> who explain Tosfos in this manner. See also see <b>MAHARAM</b>.) (D. Bloom, Y. Montrose)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps Beraisa #1 is like Rebbi, and 
               Beraisa #2 is like Chachamim!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #1 - Answer (Rav Zvid):</font></b> No, both are like 
          Chachamim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim exempt the first digger only when he 
               did not dig an amount fitting to kill. When he dug 
               an amount fitting to kill, they agree that all are 
               liable.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> In Beraisa #2, Reuven dug 10 Tefachim, and he 
          is exempt!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> There, the Hevel could not have killed until 
          Shimon plastered it (it was wider than deep).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #2 - Answer (Rav Zvid):</font></b> No, both are like 
          Rebbi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beraisa #1 says, all are liable. Clearly, this is 
               like Rebbi.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In Beraisa #2, only Shimon is liable. The case 
               is, before it was plastered, the Hevel could not 
               even damage. After it was plastered, the Hevel can 
               damage and kill.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rava):</font></b> Reuven dug nine Tefachim. Shimon placed a rock 
          by the opening, causing the floor to be 10 Tefachim below 
          the opening. Rebbi and Chachamim argue (if Reuven is also 
          liable for damage).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that when Shimon digs 
          another Tefach, we attribute the damaging Hevel to him, 
          but here, the Hevel (at the bottom) is not due to Shimon. 
          Rava teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If Reuven dug nine Tefachim, and 
          Shimon dug another Tefach, then filled in that extra 
          Tefach, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say that he undid his action?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, once he completed it to 10 Tefachim, he 
               assumed sole responsibility for it, so even when he 
               fills in the last Tefach, he remains responsible!
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	This question is unresolved.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>OTHER FACTORS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah):</font></b> If the bottom two Tefachim of 
          an eight Tefachim pit are filled with water, it is 
          liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> One Tefach of water is like two Tefachim of 
          air.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If the bottom Tefach of a nine Tefachim pit 
          is filled with water, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since there is less water (than an eight Tefachim 
               pit with two Tefachim of water), its Hevel cannot 
               kill;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since it is deeper, it can kill.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If the bottom three Tefachim of a seven 
          Tefachim pit are filled with water, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since there is more water, its Hevel can kill;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since it is not as deep, it cannot kill.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	These questions are unresolved.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Shizbi):</font></b> If Shimon widened Reuven's pit, 
          what is the law?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> He reduced the Hevel, so he is 
          exempt.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection (Rav Shizbi):</font></b> Just the opposite! He brought 
          the damage closer (for animals to fall in)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Version #1 - Answer #2 (Rav Ashi):</font></b> If the animal died 
          from the Hevel, this is not due to Shimon;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it died from the blow, he brought the damage 
               closer.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #2 - Answer #2 (Rav Ashi):</font></b> If the animal fell 
          in from the side Shimon added, Shimon is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it fell in from the other side, he is exempt.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rabah or Rav Yosef, citing R. Mani):</font></b> If a pit is as 
          wide as it is deep, it can kill. If it is wider, it 
          cannot;
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(The other of Rabah and Rav Yosef, citing R. Mani):</font></b> A 
          pit can kill only if it is deeper than wide.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>WHICH PARTNER IS RESPONSIBLE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the first partner (Reuven) passed by and 
          did not cover it...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> When is Reuven exempt?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rabah or Rav Yosef, citing R. Mani):</font></b> He is 
          exempt if he left the other partner (Shimon) using it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (The other of Rabah and Rav Yosef, citing R. 
          Mani):</font></b> He is exempt if he handed over the cover to 
          Shimon.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	They argue like the following Tana'im
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven was drawing water from a 
               pit, and Shimon (his partner) said 'let me draw', 
               once Reuven lets him use it, he is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Eliezer ben Yakov says, when he hands over the 
               cover to Shimon, he is exempt.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Eliezer ben Yakov holds that Yesh Bereirah. 
          (This is not the usual Bereirah. Here it means that the 
          terms of the partnership are that each totally owns  it 
          at the time he uses it);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When Shimon draws, he draws from his half. Reuven is 
               always responsible for his half, unless he gave over 
               the cover, for then Shimon is the guardian over the 
               whole well;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim hold that Ein Bereirah. When Shimon 
               draws, he borrows Reuven's half, and is responsible 
               for the whole well.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Ravina):</font></b> This is like they argue about partners in a 
          yard.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If vows forbid partners (in a yard) 
               from benefiting from each other, neither may enter 
               the yard;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Eliezer ben Yakov says, each enters his own 
               half.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What do they argue about?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> R. Eliezer ben Yakov holds that Yesh 
               Bereirah. When Shimon enters, he enters his half;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Chachamim hold that Ein Bereirah. When Shimon 
               enters, he benefits from Reuven's half.
<br>

sjt:
<p>
<font><b>2) WHEN THE HALACHAH IS 'EIN BEREIRAH'</b></font><b>
<br>QUESTION:</b> The Mishnah (51a) states that two partners own a Bor and both passed by it and did not cover it, the second partner who passed by is liable for the damage that it subsequently causes. 
</p><p>
The Gemara (51b) asks, when does the exemption of the first partner begin? <b>RASHI</b> (DH v'Rishon) explains that it is obvious that when the Mishnah says that the partners passed by, it is not meant literally; if they passed by one after the other, there is no reason why the first should be exempt. After all, he was just as negligent as the second partner for not covering the Bor. Rather, when the Mishnah says that each 'passed by,' it means that they actually used the Bor. In what case, then, would the first partner be exempt?
</p><p>
The Gemara gives two answers. The first answer is that when the first partner leaves the second one using the Bor, he is exempt. The second answer is that the exemption begins only when he hands over the cover of the Bor to his partner. The Gemara then cites a dispute between Tana'im which is dependent on these answers. The Beraisa states that if one person was drawing water from a Bor and his friend came and said, 'Let me draw water,' according to the Tana Kama the first person becomes exempt from liability once he leaves the second one using it. This view is consistent with the Gemara's first answer. Rebbi Eliezer ben Yakov disagrees and exempts the first person only when he hands over the cover of the Bor to the second person. His view is consistent with the Gemara's second answer.
</p><p>
The Gemara explains that the Rabanan and Rebbi Eliezer ben Yakov disagree about whether Bereirah works. 'Bereirah' refers to a retroactive clarification of the status of a past event based on an event which occurs in the future. 
<br>Rebbi Eliezer ben Yakov maintains 'Yesh Bereirah,' and thus when each partner draws water he may say that he is drawing his own water. <b>RASHI</b> (DH v'Ha) explains that the water that the second person draws is considered as though that water always belonged to him. Since he is not using the first partner's water, he is not responsible for guarding the first partner's portion of the Bor. Consequently, if the Bor damages they are both liable. The second person becomes the sole guardian of the Bor only when he receives the cover.
</p><p>
The Gemara adds that Rebbi Eliezer ben Yakov and the Rabanan are consistent with their respective positions in a different dispute. The Mishnah in Nedarim (45b) teaches that when partners in a courtyard vow not to derive benefit from each other, according to the Rabanan neither partner may enter the courtyard. Rebbi Eliezer ben Yakov maintains that each partner is permitted to enter his own part of the courtyard. The Rabanan maintain 'Ein Bereirah,' and thus when each partner uses the courtyard there is <i>no</i> retroactive clarification that the part that he is using now was the part he bought as his portion at the time of the original Kinyan. Consequently, he is using not only his portion but his friend's portion as well. Rebbi Eliezer ben Yakov maintains 'Yesh Bereirah,' and thus when each partner uses the courtyard there <i>is</i> retroactive clarification that the part that he is using now was the portion which he owned from the beginning. Accordingly, he is using only his portion and not his friend's.
</p><p>
The Gemara in Nedarim (46b) concludes that the Halachah follows Rebbi Eliezer ben Yakov, and each partner is permitted to enter his own portion of the courtyard. This implies that the Halachah is 'Yesh Bereirah.' However, the Gemara in Beitzah (38a) concludes that for matters of Torah law the Halachah is 'Ein Bereirah,' and for matters of rabbinical law the Halachah is 'Yesh Bereirah.'
</p><p>
However, the prohibition against deriving benefit in the case of a vow is a Torah prohibition. Why, then, does the Halachah follow Rebbi Eliezer ben Yakov, who says that each partner may enter the courtyard because he is considered as though he enters his own portion? (See <b>RAN</b> to Nedarim 45b, DH v'Ika, and Insights there.)
</p><p>
<b>ANSWER:</b> The <b>RE'AH</b> answers in the name of the <b>RAMBAN</b> (cited by the <b>NIMUKEI YOSEF</b>) that the concept of Bereirah which the Gemara here discusses is different from the normal concept of Bereirah mentioned elsewhere.
</p><p>
The Gemara in Gitin (25a) discusses a case in which a person buys wine from an Am ha'Aretz (who is not trusted to separate tithes), and it is not possible for him to separate tithes before he drinks the wine. According to the opinion that 'Yesh Bereirah,' he may designate which quantities of wine from the barrel will later be Terumos and Ma'aseros, and he may proceed to drink the wine. He may rely on the fact that the wine which he will separate later (from the wine he leaves over and does not consume) is already considered as Terumos and Ma'aseros because of 'Yesh Bereirah.'
</p><p>
In contrast, in the case of the Gemara here, one cannot say that after the partners will divide the courtyard it will become determined that the area that each partner entered was in fact his, because each partner is using the entire courtyard. Here, the phrase 'Yesh Bereirah' means that when each partner uses the courtyard, he does so because of his right to use it; he is not considered to be using his friend's part at all.
</p><p>
What is the logic of the Gemara? The Re'ah's explanation may be understood based on the words of the <b>RAMBAN</b>, as cited by the <b>NIMUKEI YOSEF</b> here (and by the <b>RAN</b> in Nedarim 45b in the name of <b>HA'RAV RABEINU MOSHE</b>). The Ramban explains that since the courtyard under discussion is not large enough to be divided (see Nedarim 46b), each partner may use all of the courtyard. Each partner is considered as though he enters his own portion of the courtyard. If one partner would be able to forbid the other to use any of the courtyard, this would mean that he forbids his friend to use any of the courtyard in which he is a partner. Since there is a principle that a person cannot make a property forbidden from use by the owners themselves, it is not possible for one partner to make the courtyard forbidden to the other. Accordingly, the words 'Yesh Bereirah' here mean that each partner has the choice to use the courtyard because the other does not have the ability to forbid him from doing so. (D. Bloom, Y. Montrose)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PERMISSION TO ACQUIRE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> If Reuven sold a well to Shimon, once he 
          hands over the cover, he acquires the well.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he acquired it with money, that is the 
               acquisition!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he acquired it with Chazakah, that is the 
               acquisition!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, he acquired with Chazakah. Normally, 
          Reuven must say 'go make a Chazakah';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Handing over the cover is like saying 'go make a 
               Chazakah.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Yehoshua ben Levi):</font></b> If Reuven sold a house to 
          Shimon, once he hands over the key, he acquires the 
          house.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he acquired it with money, that is the 
               acquisition!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he acquired it with Chazakah, that is the 
               acquisition!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, he acquired with Chazakah. Normally, 
          Reuven must say 'go make a Chazakah';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Handing over the cover is like saying 'go make a 
               Chazakah.'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> If Reuven sold a herd to Shimon, once 
          he hands over the Mashchuchis (this will be defined), he 
          acquires the herd.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he acquired it with Meshichah (dragging), that 
               is the acquisition!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he acquired it with Mesirah (handing over), 
               that is the acquisition!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, he acquired with Meshichah. Normally, 
          Reuven must say 'go do Meshichah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Handing over the Mashchuchis is like saying 'go 
               do Meshichah.'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the Mashchuchis?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1 (Chachamim of Bavel):</font></b> It is the bell one 
          rings to make the herd come.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2 (R. Yakov):</font></b> It is the goat that goes at the 
          front.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(A Galilean, in front of Rav Chisda):</font></b> When a shepherd 
          is angry at the flock, he blinds the lead goat. (It will 
          fall in a pit, and they will follow it. Similarly, when 
          Hash-m wants to punish Yisrael, He appoints an improper 
          leader.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHICH PARTNER IS RESPONSIBLE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven covered the pit, and Shimon found 
          it uncovered and did not cover it, Shimon is liable;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven properly covered a pit and an animal fell in 
          and died, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he covered it improperly and an animal fell in 
               and died, he is liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If an animal fell forwards, due to the noise of the 
          digging, he (the owner of the pit) is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it fell backwards, due to the noise of the 
               digging, he is exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If an ox fell in with its Kelim and they broke, or a 
          donkey with its Kelim and they tore, he is liable for the 
          animals, but not for the Kelim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If an ox fell in, if it (alternatively, the owner) was 
          deaf, insane, or a child, the owner is paid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it (or he) was a child or slave, no payment is 
               made.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Until when is Reuven exempt?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> He is exempt until he sees that it is 
          uncovered.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> He is exempt until he is told that 
          it is uncovered.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (R. Yochanan):</font></b> He is exempt until he is told 
          that it is uncovered and can hire workers to cut trees to 
          cover it.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HOW STRONG MUST THE COVER BE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven properly covered a pit and an 
          animal fell in and died, he is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If it was covered properly, how did an animal 
          fall in?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (R. Yitzchak bar bar Chanah):</font></b> Worms corroded the 
          cover.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 - Question:</font></b> If Reuven's pit was covered 
          properly for oxen to pass over, but not for camels, and 
          camels passed over and weakened it, then oxen fell in, 
          what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If camels often go there, Reuven was negligent!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If camels do not go there, this is Ones!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, camels occasionally go 
               there.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Do we say, he should have realized that camels 
                    might go there?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Or, since there were not camels at the 
                    time, he is Ones.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> If he covered it properly and an 
          ox or donkey fell in and died, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> It was covered properly for oxen and 
               camels.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If so, how did an animal fall in?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1:</font></b> It was covered properly for oxen, but 
               not for camels (and camels passed over and weakened 
               it).
<br>
<br>

sjt:
<font><b>1) WHAT ACT OF 'KINYAN CHAZAKAH' ACQUIRES A HOUSE?</b></font><b>
<br>OPINIONS:</b> The Gemara (end of 51b) says in the name of Rebbi Yehoshua ben Levi that when one sells a house to his friend, the act of handing over the keys consummates the sale. The Gemara explains that the house is acquired through a separate Kinyan called 'Chazakah,' usage of the house.
</p><p>
However, when one sells a house he must first tell the buyer, 'Go, perform an act of Chazakah, and acquire.' Accordingly, Rebbi Yehoshua ben Levi must mean that when the seller hands over the keys to the buyer, it is equivalent to telling him, 'Go, perform an act of Chazakah, and acquire.' This is why the subsequent Chazakah is effective.
</p><p>
What exactly does this Kinyan Chazakah entail?
</p><p>
(a) <b>TOSFOS</b> (52a, DH Keivan) cites the <b>RASHBAM</b> in Bava Basra (53a, DH v'Hashta Ka'aili) who comments on the Gemara's statement there (52b) that when one locks the property of a convert who died with no heirs, he thereby acquires the convert's estate. The Rashbam explains that the Gemara does not mean that it suffices merely to lock the door with a key to acquire it through Chazakah. One must actually install a new lock on the door. According to the Rashbam, this seems to be the act of Kinyan discussed by the Gemara here. 
</p><p>
Tosfos questions the Rashbam's explanation. The Gemara in Gitin (77b) relates an incident in which a Shechiv Mera (a dying man) wrote a Get for his wife before Shabbos but did not have time to give it to her before Shabbos arrived. On Shabbos, his condition deteriorated and he feared that he would die on Shabbos and that his wife would be forced to do Yibum with his brother (see Rashi there). 
</p><p>
When Rava was asked what should be done, he replied that the dying man should give the part of his house where the Get was situated to his wife. She should proceed to lock the door and thereby acquire the place of the Get through the act of Chazakah of locking the door. The Gemara there clearly says that the act of Chazakah was the mere act of locking the door (and not the installation of a new lock, which is forbidden on Shabbos). 
</p><p>
(b) Tosfos asserts that the act of locking the door alone suffices to effect a Chazakah. Tosfos adds that although the Rabanan prohibited acts of Kinyan on Shabbos, the Gemara in Bava Basra (156b) states that acquiring something from a Shechiv Mera on Shabbos is permitted. Since there is a concern that his condition will deteriorate if he knows that he cannot make a Kinyan, the Rabanan did not apply the prohibition in such a situation.
</p><p>
The <b>SHITAH MEKUBETZES</b> asks that although the prohibition against making a Kinyan on Shabbos is only mid'Rabanan while the prohibition against making a lock is mid'Oraisa, there appears to be a way in which making a lock may also be prohibited only mid'Rabanan, in which case Rava's ruling meant that the woman should make a lock for the door: telling a Nochri to perform a Melachah is prohibited only mid'Rabanan, and thus the woman could ask a Nochri to make a lock for the door for her.
</p><p>
The Shitah Mekubetzes answers that in this case, Rava would not have permitted the woman to ask a Nochri to do a Melachah (d'Oraisa) so that the Shechiv Mera could give a Get to his wife. (See also <b>ROSH</b> to Bava Basra 3:59.)
</p><p>
This answer is difficult to understand. The Gemara in Shabbos (129a) states that one may ask a Nochri to perform any Melachah (even a Melachah d'Oraisa; see <b>MISHNAH BERURAH</b> OC 328:47) on Shabbos for a sick person whose life is not in danger (provided that the sick person needs this Melachah; see Rashi there, DH Davar). Why, then, does the Shitah Mekubetzes assert that one may not ask a Nochri to do a Melachah d'Oraisa for a Shechiv Mera?
</p><p>
Perhaps when the Gemara in Shabbos states that one may ask a Nochri to perform a Melachah d'Oraisa for a sick person who is not in danger, it refers only to a situation in which one has no alternative way (that involves a lighter prohibition) to provide the patient with his needs. In the case of the Shechiv Mera, there was a preferable way to transfer the Get to the woman; the woman could do a transaction which is prohibited only mid'Rabanan. Although asking a Nochri to do a Melachah is prohibited only mid'Rabanan, since it involves a Torah prohibition (the Melachah which the Nochri performs) it is considered more severe than the Isur d'Rabanan against making a transaction on Shabbos. (D. Bloom, Y. Montrose)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> We cannot say that camels often go 
               there, for if so he was negligent, and he would be 
               liable!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If camels do not go there, this is Ones. 
                    Obviously, he is exempt!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> We must say that camels occasionally go 
               there. (The Mishnah says that he is liable. This 
               answers question (d)).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection (and Answer #2 to Question e:3 - R. Yitzchak 
          bar bar Chanah):</font></b> It was covered properly for oxen and 
          camels, and worms corroded the cover.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Mishnah):</font></b> If he covered it improperly and an 
          animal fell in and died, he is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it was not covered properly for oxen or 
                    camels, obviously, he is liable!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, it was covered properly for 
               oxen, but not for camels.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If camels often go there, obviously, he is 
                    liable! If camels do not go there, this is 
                    Ones. He should be exempt!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, camels occasionally go 
               there. Camels passed over and weakened it, then oxen 
               fell in.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The Mishnah says that he is liable. (This answers 
               Question (d).) 
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection (and Answer #2 to Question g:1):</font></b> Really, it 
          was covered properly for oxen, but not for camels, and 
          camels are common;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Indeed, it is no Chidush that he is liable. The 
               case was taught for parallel structure.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #2:</font></b> We need not ask about a pit covered 
          properly for oxen, but not for camels. Clearly, he is 
          negligent, since camels sometimes go there! Rather, we 
          ask about the following.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If a pit was covered properly for oxen, but 
          not for camels, and camels often go there, and worms 
          corroded the cover (and an ox fell in), what is the law? 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>Do we say that since he was negligent regarding 
               camels, he is liable also for corrosion;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we not say so?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> If it was covered properly, and an 
          ox or donkey fell in, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yitzchak bar bar Chanah):</font></b> The case is, worms 
               corroded the cover.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What does 'it was covered properly' 
               mean?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it was covered properly for oxen and camels, 
                    clearly, he is exempt. What else could he have 
                    done?!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, it was covered properly for 
               oxen, but not for camels, and camels often come. We 
               do not say that since he was negligent regarding 
               camels, he is liable also for corrosion. (This 
               answers Question (j).)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection (and Answer #2 to Question k:2):</font></b> Really, it 
          was covered properly for oxen and camels (and worms 
          corroded it);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that he must regularly 
               test that the cover is still strong. The Mishnah 
               teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2 (Mishnah):</font></b> If it was not covered properly and 
          an ox or donkey fell in, he is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it was not covered properly for oxen and 
                    camels, obviously he is liable!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, it was covered properly for 
               oxen, but not for camels.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If camels often come, he is negligent. 
               Obviously he is liable!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If camels do not come, he is Ones. He should be 
                    exempt!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, camels often come, and the cover 
               corroded. We say that since he was negligent 
               regarding camels, he is liable also for corrosion. 
               (this answers Question (h)).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Rejection (and Answer #2 to Question m:1):</font></b> Really, it 
          was covered properly for oxen but not for camels. Camels 
          often come, they came and weakened the cover, and then an 
          ox fell in.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Obviously, he is liable. This case was taught 
               only for parallel structure.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #3 (Beraisa):</font></b> An ox fell in that was deaf, 
          insane, young, blind, or walking at night, (the pit's 
          owner) is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a healthy ox fell in during the, he is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We do not say that since he is liable for a deaf 
               ox, he is liable also for a healthy ox. (Similarly, 
               liability for camels does not confer liability for 
               corrosion.)
<br>

sjt:
<p>
<font><b>2) NEGLIGENCE WHICH LEADS TO 'ONES'</b></font><b>
<br>QUESTION:</b> The Mishnah (52a) teaches that when a person covers his Bor properly and nevertheless someone's ox or donkey falls in, the owner of the Bor is exempt from payment. How did an animal fall into the Bor if the owner covered it property? Rebbi Yitzchak bar bar Chanah explains that worms inside the cover caused it to decay.
</p><p>
The Gemara (52b) asks what the law is in the following case. A person covered his Bor with a cover which can bear only the weight of the oxen, but not the weight of camels. The cover eventually collapsed under the weight of oxen due to internal decay. Is the owner liable or not?
</p><p>
Perhaps, since the owner was negligent with regard to camels (he did not cover the Bor with a cover which could bear the weight of camels), the eventual collapse of the cover (due to worms) is also attributed to his negligence, and he is liable for the damage done to the oxen which fell into the Bor. On the other hand, since the damage that occurred was unrelated to his initial negligence with regard to camels, he is not liable.
<br> 
<br>The Gemara concludes that if the damage occurred only because of worms, the owner of the Bor is exempt even though he was negligent in preventing camels from falling into the Bor.
</p><p>
However, there seems to be another reason for why the owner of the Bor should be liable. This case seems to be a case of 'Techilaso b'Peshi'ah v'Sofo b'Ones' - 'starting off with negligence and ending up with forced circumstance.' The Gemara (21b and elsewhere) discusses this concept at length (see Insights to Bava Metzia 93:3). The Amora'im disagree about whether a person is liable for damage which occurs due to circumstances beyond his control ('Ones') when he was initially negligent in preventing his property from doing damage. The Halachah is that one is liable in a case of 'Techilaso b'Peshi'ah v'Sofo b'Ones.' (See <b>RAMBAM</b>, Hilchos Nizkei Mamon 2:15). Why, then, does the Gemara here conclude that the owner of the Bor is exempt?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH u'Shechichi) answers in the name of the <b>RIVA</b> that this Halachah applies only when the Ones occurred as a result of the Peshi'ah; that is, the damage which was beyond his control occurred only as a result of his original negligence. Accordingly, in the case of the Gemara here the owner cannot be liable because of 'Techilaso b'Peshi'ah v'Sofo b'Ones,' since the worms would have caused the cover to collapse regardless of whether the owner was negligent in the beginning or not. Even had the owner covered the Bor with a cover that could bear the weight of all types of animals, the collapse of the cover would have been beyond his control. 
</p><p>
Tosfos cites support for this answer from the Gemara in Bava Metzia (36b). The Gemara there discusses the case of a guardian of a cow who was negligent and allowed a cow to escape. It wandered off to a marsh where it died of natural causes. According to Rabah, the guardian is exempt. He asserts that even according to those who maintain that one is liable in a case of 'Techilaso b'Peshi'ah v'Sofo b'Ones,' in this case one is exempt because the Malach ha'Maves could kill the cow just as easily whether it was at home or in the marsh, since it died naturally. Rabah's words are proof for the Riva's assertion, because Rabah maintains that the reason why the guardian is exempt is that there is no connection between the original Peshi'ah and the final Ones.
</p><p>
(b) The <b>BA'AL HA'ME'OR</b> (22b of the pages of the Rif) answers that although in all other cases the Halachah is that one is liable for 'Techilaso b'Peshi'ah v'Sofo b'Ones,' nevertheless the Torah makes a special exception in the laws of Bor. 
</p><p>
The Ba'al ha'Me'or's source for this distinction is the Gemara later (53b). The Gemara there says that the two times the Torah says that the dead body of the animal damaged 'will belong to him' are in connection with a Bor which damaged (Shemos 21:34) and a Shor that damaged (Shemos 21:36). 
</p><p>
The Gemara asks that although the verse which mentions Bor is expounded to teach a leniency, the verse which mentions Shor is expounded to teach a stringency. How can the same verse have a lenient implication for Bor but a stringent implication for Shor? The Gemara answers that the verse likely teaches an exemption in the laws of Bor since we find that the Torah teaches another leniency in the laws of Bor -- that the owner of the Bor is exempt from liability for damages of vessels which fall into the Bor. Since the Torah exempts the owner of the Bor in one regard, it is likely that the Torah exempts him in another regard as well.
</p><p>
The Ba'al ha'Me'or adds that although in all other cases of 'Techilaso b'Peshi'ah v'Sofo b'Ones' the owner is liable, for Bor there is a special exemption and the laws of Bor cannot be compared to the laws of other dorms of damages. (D. Bloom)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>FALLING INTO A PIT DUE TO NOISE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If an animal fell forwards...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav):</font></b> 'Forwards' and 'backwards' are understood 
          simply. In both cases, it fell in the pit.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Rav holds, that one is liable for 
               the Hevel at the bottom of a pit (i.e. when it falls 
               headfirst), not for the blow. (When it falls 
               backwards, the only damage is from the blow.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> If it falls in the pit, either way it is 
          liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Shmuel holds, that one is liable for 
               the Hevel, and all the more so for the blow.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Mishnah exempts for falling backwards from 
               the noise of the digging. This is when it tripped on 
               the pit and fell outside the pit.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (against Rav - Beraisa):</font></b> If it falls in the 
          pit, whether forwards or backward, it is liable.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rav Chisda):</font></b> Rav agrees about a pit in the 
          owner's premises (since he owns the ground, he is liable 
          also for the blow).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rabah):</font></b> In the Beraisa, 'backwards' is when 
          it fell headfirst, then flipped over onto its back.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We attribute the death to the Hevel at the 
               bottom, which it inhaled at the beginning of the 
               fall.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #3 (Rav Yosef):</font></b> The Beraisa discusses liability 
          of (the owner of) the ox for damage to the pit.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What was the damage?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> It dirtied the water.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa teaches that he is liable either way 
               the ox fell.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Support (for Rav - Rav Chananya - Beraisa):</font></b> 'And it 
          fell' - he is liable only if it fell normally;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If an animal fell forwards, from the noise of the 
               digging, he is liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it fell backwards, from the noise of the 
               digging, he is exempt;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> In both cases, it fell in the pit.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why is the pit's owner liable if fell in 
          forwards, from the noise of the digging? The one digging 
          caused the damage! (The digger is exempt because it is 
          only Gerama.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Simi bar Ashi):</font></b> The Beraisa is like R. 
          Nasan, who says that since the pit damaged, what cannot 
          be collected from the other damager is collected from the 
          pit.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DAMAGE CAUSED BY TWO SHELUCHIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven's ox pushed Shimon's ox into 
          Levi's pit, Reuven is liable, and Levi is exempt;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Nasan says, Reuven and Levi each pay half.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Contradiction (Beraisa - R. Nasan):</font></b> Reuven pays 
          quarter-damage, and Levi pays three fourths.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> A Mu'ad pays half the damage. A Tam pays 
          quarter-damage.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If R. Nasan holds that the ox and pit both did 
               all the damage, even a Tam should pay half!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he holds that each did half the damage, a Tam 
               should pay a fourth, the pit a half, and Shimon 
               should lose a fourth!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> Really, each did all the damage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When a Tam damages alone, it pays half-damage. 
               Now that it had a partner, it only pays half of 
               that.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, each did half the damage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon can tell Levi 'my ox died in your pit. 
               What I cannot collect from Reuven, I can collect 
               from you.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven put a rock on the mouth of Levi's 
          pit; and Shimon's ox tripped on it and fell in the pit, 
          R. Nasan and Chachamim argue about this.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that Chachamim exempt 
          Levi only when Reuven's ox pushed the ox in. Even if not 
          for the pit, Reuven's ox would have killed it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, if not for the pit, the rock would not have 
               damaged, so they would agree Levi pays half the 
               damage! Rava teaches that this is not so.
<br>
<br>

sjt:
<font><b>1) PARTNERS IN DAMAGE: WHO IS RESPONSIBLE?</b></font><b>
<br>QUESTION:</b> The Mishnah (52a) states that when an ox falls frontward into a Bor as a result of being frightened by a noise made by someone digging in the Bor, the owner of the Bor is liable for the damage done to the ox. However, when the ox falls backwards into the Bor as a result of the noise, the owner is exempt.
</p><p>
Shmuel (53a) states that the owner of the Bor is liable both when an ox falls forwards and when it falls backwards. When the Mishnah says that the owner is exempt when the ox falls backwards, it refers to a case in which the ox trips on the Bor and falls outside the Bor (on the ground, not inside the Bor). 
</p><p>
The Gemara later cites a Beraisa which records a dispute between the Tana Kama and Rebbi Nasan. When one ox pushes another into a Bor, according to the Tana Kama only the owner of the ox that pushed is liable. According to Rebbi Nasan, the owner of the ox <i>and</i> the owner of the Bor are liable, and each pay for half of the damage.
</p><p>
Rava comments that the law in another case depends on the dispute between the Tana Kama and Rebbi Nasan. The Tana Kama and Rebbi Nasan will disagree about the law in a case in which a person places a stone at the edge of a Bor and an ox comes and trips on it and falls into the Bor. <b>RASHI</b> (DH Banu) explains that according to the Tana Kama, the owner of the stone is liable for all of the damage because he started the damage (see also Rashi DH Mai). According to Rebbi Nasan, the owner of the stone and the owner of the Bor must pay equally.
</p><p>
What is the difference between Rava's case and Shmuel's explanation of the Mishnah? In Rava's case, the fact that the ox slipped on the stone is that makes the owner of the stone liable to pay at least half the damages. Why, then, when the ox trips on the Bor and falls outside the Bor does everyone agree that the owner of the Bor is exempt entirely? Although it was the ground of the Bor that actually inflicted the damage in Rava's case and the stone merely caused the ox to fall, nevertheless the owner of the stone must pay. Why does the owner of the Bor not have to pay in the case of the Mishnah, when it was the Bor that caused the ox to fall on the ground?
</p><p>
<b>ANSWERS:</b> 
<br>(a) The <b>BA'AL HA'ME'OR</b> (23b of the pages of the Rif) answers that when the Mishnah states that if the ox falls backwards the owner of the Bor is exempt, it means only that he is exempt from paying Nezek Shalem (full damages). He in fact is liable to pay Chatzi Nezek (half of the damage).
</p><p>
The Ba'al ha'Me'or writes that the Mishnah follows the second version of Rava in the Gemara. In the second version, Rebbi Nasan maintains that when an ox pushes another ox into a Bor, it is considered as though the ox did half of the damage and the Bor did half of the damage (and not that each one is considered to have done all of the damage).
</p><p>
Similarly, according to Shmuel, in the Mishnah's case of an ox which tripped on the Bor and fell on the ground next to the Bor, it is considered as though the Bor did half of the damage and the ground did half of the damage. The ground has no owner from whom the damagee may claim half of the damages. Therefore, in this case Rebbi Nasan agrees that the owner of the Bor pays only half. This supports the Gemara's conclusion that the Mishnah follows the opinion of Rebbi Nasan.
</p><p>
(b) The <b>RAMBAN</b> (in Milchamos) answers that the question is based on a faulty premise. In the case of the Mishnah, the ox fell because of the noise made by the person digging in the Bor, and not because of the Bor itself. If not for the digger's frightening noise, the ox would have suffered no damage.
</p><p>
Moreover, not only was the Bor not the initial cause of the damage but it also did not inflict the damage; the blow came from the ground of the public domain which is ownerless. Therefore, the Bor neither caused the start of the damage nor inflicted the damage. It therefore is understandable why the owner of the Bor is exempt entirely. In contrast, in Rava's case the stone at the edge of the Bor <i>started</i> the actual damage, and thus everyone agrees that its owner is liable for at least part of the payment. (See also <b>PNEI YEHOSHUA</b>.) (D. Bloom)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #1 (Abaye):</font></b> If Reuven's ox and a blemished 
          Korban gored together, Reuven pays half-damage;
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Ravina):</font></b> He pays quarter-damage.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Resolution #1:</font></b> Both of them discuss a Tam. Abaye's law 
          is like R. Nasan, and Ravina's is like Chachamim.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Resolution #2:</font></b> Both are like Chachamim. Abaye discusses 
          a Mu'ad, and Ravina discusses a Tam.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Version #2 (Abaye):</font></b> Reuven pays half-damage;
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Ravina):</font></b> He pays full damage.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Resolution #1:</font></b> Both of them discuss a Mu'ad. Abaye's 
          law is like Chachamim, and Ravina's is like R. Nasan.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Resolution #2:</font></b> Both are like R. Nasan. Abaye discusses 
          a Tam, and Ravina discusses a Mu'ad.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DAMAGE OF A MAN, AN OX AND A PIT TOGETHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> Reuven's ox and Shimon pushed (something) into 
          Levi's pit:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>Regarding Nezek (damage to a person), all are liable;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Regarding the other four damages (pain,...) and 
                    payment for an aborted fetus, only Shimon is 
                    liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding Kofer and the 30 Shekalim for killing a 
               slave, only Reuven is liable;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Regarding damage to Kelim and a blemished Korban 
               (that was redeemed), Reuven and Shimon are liable, 
               and Levi is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why is Levi exempt (for a blemished Korban)?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> 'And the carcass (of an ox that fell in a pit) 
          will be to him (the ox's owner)' - the carcass of a 
          blemished Korban is forbidden.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Rava was unsure of this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rava):</font></b> If a blemished Korban fell into 
               a pit, what is the law?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We cannot apply 'and the carcass will be to him' 
                    (because the carcass is forbidden), so the 
                    owner of the pit is exempt);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Or, does the verse teach that the ox's 
                    owner deals with the carcass (he is paid only 
                    the difference between the value of a live 
                    animal and the carcass)?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Rava later concluded like the first side of his 
          question.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> How does Rava learn that the ox's owner deals 
          with the carcass?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> He learns from 'the carcass will be to him' in 
          the Parshah of an ox that gores.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Regarding a pit, Rava uses this phrase to 
          exclude a blemished Korban; regarding an ox, he learns 
          that the victim's owner deals with the carcass;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps regarding a pit it teaches that the 
               victim's owner deals with the carcass, and regarding 
               a goring ox, it excludes a blemished Korban!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> It is more reasonable to exempt a pit (for a 
          blemished Korban), since a pit is exempt for Kelim.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Just the opposite! A (Tam) ox is more 
          lenient, for it pays only half-damage!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> We never find that Keren is totally exempt.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DOES ONE PAY FOR KELIM DAMAGED IN A PIT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If an ox and its Kelim fell and they 
          broke...
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Our Mishnah is unlike R. Yehudah:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> The owner of a pit is 
               liable for Kelim.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why do Chachamim exempt him?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> One pays if 'an ox or a donkey fell in' - 'an 
          ox', but not a person; 'a donkey', but not Kelim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah explains, 'or' includes Kelim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim need 'or' to teach that one is liable 
               even when only one animal falls in.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehudah learns this from the singular 
               conjugation 'v'Nafal (and it will fall)'.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Chachamim hold that 'v'Nafal' also connotes 
               animals falling.
<br>

sjt:
<p>
<font><b>2) THE TEACHING OF 'AN OX BUT NOT A MAN'</b></font><b>
<br>QUESTION:</b> Rava presents several laws concerning an ox and a man who pushed something into a Bor. One of the laws is that if they pushed an ox of Pesulei ha'Mukdashin (a sanctified ox that became disqualified from being offered as a Korban), the man and the owner of the ox are liable for the damage they did, while the owner of the Bor is exempt. The Gemara says that this is because the verse (Shemos 21:34) states that when something falls into a Bor and is killed there, 'the carcass shall be his (the owner's, as partial payment).' This verse excludes an ox of Pesulei ha'Mukdashin which can never belong to the owner of the Bor. Although it has been redeemed, it still must be buried and cannot be sold because it is forbidden from benefit (see Avodah Zarah 29b). Since the carcass cannot belong to the owner of the Bor, he is exempt from paying for the animal.
</p><p>
The Mishnah (52a) states that if an ox laden with vessels falls into a Bor and the vessels break, the owner of the Bor is liable for the damage done to the animal and exempt for the damage done to the vessels. The Gemara (53b) explains that the Mishnah follows the view of the Rabanan who derive from the verse 'and an ox or donkey falls in it' (Shemos 21:33) that the owner of a Bor is liable only for damages caused to 'an ox' and not to a man, and only for damages caused to a 'donkey' and not to vessels.
</p><p>
According to Rava, why is it necessary for the verse to teach ''an ox' but not a man'? There is another reason for why the owner of the Bor is exempt from damages done to a person: just as one is exempt in the case of the death of an ox of Pesulei ha'Mukdashin because one is forbidden to derive benefit from it, one should be exempt in the case of the death of a man because one is forbidden to derive benefit from a human corpse. 
</p><p>
<b>ANSWERS:</b> 
<br>(a) <b>TOSFOS</b> in Zevachim (71b, DH vib'Tereifah) answers that the teaching, ''an ox' but not a man,' is necessary for the following reason. The verse, 'the carcass shall be his,' does not teach that in the case of a man who fell into a Bor and died, the owner of the Bor is exempt from payment because of the prohibition against deriving benefit from a human corpse. Since one is permitted to benefit from certain parts of a human body according to Torah law (such as the skin), one would not have known that the verse intends to exempt the owner of the Bor from liability when a man falls into the Bor and dies.
</p><p>
(The Gemara in Chulin (122a) states that benefiting from the skin of a corpse is prohibited only mid'Rabanan. The Rabanan enacted this decree in order to prevent a person from making a bedspread out of the skin of his father or mother. See <b>RAMBAN</b> to Chulin there, and See Insights there.) 
</p><p>
However, <b>TOSFOS</b> earlier in Bava Kama (10a, DH sheha'Shor) rejects this answer. The fact that one is permitted to derive benefit from the skin of a human corpse does not mean that a human corpse is included in the verse, 'the carcass shall be his,' because one is also permitted to benefit from the hair of an ox of Pesulei ha'Mukdashin (see Bechoros 25a) and nevertheless it is excluded from the verse. Tosfos explains that as long as the primary part of the body is forbidden from benefit, the verse would not say that 'the carcass shall be his' and refer to a small part of the body from which one may derive benefit. 
</p><p>
(b) <b>TOSFOS</b> (10a) gives a different answer. The verse refers only to the carcass of an ox and not to the corpse of a human. Tosfos proves this from the Gemara here which asks, how does one know that this verse, 'the carcass shall be his,' exempts the owner of the Bor when the ox of Pesulei ha'Mukdashin falls in because he cannot own the body, and that only when the owner of the Bor can own the body must he pay? This same wording ('the carcass shall be his') is used in the case of a Shor which damages (Shemos 21:36). The Gemara derives from that verse that the owner of the ox must pay for damages and the damaged party retains the carcass! The Gemara asks that perhaps the opposite is true: the owner of the Bor must pay for the damages, while in the case of the Shor the owner is exempt.
</p><p>
Tosfos asks, how could the Gemara have thought that the verse about Shor teaches that the body of a person killed by one's Shor also belongs to the owner? The verse (Shemos 21:30) explicitly discusses cases in which the Shor killed a person, and thus the Torah obviously cannot mean that the body belongs to the owner of the Shor. Tosfos concludes that the verse of Shor refers only to a case in which the Shor killed an animal. Accordingly, it is clear why the teaching of ''an ox' but not a man' is necessary. This law cannot be derived from 'the carcass shall be his' since the Gemara clearly understands that the verse does not refer to a case of a man who fell into a Bor. (D. Bloom)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DOES ONE PAY FOR KELIM DAMAGED IN A PIT? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> 'And will fall' is a Klal (general term). 
          'Ox and donkey' are Peratim (specific terms). From a 
          Klal u'Frat, we should include only the Peratim!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'The owner of the pit will pay' is another 
          Prat. From a Klal u'Frat u'Chlal we learn everything 
          that is like the Prat;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Peratim are living. We learn everything 
               living.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> For both Peratim, their carcasses have Tum'as 
          Maga u'Masa (make Tamei something that touches or moves 
          them). We should learn only such things (but not birds)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> If so, the Torah should only have written 
          one Prat. (Since it wrote two, we include also birds.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> Which one should it have written?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it written only 'ox', one might have thought 
               that we include only animals that are offered on the 
               Mizbe'ach!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it written only 'donkey', one might have 
               thought that we only include animals whose firstborn 
               have Kedushah!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, we learn from 'and the dead animal 
          will be to him' - anything that dies.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why do Chachamim need 'donkey' to 
          exclude Kelim, and why does R. Yehudah obligate for Kelim 
          (Rashi; Tosfos - also R. Yehudah would have used 'donkey' 
          to exclude Kelim, if not for 'or')?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Breakage of Kelim is their death.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Rav holds that one is liable only for the 
          Hevel of a pit, which cannot break Kelim. Why do the 
          Tana'im need verses to exclude or include Kelim? (Note: 
          we said that Rav agrees that one is liable for the blow 
          in a pit in Reshus ha'Yachid! Perhaps we ask according to 
          opinion that R. Yishmael only in Reshus ha'Rabim?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Hevel can break new Kelim.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection:</font></b> We need 'and the carcass will be to him' for 
          Rava's law!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #3:</font></b> 'He will return money to its owner' includes 
          anything with an owner.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> If so, even people and Kelim should be 
          included!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> We expound 'and an ox or a donkey fell' - 'an 
          ox', but not people; 'a donkey', but not Kelim.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> According to R. Yehudah, who obligates for 
          Kelim, what does 'a donkey' come to exclude?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Rava:</font></b> This is difficult;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also, we do not know what any Tana learns from 
               'Seh' in the Parshah of an Aveidah.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>FOR WHAT KIND OF ANIMALS IS A PIT LIABLE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If an ox fell in, if deaf, insane, or a 
          child, the owner is paid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The owner of the ox is deaf, insane, 
               or a child.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rejection:</font></b> Surely, one is liable also for the ox of a 
               healthy adult!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> It means, the ox is deaf, insane 
          or (very) young.
<br>
<br>

sjt:
<font><b>1) EQUALITY OF ANIMALS</b></font><b>
<br>QUESTIONS:</b> The Mishnah teaches that all animals are the same with regard to various laws even though the Torah mentions only 'Shor' with regard to those laws: One must pay for damages done to any animal that falls into one's Bor; every animal was prohibited from approaching Har Sinai at the time of Kabalas ha'Torah; one must pay Kefel for stealing any animal; one must return any animal that was lost; one must unload any animal when it is overburdened; one is prohibited from muzzling any animal while it works; one may not interbreed any type of animal; and the prohibition of Mechamer on Shabbos applies to all animals.
</p><p>
(a) The laws of all four of the Avos Nezikin (and not only Bor) apply to damages done to any animal. However, the Mishnah does not need to mention that one must pay for damage done by Esh and Adam to any animal since the Torah does not specify 'Shor' with regard to such damages. However, the Torah <i>does</i> specify 'Shor' with regard to damages of Keren; it describes both the animal that caused the damage -- and the victim of the damage -- as a Shor. Why, then, does the Mishnah not also mention that all animals are similar with regard to liability for damages of Keren, and for receiving damages of Keren? (<b>PNEI YEHOSHUA</b>)
</p><p>
Moreover, with regard to Shen v'Regel the Torah does not write Shor but it does write 'Be'iroh,' which implies a domesticated animal. The source that one is liable for damages done by his Chayah or Of (wild animal or bird, which are non-domesticated animals) is a comparison to the laws of Shabbos, which the Gemara here discusses (see <b>TOSFOS</b> to 17b, DH Ka Mashma Lan). Why, then, does the Mishnah not also mention Shen v'Regel, just as it mentions the law of Hafrashas Har Sinai, for which the Torah writes the word 'Behemah' and the Mishnah teaches that it includes Chayos and Ofos as well?
</p><p>
(b) Why does the Mishnah write that all animals are equal with regard to Kefel and Hashavas Aveidah? These laws apply not only to animals but even to inanimate objects, and thus these laws should not be included in the list of laws for which the Torah compares a Chayah and Of to a Shor. (The Mishnah must teach that all animals are the same with regard to falling into a Bor, since one is liable only for animals that fall into a Bor but not for Kelim. Kefel and Hashavas Aveidah, in contrast, apply to <i>all</i> items, animals and Kelim alike.)
</p><p>
In fact, the Mishnah does not compare <i>fish</i> to animals and birds with regard to the laws that it mentions. According to one answer in Tosfos (55a, DH ha'Manhig), fish are indeed <i>not</i> included in these laws (except for the law of Kil'ayim, for which the Torah explicitly includes them; see Gemara there, 55a). (The reason for this exclusion seems to be that it is unusual for a fish to do any of the acts in the Mishnah, for those acts are normally done only on land.) With regard to Geneivah and Hashavas Aveidah, it is obvious that one must return fish just as he must return any object that he steals or finds. Why does the Mishnah include those laws in the Mishnah if they have nothing to do with animals? (<b>SHITAH MEKUBETZES</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>PNEI YEHOSHUA</b> answers that all animals are not similar with regard to damages of Keren. The Mishnah (15b) teaches that certain animals are 'Mu'adin mi'Techilasan,' they are Mu'ad from the start and have no stage at which they are a Tam. Therefore, the Mishnah does not want to equate all animals with regard to Keren.
</p><p>
Similarly, with regard to being damaged, all animals are not equal. If an animal is Mu'ad for goring one particular type of animal, when it gores a different type of animal its owner pays only as though it were a Tam. That is why the Mishnah does not list Keren.
</p><p>
However, this answer is problematic. <b>TOSFOS</b> (16a, DH veha'Nachash) writes that even a wild animal, like a lion, indeed can be a Tam, such as in a case in which it causes damage in an unusual way (as the Gemara on 16b teaches). Also, with regard to the animal that is damaged, all animals <i>are</i> equal since the Shor ha'Mazik must be a Mu'ad for that particular animal in order for the owner to be obligated to pay in full. If the Shor is not a Mu'ad for that particular animal, the owner pays only Chatzi Nezek. For this reason, the Mishnah should include these cases as well!
</p><p>
This approach also does not answer why the Mishnah does not mention that Shen v'Regel apply to all animals.
</p><p>
Perhaps the reason why the Mishnah does not mention that all animals are the same with regard to Keren and Shen v'Regel is that the Mishnah earlier (15b, 17b, and 21b) already teaches that one is liable for damages done by one's Chayah or Of. Although the Mishnah later (62b) teaches that one pays Kefel for any stolen object, since no earlier Mishnah mentions it before the present Mishnah, the present Mishnah includes law of Kefel in its list.
</p><p>
With regard to the animal that sustained damage through Keren, there seems to be another reason why the Mishnah does not need to specify that all animals are equal. It seems that no source is necessary to teach that one is liable for the damage caused by his Shor, regardless of what type of animal is damaged. The source cannot be from the laws of Shabbos, because the laws of Shabbos would teach only that one is liable for damages done to an animal but not for damages done to inanimate objects, while one is liable for damages of Shor (Keren) done to any object.
</p><p>
It must be that the source for the obligation to pay for damages done to any object is based in logic, since there is no logical distinction between requiring that a person be reimbursed for damages done to his animal and requiring that he be reimbursed for damages done to any other property of his.
</p><p>
In contrast, with regard to the animal that <i>caused</i> the damage, or any of the mentioned in the Mishnah, it <i>would</i> have been possible to suggest that one is liable only for a Shor (or other common Behemah), since such an animal is more common. The Torah would not obligate a person for damage caused by animals that are less common, since the Torah does not need to address that unusual situation in order to prevent unwarranted damage from occurring on a daily basis.
</p><p>
(This applies even to Kefel, since it is a Kenas and not just a reimbursement, and to Aveidah, since a person is obligated to return the item even though he had no involvement in taking the item away from the owner in the first place. Nezikin, in contrast, which involve a simple <i>reimbursement</i>, logically should apply equally to all objects; since the Torah <i>does</i> address damages caused in such a manner, the reimbursement that it calls for therefore applies to any object at all that is damaged in such a manner -- i.e. through Keren.)
</p><p>
(b) The <b>RA'AVAD</b> (also cited by the Shitah Mekubetzes) writes that the Mishnah mentions Kefel and Hashavas Aveidah only to teach that in those cases as well, when the Torah uses the word Shor it does not mean to limit the Halachah to a Shor. The verse which teaches that these laws apply to all other animals indeed teaches that these laws apply to inanimate objects as well (and certainly to fish). The words at the end of the Mishnah, 'this applies to Chayos and Ofos as well,' are not addressing Kefel and Hashavas Aveidah, since these laws indeed apply to inanimate objects as well.
</p><p>
(This is in agreement with the approach mentioned above, since if the verse had not included all animals, one might have thought that the laws of Kefel and Hashavas Aveidah apply only to animals that are commonly lost or stolen. That is why the Mishnah needs to include Kefel and Hashavas Aveidah in its list of laws that apply to all animals.)
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If the ox was healthy, would the pit's owner 
          be exempt?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (R. Yirmiyah):</font></b> The Mishnah teaches a bigger 
          Chidush.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One is liable not only for a healthy ox. Rather, 
               he is liable even for a deaf, insane or young ox;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One might have thought that its deficiency caused 
               it to fall, and one is exempt for it. The Mishnah 
               teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (R. Acha - Beraisa):</font></b> If one with Da'as 
          (understanding) fell in, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This refers to a sane ox.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Ravina):</font></b> No, it refers to a sane person.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (R. Acha):</font></b> This connotes that one is liable if 
          an insane person falls in. The verse says 'an ox', not a 
          person!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Ravina):</font></b> Rather, the Beraisa means that if 
          one of the species of those with Da'as (i.e. a person) 
          fell in, he is exempt.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection (R. Acha - Beraisa):</font></b> If an ox with Da'as fell 
          in, he is exempt.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (to Question (d) - Rava):</font></b> Indeed, one is 
          liable only for an ox that is deaf, insane or young. If 
          the ox was healthy, the pit's owner is exempt.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> The ox should have watched where it is walking.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> If an ox is deaf, insane, young, 
          blind or walking at night, the pit owner is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the ox was healthy and fell in during the day, 
               he is exempt.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LAWS THAT APPLY TO ALL ANIMALS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The following apply to all Behemos (domestic 
          animals), Chayos (wild animals) and fowl:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Falling into a pit;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Mitzvah to keep animals from ascending Mount 
               Sinai (when the Torah was given);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The double payment of a thief;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Returning a lost animal;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Unloading an animal;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Muzzling an animal;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Working with or crossbreeding diverse species;
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Making it work on Shabbos.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	The Torah said 'ox' or 'donkey', for this is the usual 
          case.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara):</font></b> Regarding a pit we learn from 'he will return 
          money to its owner' - anything with an owner.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Regarding ascending Mount Sinai it says 'whether 
          Behemah or man, it will not live';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Behemah' includes wild animals. 'Whether' 
               includes fowl.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Regarding the d2, payment of a thief it says 'for any 
          matter of transgression';
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Regarding returning a lost animal it says 'for any 
          Aveidah of your brother';
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	We learn about unloading from a Gezeirah Shavah 
          'Chamor-Chamor' from Shabbos;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	We learn about muzzling from a Gezeirah Shavah 'Shor-
          Shor' from Shabbos;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	We learn about working with diverse species from a 
          Gezeirah Shavah 'Shor-Shor' from Shabbos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We learn about crossbreeding diverse species from 
               a Gezeirah Shavah 'Behemah-Behemah' from Shabbos.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>HOW WE DERIVE THAT THE LAWS OF SHABBOS APPLY TO ALL ANIMALS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> How do we learn regarding Shabbos?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Beraisa - R. Yosi):</font></b> In the first version of the 
          10 Utterances (in Shemos), it says 'your male slave, 
          female slave and Behemah.' In the second version (in 
          Devarim), it says 'your ox, donkey and all your Behemos'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> 'Behemah' includes oxen and donkeys. 
               Why were they explicitly mentioned?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> This teaches that just like regarding 
               Shabbos, it says 'ox and donkey' but the law applies 
               to Chayos and fowl, also whenever they are mentioned 
               in the Torah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> We should say that 'Behemah' of the first 
          version (of the Utterances) is a Klal, 'ox and donkey' 
          of the second version is a Prat. From a Klal u'Frat, we 
          only learn the Prat, an ox or donkey!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> 'And all your Behemos' of the second version 
          is another Klal. From a Klal u'Frat u'Chlal we learn 
          everything that is like the Prat, in our case, living 
          things.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> For both Peratim, their carcasses 
          impart Tum'ah through touching or moving - we should only 
               learn such things (but not birds)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> If so, the Torah should only have 
               written one Prat. (Since it wrote two, we also 
               include birds.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Which one should it have written?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had it written only 'ox' - one might have thought 
                    that we only include animals that are offered 
                    on the Mizbe'ach!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Had it written only 'donkey' - one might 
                    have thought that we only include animals whose 
                    firstborn have Kedushah!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2:</font></b> 'And all your Behemos' is an inclusion.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Does 'all' always denote an inclusion?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding Ma'aser Sheni it says 'all', yet we 
               expound regarding the method of Klal u'Frat!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> 'You will spend the money on whatever 
                    your soul desires' - Klal; 'on cattle, flock, 
                    wine and strong drink' - Prat; 'and on all 
                    that your soul requests' - Klal;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  From a Klal u'Frat u'Chlal we learn 
                    everything that is like the Prat - whatever 
                    reproduces and grows from the ground.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1:</font></b> 'On all' is a Klal; 'all' is an inclusion.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Normally, 'all' is a Klal; by Shabbos, it 
          is an inclusion;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because the Torah should have written 
               'Your animals', just like it wrote regarding the 
               first version; regarding adding 'all', it comes as 
               an inclusion.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What do we learn from 'Behemah' of the first 
          version and 'ox and donkey' of the second version?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Each is used for a Gezeirah Shavah (like above, 
          3:g,h,and i).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Since we learn the Isur of working with 
          diverse species from Shabbos, man should be (like a 
          different species and) forbidden to work with animals 
          (since regarding Shabbos, slaves are equated to animals), 
          but this is not so!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Man may plow or pull with any animal.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> '(You and your animals will not do 
          Melachah...) in order that your slaves will rest like 
          you' equates slaves to animals only regarding resting.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE SYMBOLISM OF 'GOOD'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Chanina ben Agil):</font></b> Why was 'good' said in 
          the second version of the 10 Utterances, but not in the 
          first?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	R. Chiya bar Aba:</font></b> I am not sure whether 'good' was 
          said! (Perhaps the version in Parshas va'Eschanan does 
          not correspond to what was actually written on the second 
          tablets. See Kollel Iyun Hadaf, Insights to the Daf.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (R. Tanchum bar Chanilai):</font></b> It was because the 
          first Tablets would be broken.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Is that a reason not to say 'good'?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> Hash-m did not want a Siman (omen) 
          that 'good' would cease from Yisrael.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Yehoshua ben Levi):</font></b> If one sees the letter 'Tes' 
          (the first letter of Tov (good)) in a dream, this is a 
          good Siman.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Also some ominous verses begin with 'Tes'!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The first 'Tes' in the Torah is in the word 
          'good'.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Yehoshua ben Levi):</font></b> If one sees eulogy in a dream, 
          this shows that he should have died, but Hash-m had mercy 
          and saved him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This applies only when the word was written.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>BEASTS AND BIRDS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The laws apply also to Chayos and birds.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> Our Mishnah teaches that chickens, 
          peacocks and partridges are forbidden together.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Chaviva):</font></b> One might have thought that since 
          they grow up together, they are one species. Reish Lakish 
          teaches that is not so.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Geese and wild geese are forbidden together.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rava bar Rav Chanan):</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is because one has a long neck 
               (Aruch; Rashi - beak), and the other's is short.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, Persian and Arabian camels should 
               also be forbidden together, for one has a long neck, 
               and the other's is short!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> It is because the testicles of one 
          are seen externally, and the other's are not.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> One carries only one egg at a 
          time, and the other carries many at a time.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Yirmiyah):</font></b> One who mates diverse species of sea-
          creatures is lashed.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Ada bar Ahavah):</font></b> We learn a Gezeirah Shavah 
          'l'Minehu-l'Minehu' from land animals.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Rachbah):</font></b> May one use a goat and a fish to 
          pull together?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since goats never go in the sea, and fish never 
               go on the land (so they will not mate together), it 
               is permitted;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since he works with them, it is forbidden.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> (If this were forbidden,) would one 
          be liable for planting wheat and barley near each other, 
          one in Eretz Yisrael and the other in Chutz la'Aretz?!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> That is different. One is liable for planting 
          diverse seeds only in Eretz Yisrael, but the Isur to work 
          with different species applies on land and in water!
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN THE FIRST SET OF 'LUCHOS' AND THE SECOND</b></font><b>
<br>QUESTION:</b> Rebbi Chanina ben Agil asked Rebbi Chiya bar Aba why, in the first set of Luchos, there is no mention of 'Tov,' while in the second set of Luchos, 'Tov' is mentioned (in the commandment to honor one's parents, 'l'Ma'an Yitav Lach'). Rebbi Chiya bar Aba responded that instead of asking why it mentions 'Tov,' one should ask whether it says 'Tov' altogether, and he sent Rebbi Chanina ben Agil to Rebbi Tanchum bar Chanilai.
</p><p>
Rebbi Chanina ben Agil said that he heard from Shmuel bar Nachum that the reason why 'Tov' is not mentioned in the first Luchos is that the first Luchos were destined to be broken, and Hash-m did not want the 'Tov,' the good destined for the Jewish people, to be 'broken' with the Luchos.
</p><p>
This Gemara is perplexing. How could the Amora, Rebbi Chiya bar Aba, say that he did not know whether or not the Torah says 'Tov' in the second set of Luchos? Every Amora certainly knew the verses in the Torah, and even if, for some reason, he did not know the verse, he simply could have looked it up. What does the Gemara mean when it says that Rebbi Chiya bar Aba said that he did not know whether the Torah says 'Tov' in the second set of Luchos? (See <b>TOSFOS</b> to Bava Basra 113a, DH Tarvaihu.)
</p><p>
Moreover, the Gemara answers that it does not say 'Tov' in the first Luchos since those Luchos would eventually be broken, and if 'Tov' would be written in them the Jewish people would, Chas v'Shalom, lose that Tov. This implies that the verses in Parshas Yisro and in Parshas Va'eschanan discuss two separate sets of Luchos. The verses in Parshas Yisro describe what was written on the set of Luchos which Moshe Rabeinu received on Shavuos, which were broken on the seventeenth of Tamuz when Moshe Rabeinu descended the mountain and found the people worshipping the Egel ha'Zahav. The verses in Parshas Va'eschanan describe what was written in the second set of Luchos, which Moshe Rabeinu brought down to the Jewish people on the following Yom Kippur. The same conclusion may be drawn from the Pesikta Rabasi (beginning of Parshah 23), which implies that the description in Parshas Yisro is that of the first Luchos, while the description in Parshas Va'eschanan is that of the second Luchos. The Pesikta Rabasi addresses the fact that in the first account of the Aseres ha'Dibros it says, '<i>Remember</i> (Zachor) the Sabbath day,' while in the second account it says, '<i>Keep</i> (Shamor) the Sabbath day.' The Pesikta explains that the word 'keep' is used in order to teach that the Jewish people were instructed that only through 'keeping' the Shabbos would they succeed in 'keeping' the second Luchos from being lost like the first Luchos. Here, too, the implication is that the account of the Aseres ha'Dibros in Va'eschanan records the text of the <i>second</i> Luchos, while the account in Yisro describes the text of the <i>first</i> Luchos.
</p><p>
However, the verses in both places clearly seem to describe the same set of Luchos -- those that Moshe Rabeinu received on Shavuos. The Aseres ha'Dibros of Va'eschanan are introduced with the words, 'Hash-m spoke to you face to face on the mountain, from the midst of the fire. I stood between Hash-m and you... to tell you the word of Hash-m' (Devarim 5:4-5). This clearly seems to be a description of the oral delivery of the <i>first</i> Luchos amidst the spectacle of thunder and lightning and loud blast of the Shofar, in the presence of the entire congregation of Yisrael (as described in Shemos 20:14-17). Such details do not accompany the delivery of the second Luchos, which Moshe himself brought down for the Jewish people upon his return from Har Sinai (as described in Shemos 34:28-29 and Devarim 10:4-5).
</p><p>
The Rishonim address the differences between the two accounts with a common approach. When Moshe reviewed the Aseres ha'Dibros for the people, he added several explanatory comments of his own to the original wording. The Va'eschanan-version is Moshe's rewording of the Aseres ha'Dibros (<b>IBN EZRA</b> to Shemos 20:1, <b>RAMBAN</b> to Shemos 20:8, and others). This seems to be the approach of the Gemara in Shevuos (20b) as well.
</p><p>
What, then, is the meaning of the Gemara here, and of the statement of the Pesikta Rabasi, which imply that the Aseres ha'Dibros quoted in Va'eschanan is a description of the giving of the <i>second</i> Luchos? 
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>VILNA GA'ON</b> (in Chidushei Agados) explains that Rebbi Chanina ben Agil understood that 'l'Ma'an Yitav Lach' refers to reward in this world, since the phrase 'l'Ma'an Ya'arichun Yamecha' in the same verse (Devarim 5:16) already includes reward in the World to Come. Rebbi Chanina wondered why the first version of the Aseres ha'Dibros does not include this promise of reward in this world. 
</p><p>
Rebbi Chiya bar Aba replied that he is not sure whether 'l'Ma'an Yitav Lach' indeed refers to reward in this world. Perhaps these words refer to reward in the World to Come, as Rebbi Yakov says in Kidushin (39b). He therefore sent Rebbi Chanina to Rebbi Tanchum in order to clarify this point. Rebbi Tanchum agreed that the verse indeed promises reward in this world, but it was not written in the Luchos in order that the promise not be shattered along with the Luchos, symbolizing the loss of all good in this world.
</p><p>
In the second version of the Aseres ha'Dibros this promise of reward <i>does</i> appear. This promise shows that Hash-m intended to reward the performance of the Mitzvah of Kibud Av va'Em with a promise of good in this world as well, even though it was not written explicitly in the Luchos because of the reason that Rebbi Tanchum gave.
</p><p>
(b) The <b>PNEI YEHOSHUA</b> explains that the fact that the words 'l'Ma'an Yitav Lach' were not written in Parshas Yisro but were included in Parshas Va'eschanan teaches one of two things: it either teaches that although they were not written in the Luchos, Hash-m nevertheless said those words, or it teaches that they were not written on the Luchos and Hash-m did not say them, but Moshe Rabeinu added those words in explanation of the Aseres ha'Dibros (as the Ibn Ezra explains). Rebbi Chiya bar Aba meant that he did not know which of these two options is correct -- did Hash-m actually say 'l'Ma'an Yitav' or was it an explanation added by Moshe Rabeinu? Rebbi Chiya bar Aba, therefore, could not answer the question of Rebbi Chanina, because the answer would differ depending on whether Hash-m spoke the words of 'l'Ma'an Yitav Lach,' and Rebbi Chiya bar Aba was uncertain about this. He therefore sent Rebbi Chanina to Rebbi Tanchum, who answered that the words 'l'Ma'an Yitav Lach' were not written in the Luchos in order to prevent their loss with the breaking of the Luchos (and that is why they do not appear in Parshas Yisro). However, the words <i>were</i> spoken by Hash-m even though they were not written in the Luchos.
</p><p>
(A similar answer can be found in <b>HA'MIKRA V'HA'MESORAH</b> of <b>RAV REUVEN MARGOLIOS</b>, and in <b>EMES L'YAKOV</b> of <b>RAV YAKOV KAMINETSKY</b>, Parshas Va'eschanan 5:12, who calls the words that Hash-m spoke but did not write in the Luchos, 'Kri v'Lo Kesiv.')
</p><p>
According to the Pnei Yehoshua, the Gemara does not mean that the second version of the Aseres ha'Dibros refers to the second set of Luchos, but rather both refer to the first set that Moshe Rabeinu brought down on Shavuos.
</p><p>
(c) According to the approach of the Pnei Yehoshua, perhaps even according to Rebbi Tanchum Hash-m did not say the words 'l'Ma'an Yitav Lach.' Rebbi Tanchum is explaining two points: why Hash-m did not promise 'l'Ma'an Yitav Lach' verbally, and why He did not include it in the Luchos in written form, when the Luchos were given.
</p><p>
It remains to be explained in what manner the Jewish people would have lost 'all good' had 'l'Ma'an Yitav Lach' been shattered together with the Luchos. Perhaps according to the above explanation, this Agadah may be understood as follows.
</p><p>
Why did Moshe Rabeinu feel the need to add explanatory remarks in the second account of the Aseres ha'Dibros? If the people understood the Aseres ha'Dibros the first time, why should they now require further explanation, forty years later? Moreover, what explanation is actually added by the numerous changes that Moshe Rabeinu made?
</p><p>
The Torah relates that when Hash-m saw the Jewish people's awe-filled reaction to His revelation, He said to Moshe, 'Who would make it possible that the Jewish people would fear Me like this and keep all of My commandments all the days? Then they and their children would have good forever!' (Devarim 5:26). The Gemara in Avodah Zarah (5a) teaches that at that moment the Jewish people should have responded immediately to Hashem's remark by exclaiming, '<i>You</i> make it possible for us!' Hash-m had given them a cue to declare their desire for Him to draw them closer, but they failed to grasp the hint.
</p><p>
Why did Moshe Rabeinu deem it fit to mention this comment of Hashem's at this point, and not in Shemos in the context of the original narration of the revelation at Har Sinai? The Gemara explains that it was only at this time, forty years after the revelation, that Moshe realized that Hash-m gave this opportunity to the Jewish people. As the Gemara puts it, 'A student does not fully understand the intent of his master's words until forty years after he has heard them.'
</p><p>
Perhaps such an explanation may answer the questions above as well.
</p><p>
The matter may be elucidated by a parable. Once there was a father who intended to send his son off to school in a distant city. However, he had a relative in that city who was involved in all sorts of illegal schemes. The father suspected that the relative would try to lure his son away from earning an honest livelihood by enticing him with seductive, illegal offers. Naturally, the father wanted his son to avoid this relative at all costs. However, he knew that it would be counterproductive for him to give explicit instructions to his son to refrain from meeting the man, as such instructions would only arouse the boy's curiosity concerning the relative. The young man, suspecting some secret family feud, might even acquaint himself with the villain rather than shun him. Moreover, the son might feel insulted that his father showed such lack of confidence in his own judgment, making him unreceptive to the father's advice. Instead, the father offered his son several general, indirect suggestions: Do not keep company with a person whose integrity is in doubt; do not be eager to accept monetary offers from strangers; do not become taken in with seemingly easy schemes for making large amounts of money, etc. He hoped that through this kind of indirect counsel, the son would realize when the time of temptation would arrive that he should keep his distance from the relative.
</p><p>
This parable symbolizes the circumstances of the Jewish people at the time of the giving of the Torah. Hash-m knew that His children would soon face challenging situations and that their loyalty to Him would be put to the test. In fact, only forty days after the Torah was given, the incident of the Egel ha'Zahav took place right at the foot of Har Sinai. It was this incident which caused the loss of the first Luchos and which was destined to cause the Jews so much suffering and misfortune in the future (see Rashi to Shemos 35:34; Parashah Page, Balak and Tish'ah b'Av 5755). As the Mishnah says, 'Everything is foreseen [by Hash-m]' (Avos 3:15) -- the past, present, and future are one to the Creator.
</p><p>
Perhaps Hash-m wanted to give His people some veiled warnings of the trials that awaited them. In this way, when the pitfall of the Egel ha'Zahav would present itself, perhaps the Jews would reconsider before they sin and would realize that Hash-m had cautioned them to beware of falling into such a trap. The Giver of the Law therefore implanted several tacit hints into the wording and nuances of the Aseres ha'Dibros. However, the intent of these hidden messages was lost on the people. Even Moshe Rabeinu himself did not grasp these subtle allusions until forty years later -- in hindsight, after the people's sin at Sinai was already history.
</p><p>
It took Moshe Rabeinu forty years to understand that the people had forever lost their opportunity to declare, '<i>You</i> make it possible for us not to sin!' At the same time, Moshe realized that Hash-m had been trying to give them the advice they would need to avoid sinning. Now, while he was delivering his farewell address of admonishment and warning to the Jewish people, he pointed out to them the several gentle warnings that Hash-m Himself had provided in the Aseres ha'Dibros.
</p><p>
Let us examine some of the differences in the wording of the two versions of the Aseres ha'Dibros and see how they can be explained according to this theory.
</p><p>
A reference to the Egel ha'Zahav may be found in the fourth commandment. In the Shemos-version, the fourth commandment enjoins the Jewish people to refrain from all Melachah on Shabbos -- 'you, your servant, your maidservant and your animals.' In Devarim this is rephrased as 'you, your servant, your maidservant, <i>your ox, your donkey, and all</i> your animals' (Devarim 5:14). Why are several examples of particular animals added?
</p><p>
The reason why Hash-m told the people to extend the Shabbos rest to their animals, Moshe Rabeinu now realized, was that there might have been an inclination among the people to accord a revered status -- or perhaps some element of divinity -- to some animals, thus exempting them from participating in Hashem's ordained day of rest. For this reason Hash-m stressed that animals, too, must rest. In order to emphasize this point, Moshe Rabeinu now rephrased this sentence to explicitly equate the <i>ox</i> with all other animals as far as the day of rest is concerned. As Moshe Rabeinu explained, Hash-m hinted that the people should not bestow any form of veneration on any animal, particularly on the ox which He knew would soon become a snare for the people.
</p><p>
The phrase '<i>as Hash-m had commanded you</i>' is found twice in the second version of Aseres ha'Dibros -- in the fourth and fifth commandments, the commandment to observe Shabbos (verse 12) and the commandment to honor one's parents (verse 16). This phrase is not mentioned at all in the first version. Since Moshe Rabeinu was paraphrasing the words of Hash-m that were said at the time of the giving of the Torah, the words, 'as Hash-m had commanded you,' must mean that Hash-m had commanded these two laws some time prior to the revelation at Har Sinai. As the Torah relates (Shemos 16:25), the Jewish people were indeed given a series of laws at Marah several weeks before they arrived at Sinai, and Shabbos and honoring one's parents were among these laws (Rashi, ad loc.). Why, though, did Moshe Rabeinu need to remind the people of the episode at Marah?
</p><p>
Moshe Rabeinu realized now that the reason why Hash-m chose to prelude the giving of the Torah with these two Mitzvos, from all of the hundreds of other Mitzvos, was that He wanted the people to become accustomed to them even before their arrival at Har Sinai. These two precepts would prepare them, more than any other, to withstand the test that would face them there. What quality was unique to these two Mitzvos?
</p><p>
The Gemara teaches that the Mitzvah of Shabbos observance is considered as important as the observance of all the other Mitzvos combined. The same is said for the Mitzvah of refraining from idolatry (Eruvin 69b). The reason for this important emphasis on the Mitzvah of Shabbos is that the observance of Shabbos constitutes a declaration that one believes in Hash-m as the Creator of the universe.
</p><p>
Similarly, the Gemara teaches that honoring one's parents is tantamount to honoring Hash-m Himself (Yevamos 5a). (Recognizing one's indebtedness to his parents for having brought him into the world brings a person to a recognition of Hash-m.) In fact, the Gemara in Berachos (35b) says that 'father' and 'mother' may sometimes be understood to mean 'Hash-m' and 'the Congregation of Yisrael,' respectively. Thus the commandment to honor one's father, if expanded to its broadest scope, will bring one to show honor to Hash-m as well.
</p><p>
These two Mitzvos -- Shabbos and honoring one's parents -- had the power to strengthen the Jews' trust in Hash-m. According to the Rashbam, this is why these are the only two positive Mitzvos included in the Aseres ha'Dibros. The only Mitzvos included are those that involve accepting upon ourselves the yoke of the service of Hash-m. That must be the purpose of the Mitzvos of observing the Shabbos and honoring one's parents as well (Rashbam, Shemos 20:7).
</p><p>
Moshe Rabeinu now realized that these two Mitzvos were given to the people before their time, so to speak, because of the important lesson they were intended to impart concerning the honor due to Hash-m. In fact, the Chachamim teach that had the Jews observed their first Shabbos properly, they never would have been exiled from their land (that is, they would not have sinned with the Egel ha'Zahav, which caused their eventual exile). The Gemara adds that even the worst idol-worshippers are absolved if they observe the Shabbos day (Shabbos 118b). Moshe Rabeinu now understood that the early start the Jews were given in these two Mitzvos was for the same reason that specifically these two positive commandments were chosen to be included in the Aseres ha'Dibros. This is why he mentioned the fact that the people had been forewarned of these Mitzvos in the second version of the Aseres ha'Dibros.
</p><p>
The Gemara may now be understood as follows. The Gemara says that the reason why the words 'l'Ma'an Yitav Lach' (in the fifth commandment, honoring one's parents) were not written in the first Luchos was so that this promise for Hashem's goodness not be broken along with the Luchos. The lesson of 'l'Ma'an Yitav Lach' -- 'so that it will be good for you' (that is, this Mitzvah will help the Jewish people merit the eternal good of Olam ha'Ba and not only Olam ha'Zeh, since it will help them avoid the terrible sin that tempted them) was <i>implicit</i> in the text of the Aseres ha'Dibros, as Moshe Rabeinu himself pointed out in the Va'eschanan-version of the Aseres ha'Dibros. They were not stated <i>explicitly</i> in the Luchos, for had they been stated explicitly -- and the people would have sinned in spite of the explicit warning -- they would have lost the promise to attain any 'goodness' forever. Their sin would have been so grave that they would have lost any chance of ever attaining the ultimate good.
</p><p>
The Pesikta quoted earlier says that the word used for Shabbos observance in Va'eschanan is '<i>Keep</i> (or be careful of) the Shabbos day,' which implies that the Jewish people should <i>keep</i> these Luchos and not lose them as they did the first ones. Perhaps this change may be explained in a similar manner. It is not that the second Luchos actually included the word '<i>Keep</i> the Shabbos day.' Rather, Moshe Rabeinu -- when he recounted what was written on the <i>first</i> Luchos -- pointed out to the people why the commandment of observing the Shabbos day was included in the Luchos. 'Keeping' (i.e. observing) the Shabbos was the key to 'keeping' the Torah permanently. Moshe Rabeinu used the word 'keep' when he retold the events of the first Luchos in order to emphasize this message to the Jewish people. Observe the Shabbos properly, he said, and you will never again come into a situation where the Torah will become lost to you.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<b>PEREK HA'KONES</b>
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>GUARDING PROPERLY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven brought his flock into a Dir (a 
          fenced off area for animals to fertilize the land) and 
          locked in front of them properly; and they got out and 
          damaged, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he locked in front of them improperly and they 
               went out and damaged, he is liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If the wall broke at night, or if thieves broke it and 
          an animal went out and damaged, he (and the thieves) are 
          exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If thieves took it out and it damaged, the 
               thieves are liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If Reuven left an animal in the sun, or gave it over to 
          a Cheresh (deaf-mute), lunatic or child to watch and it 
          got out and damaged, he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he gave it over to a shepherd to watch, the 
               shepherd is liable in place of Reuven.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If it fell into a garden and benefited, Reuven pays for 
          the benefit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it went down normally and damaged, Reuven pays 
               for the damage.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	To evaluate the damage, we estimate how much a Beis 
          Se'ah of the field was worth, and how much it decreased 
          due to the damage to the one patch. (A Beis Se'ah is the 
          area in which a Se'ah (about 12 liters) of seed are sown, 
          i.e. 50 Amos by 50 Amos.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Shimon says, if it ate finished fruit, it pays for 
          finished fruit. If it ate one Se'ah, it pays for one 
          Se'ah. If it ate two Sa'im, it pays for two Sa'im.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Gemara - Beraisa) Question:</font></b> What is considered proper 
          guarding?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> A door that can stand in a normal wind is 
          proper. If it cannot stand in a normal wind, this is 
          improper.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Mani bar Patish):</font></b> Our Mishnah is like R. Yehudah, 
          who says that a poor guarding suffices for a Mu'ad.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Meir):</font></b> If Reuven tied his ox with a 
               rope, and locked in front of it properly, and it 
               escaped and damaged, he is liable, whether it is a 
               Tam or Mu'ad;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, a Tam is liable, and a Mu'ad is 
               exempt. It says 'if he will not guard it', and this 
               is guarded!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Elazar says, a Mu'ad cannot be guarded, it 
               must be killed.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection:</font></b> The Beraisa can even be like R. Meir. Shen 
          and Regel are different, for the Torah said that they 
          need not be guarded so well.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> The Torah minimized the guarding 
               needed for four things: a pit, fire, Shen and Regel.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It says about a pit 'if a man will open a pit or 
                    dig a pit and not cover it.' Had he covered it, 
                    he would be exempt;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  It says about fire 'the one who burned will 
                    pay' - only if he was (negligent) like one who 
                    burns;
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  It says about Shen 'it consumed in 
                    another's field' - he is liable only if it is 
                    as if he made it consume;
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b>  It says about Regel 'and he sent' - only if 
                    he is like one who sent.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'And he sent' is Regel - 'sending the Regel 
          of oxen and donkeys'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'And it will consume' is Shen - 'like the Galal 
               (tooth) will consume'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He is liable only if it is like one who sent and 
               consumed.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rabah):</font></b> We may also derive this from our Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Until now, the Mishnayos discussed an ox. In our 
               Mishnah it switched to 'flock' (which do not gore, 
               they only damage through Shen and Regel);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Torah said that a weak guarding suffices, 
               even though (others explain - because) they are 
               Mu'ad from the beginning.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>LIABILITY B'YEDEI SHAMAYIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Yehoshua):</font></b> There are four things for 
          which one is exempt b'Yedei Adam, but liable b'Yedei 
          Shamayim:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Breaching a fence in front of Reuven's animal;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Bending Reuven's crop in front of a fire (so it 
               will burn);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Hiring false witnesses;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Not testifying when one knows testimony that 
               could help Reuven.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of breaching a fence in 
          front of Reuven's animal?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the fence is strong, he is liable b'Yedei Adam 
               (for the fence)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, the fence is weak.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LIABILITY B'YEDEI SHAMAYIM (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of bending Reuven's crop in 
          front of in a fire?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a normal wind can cause the fire to reach 
               where he bent it, he is liable b'Yedei Adam !
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, he bent it to where an abnormal wind 
          can make the fire reach.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> The case is, Shimon's fire was 
          destined to burn Reuven's crop, and Levi covered it so it 
          is hidden, and Shimon was exempt for it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of hiring false witnesses?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he hired them for his own benefit, Beis Din 
               makes him return what he improperly gained through 
               them!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, he hired them to testify for Ploni 
          (someone else, and we cannot make Ploni pay).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of not testifying when he 
          knows testimony that could help Reuven?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If another witness knows, the Torah explicitly 
               holds him accountable b'Yedei Shamayim (for Reuven 
               could collect through their testimony) - 'if he will 
               not testify, he will bear his sin'!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, no other witness knows. (Had he 
          testified, Reuven's opponent would have needed to swear 
          or pay. Perhaps he would have paid to avoid )
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> There are other cases!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven did work with Shimon's red 
               heifer, or with his water destined to be sanctified 
               with ashes of a red heifer (this disqualifies them), 
               he is exempt b'Yedei Adam, but liable b'Yedei 
               Shamayim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Levi put poison in front of 
               Yehudah's animal, he is exempt b'Yedei Adam, but 
               liable b'Yedei Shamayim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven sent a fire with a Cheresh, 
               lunatic or child, he is exempt b'Yedei Adam, but 
               liable b'Yedei Shamayim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven scared Shimon (and Shimon 
               became deaf through this), he is exempt b'Yedei 
               Adam, but liable b'Yedei Shamayim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If his jug broke and he did 
               not clear away the fragments, his camel fell, and he 
               did not stand it up, he is liable for damage that 
               they caused;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chachamim say, he is exempt b'Yedei Adam and 
                    liable b'Yedei Shamayim.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, there are more cases. R. Yehoshua 
          taught these cases, for one might thought that he is 
          exempt even b'Yedei Shamayim:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He breached (in front of an animal) a wall that 
               (was prone to fall, so) the owner was obligated to 
               knock it down;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One who bent Reuven's crop in front of a fire can 
               say that he did not expect an abnormal wind;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  According to Rav Ashi, he covered the crop in an 
                    attempt to save it;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> One who hired false witnesses can say 'they 
               should not have obeyed me to transgress Hashem's 
               Mitzvos!'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> One who did not testify can say 'perhaps it would 
               not have helped, and your opponent would have sworn 
               falsely.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Yehoshua teaches that this is not so. In all 
               these cases, he is liable b'Yedei Shamayim.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ANIMALS THAT ESCAPED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the wall broke at night, or if thieves 
          broke it... (the owner is exempt).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rabah):</font></b> The case is, the animal tunneled under it (and 
          broke the wall and left through the opening).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Inference:</font></b> Had it not tunneled, he would be liable.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the wall is strong, why should he be liable? 
               What more could he do?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The wall is weak.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why is he exempt when it tunneled? He was 
          negligent at the beginning, and Ones at the end!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like the opinion that exempts one who was 
               negligent at the beginning and Ones at the end;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to the opinion that obligates, how can 
               we answer?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The wall is strong. He is exempt even if it 
          did not tunnel. Rabah discussed the Seifa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa):</font></b> If Reuven left it in the sun... he is 
               liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rabah):</font></b> He is liable even if the animal tunneled 
               under the wall.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  When the animal did not tunnel, obviously he is 
                    liable. It is all due to negligence;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  When it tunneled, one might have thought 
                    that he was negligent to start and Ones at the 
                    end (and is exempt according to one opinion). 
                    Rabah teaches that this is not so. It is all 
                    due to negligence.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'>  Answer:</font></b> When one leaves it in the sun, it 
                    will do anything needed to escape.
<br>
<br>


lvr: 41
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CAUSING AN ANIMAL TO DO DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If thieves took out an animal and it 
          damaged, the thieves are liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious! Since they took it out, they 
          are fully responsible for it!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, they did not take it out. They 
          stood in front of it, and let it go only to the place 
          where it damaged.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> If Reuven put Shimon's animal in front 
               of Levi's crop, he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> This is obvious!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> The case is, he did not pull it. He 
               stood in front of it, and let it go only to Levi's 
               crop.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2 (Abaye):</font></b> He hit it with a stick, 
               causing it to go to Levi's crop.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The thieves hit it with a stick, in order to 
          acquire it through Meshichah.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE SHOMER IS LIKE THE OWNER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven handed his animal over to a 
          shepherd (Shimon), Shimon is in his stead...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> In whose stead is he?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he is in Reuven's stead, another Mishnah 
               already teaches this!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If he gave it over to a Shomer Chinam 
                    (one who guards a deposit for free), a 
                    borrower, a Shomer Sachar (he is paid to guard 
                    it), or renter, the Shomer is like the owner.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, if a Shomer (Levi) handed the animal 
          over to Shimon, Shimon is in Levi's stead, and Levi is 
          exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 - Suggestion:</font></b> This refutes Rava!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> If a Shomer (Levi) handed over to another 
               Shomer, Levi is liable.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (for Rava):</font></b> The Mishnah discusses handing over 
          to an apprentice shepherd. This is normal practice, so he 
          is exempt.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #2:</font></b> The Mishnah says 'he handed over to a 
          shepherd.' It does not say he handed over to 'another.' 
          This suggests that he gave to his apprentice.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Inference:</font></b> Had he handed over to anyone else, he would 
          be liable. This supports Rava.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> If a Shomer (Levi) handed over to another 
               Shomer, Levi is liable.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps the Mishnah gave a typical case, but 
          he is exempt even if he hands over to another.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WATCHING AN AVEIDAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah):</font></b> One watching an a Aveidah (lost object) is 
          considered a Shomer Chinam (he is exempt if he loses it 
          or it is stolen);
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> He is like a Shomer Sachar (he is liable 
          for loss or theft).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rabah says that he is like a Shomer Chinam, for 
               he gets no benefit.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #1:</font></b> Rav Yosef says that he is like a 
               Shomer Sachar, for it is a Mitzvah to watch an 
               Aveidah. This Mitzvah exempts him from giving bread 
               to a poor man who requests.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #2:</font></b> Rav Yosef says, since the Torah 
               obligated him to watch the Aveidah, he is like a 
               Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Yosef - Beraisa):</font></b> If the finder returned 
          the Aveidah to a place where the owner can see it, this 
          is enough. If it was stolen or lost, he is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It was stolen or lost from the 
               finder's house. 
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> No, it was stolen or lost from the 
          place to which he returned it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa says that if he returned it to 
          there, this is enough!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he returned it in the afternoon. 
          The Beraisa teaches two laws:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he returned it in the morning to a place where 
               the owner normally goes and can see it, this is 
               enough;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he returned it in the afternoon to a place 
               where it can be seen, but the owner doesn't normally 
               go there, and it was stolen or lost, he is liable.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> He is always liable until he 
          returns it to his premises.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is liable even (if it was stolen or lost) from 
               the finder's house. This shows that he is a Shomer 
               Sachar!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Rabah admits that one who finds an animal is 
          liable. Since the animal learned to roam, it must be 
          watched better (so he was negligent. Perhaps he is exempt 
          for theft (Tosfos).).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rabah - Beraisa):</font></b> 'Return' - to his house. 
          'You will return them' - even to his garden or (deserted) 
          ruin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case of returning to his 
               garden or ruin?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If they are guarded, this is just like returning 
                    to his house!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, they are not guarded. This 
               shows that the finder is like a Shomer Chinam (even 
               a minimal guarding suffices)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (and Answer #2 to Question i:1 - Rav Yosef):</font></b> 
          Really, they are guarded. The Beraisa teaches that the 
          owner need not know that they were returned.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> In all cases, the owner must know 
               when his article was returned, except for an 
               Aveidah, for the Torah mentioned 'returning' it many 
               times.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WHO CLAIMS THAT THE ITEM WAS STOLEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (against Rav Yosef - Abaye):</font></b> R. Chiya bar Aba 
          cited R. Yochanan to say that if Levi found an Aveidah 
          and swore that it was stolen from him (and later, it was 
          found that Levi had it), he pays Kefel (double), like a 
          thief.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a finder is a Shomer Sachar, when he claims 
               that it was stolen, he must pay! (Since Levi was not 
               trying to steal (he obligated himself), he would not 
               pay Kefel.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> The case is, he claimed that armed 
          robbers stole it. (He exempted himself, for this is 
          Ones.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> Armed robbers never pay Kefel, only 
          thieves!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> Since they hide from people, they 
          are like thieves, and they pay Kefel.
<br>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Abaye - Beraisa):</font></b> You cannot learn from a 
          Shomer Chinam, who pays Kefel, to a Shomer Sachar, who 
          does not pay Kefel.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If armed robbers were like thieves and paid 
               Kefel, also a Shomer Chinam would pay Kefel (when he 
               claims that armed robbers took it)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> The Beraisa means 'you cannot learn 
          from a Shomer Chinam, who pays Kefel for any (false) 
          claim (of theft), to a Shomer Sachar, who pays Kefel only 
          regarding a claim of armed robbers.'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Abaye - Beraisa) Question:</font></b> '(A borrower is 
          liable) if it was broken or died.' What is the source 
          (that he is liable) even if it was stolen or lost?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> A Kal va'Chomer teaches this. A Shomer 
               Sachar is exempt when it is broken or dies, but is 
               liable for theft or loss. A borrower is liable when 
               it is broken or dies. All the more so he is liable 
               for theft or loss! This Kal va'Chomer cannot be 
               challenged.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If armed robbers are like thieves and pay Kefel, 
               we can challenge this! A Shomer Sachar sometimes 
               pays Kefel (when he claims that armed robbers took 
               it), but a borrower never pays Kefel (so it is more 
               lenient in this respect)!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> This Tana holds that a Shomer 
          Sachar is more lenient, since he can swear (that armed 
          robbers took it) and be exempt, even though this can lead 
          to paying Kefel.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support (for Rav Yosef - Beraisa):</font></b> If Reuven rented a 
          cow from Shimon, and it was stolen, and Reuven said 'I 
          will pay and not swear', and the thief was found, he pays 
          Kefel to Reuven.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Assumption:</font></b> This is like R. Yehudah, who says 
               that a renter is like a Shomer Sachar. Reuven said 
               'I will pay and not swear.' This implies that he 
               could have sworn and not paid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The case is, he claimed that armed robbers took 
               it. If they are found later, they pay Kefel!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> Perhaps it is like R. Meir, who says that 
          a renter is like a Shomer Chinam (and he claimed that a 
          regular thief stole it).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Perhaps it is like R. Yehudah, according 
          to Rabah bar Avuha, who switches the opinions of R. Meir 
          and R. Yehudah, and says that R. Yehudah holds that a 
          renter is like a Shomer Chinam.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection #3 (R. Zeira):</font></b> The case is, Reuven claimed 
          that armed robbers took it, and later, it was found that 
          a thief took it.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN AN ANIMAL PAYS AS MUCH AS IT BENEFITED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If it fell into a garden and benefited, 
          Reuven pays the benefit (not the full damage).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav):</font></b> The case is, it fell on fruits.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> This implies that if it ate them, he does not 
          pay at all!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This is like Rav holds, that the 
               animal should not have eaten.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> No. Rav said so only to exempt the 
               owner of fruits, when the animal ate and was 
               damaged. Rav would not say that this is a reason to 
               exempt it when it damages!
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN AN ANIMAL PAYS AS MUCH AS IT BENEFITED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer:</font></b> No, rather Rav teaches a bigger Chidush;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It pays the benefit not only when it ate, rather, 
               even when it fell on fruits. We do not say that 
               Reuven is exempt because the fruits merely 'chased 
               away a lion' (prevented damage).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why don't we say this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> That exemption is only when he intended to 
          prevent damage. Here, he did not.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2:</font></b> That exemption is only when the chaser did 
          not suffer a loss. Here, he lost.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> How did the animal fall?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Kahana):</font></b> It slipped on its urine.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Another animal (of Reuven) pushed it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rava agrees that all the more so if it slipped on 
               its urine, it pays (only) the benefit.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Kahana would say that if another animal 
               pushed it, it pays the damage. They should have been 
               led single file. It was negligence to lead them side 
               by side.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Kahana):</font></b> It pays (only) the benefit in the patch 
          it fell into. If it entered another patch, it pays the 
          damage.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> Even if it entered another patch, even 
          if it eats all day long, it only pays the benefit, until 
          it leaves and returns with his knowledge.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> He does not mean that Reuven found out and 
          did not lock it up properly (minimal guarding). Rather, 
          once he finds out that it left, even if he locks it 
          properly (he is liable if it returns).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Once it found a place to eat, it will return 
          whenever it can (so it must be guarded well).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONES AT THE END</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If it entered normally, it pays the damage.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (R. Yirmiyah):</font></b> If it entered normally and 
          damaged through natal water, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that only one who was 
               negligent at the beginning and Ones at the end, 
               surely he is liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The question is according to the opinion that 
               exempts negligence at the beginning when the end was 
               Ones:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Here also, he was negligent at the beginning and 
                    Ones at the end, so he is exempt;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Or, perhaps this is all negligence. Since 
                    he knew that it would give birth soon, he 
                    should have been careful with it?
<br>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	This question is unresolved.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>EVALUATION OF THE DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We evaluate the damage (by evaluating a Beis 
          Se'ah...)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Masnah):</font></b> 'It will consume in a different 
          field' - we evaluate the damage based on another field.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> We need that verse to exempt (Shen) in a 
          Reshus ha'Rabim!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> If it only came to teach that, it should say 
          'his friend's field' or 'a different field';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, it says 'in a different field' to teach 
               that we evaluate the damage as if it were in another 
               field.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps the verse only comes to teach that!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> If so, it should have been written regarding 
          the payments, 'from the best of his field and vineyard he 
          will pay in another field';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Torah wrote it regarding the damage, so we 
               learn both.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> How do we evaluate?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (R. Yosi bar Chanina):</font></b> (We consider how much 
          the damaged area would decrease the value of) a Beis 
          Se'ah sold amidst a field of 60 Beis Se'ah. (Larger 
          fields are proportionally cheaper, for only rich people 
          can buy them.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (R. Yanai):</font></b> We consider a half-Beis Se'ah 
          amidst (a field) 60 times as big. (Meiri, Maharam Shif - 
          we consider how much the damaged area would decrease the 
          value of a Beis Se'ah sold amidst a field of 30 Beis 
          Se'ah.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #3 (Chizkiyah):</font></b> We evaluate (the decreased value 
          due to) the amount eaten among 60 times as much.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If it ate one or two Kavim, we 
          evaluate amidst (among) a small patch.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> We evaluate the small patch by 
               itself.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> No, we evaluate it amidst 60 times as much 
          (each Amora according to his opinion).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We do not estimate the value of one Kav, for 
          this makes it better. We do not estimate the value of a 
          Beis Kor (one Kor is 30 Se'ah), for this makes it worse.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #1 (Rav Papa):</font></b> We do not estimate the value of 
          one Kav (eaten) among 60 Kavim, for this favors the 
          damager. We do not estimate the value of one Kor (eaten) 
          among 60 times as much, for this harms the damager. 
          (Rather, we estimate one Se'ah in 60.)
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Objection (Rav Huna bar Mano'ach):</font></b> If so, it should not 
          say 'a Beis Kor', rather 'a Kor' (since that was eaten)!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #2 (Rav Huna bar Mano'ach):</font></b> We do not estimate 
          the value of one Kav (eaten) alone, for this favors the 
          victim; nor do we estimate it among a Beis Kor, for this 
          hurts the victim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we evaluate it among 60 times as much.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>EVALUATING DAMAGES DUE TO PEOPLE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A case occurred in which Reuven cut down Shimon's date 
          tree.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Reish Galusa (the Exilarch) :</font></b> I saw that there 
               were three trees together there, and they were worth 
               100 in all. Reuven must pay one third of this.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Reuven:</font></b> That is like Persians rule! I will go to 
               Rav Nachman.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> We evaluate among 60 times as much.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rava:</font></b> We said so when a man's property damages. 
               Does it apply when a man himself damages?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Suggestion (Abaye, to Rava):</font></b> Perhaps you learn a man's 
          damage from the following Beraisa?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Levi ruined Yehudah's vineyard when 
               the grapes were unripe, we see how much it was worth 
               before, and how much it is worth now.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Beraisa does not mention 60.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> That is no proof. A similar Beraisa 
          discusses damage of an animal (and does not mention 60)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yosi):</font></b> If (one's animal) cut the 
               top off a young tree, those who make decrees in 
               Yerushalayim decreed to pay two (silver coins) for a 
               first year tree, and four for a second year tree.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi ha'Glili says, if it ate fodder, we 
               evaluate the remnant, what it is worth at harvest 
               time; 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, we see how much it was worth 
               before, and how much it is worth now.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yehoshua says, if it ate Semadar (immature 
               grapes right after budding), we view them as if they 
               were ready to be harvested; 
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Chachamim say, we see how much it was worth 
               before, and how much it is worth now.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> R. Shimon ben Yehudah says, this is only when it 
               ate grapes or figs that were just budding. If it ate 
               Pagim or Boser (proper grapes or figs that are not 
               fully grown), we view them as if they were ready to 
               be harvested.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Summation of Rejection:</font></b> Chachamim say that we see 
               how much it was worth before, and how much it is 
               worth now. They did not mention 60, but we know that 
               this is the law;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The same applies to the Beraisa about a man who 
                    damaged!
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PAYING THE FUTURE PRICE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Abaye):</font></b> R. Yosi ha'Glili and R. Yishmael hold 
          similarly.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He refers to R. Yosi ha'Glili in the above 
               Beraisa, and R. Yishmael in the coming Beraisa.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa - R. Yishmael):</font></b> 'From the best of his 
               field and vineyard he will pay' - from land equal to 
               the best land of the victim;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Akiva says, the verse teaches that damages are 
               collected from Idis, and Kal va'Chomer to Hekdesh.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Abaye):</font></b> Do not learn like Rav Idi bar Avin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Idi bar Avin):</font></b> If a patch of a field was 
               consumed, and we are unsure which one, he pays like 
               the best patch we see there.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why shouldn't we learn like him?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The one who wants to collect must bring proof.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Abaye):</font></b> Rather, he pays like the best (future) price.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is that?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It is the price at harvest time.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa - R. Shimon ben Yehudah):</font></b> This is only when it 
          ate immature grapes or figs that were just budding.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Inference:</font></b> If it ate Semadar (right after budding), we 
          view them as if they were ready to be harvested.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> If it ate Pagim or Boser (proper 
          fruit that is not fully grown), we view them as if they 
          were ready to be harvested;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If it ate Semadar, we calculate the 
               decline in (current value)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> We read the Beraisa as follows: R. 
          Shimon ben Yehudah says, this is only when it ate grapes 
          or figs that were just budding; but if it ate Semadar, 
          Pagim or Boser, we view them as if they were ready to be 
          harvested.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> That is R. Yehoshua's opinion!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about whether or not we deduct for 
          weakening of the vines that would have occurred had the 
          grapes finished growing. We cannot tell who holds which 
          way.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Abaye):</font></b> We can tell! R. Shimon ben Yehudah is 
          concerned for weakening of the vines;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon ben Yehudah):</font></b> If Reuven 
               raped a virgin, he does not pay for pain (of 
               breaking the Besulim), for she would have 
               experienced the same pain in her first Bi'ah when 
               she gets married.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Chachamim:</font></b> The pain when one is forced is much 
               greater than the pain of one who is willing.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Abaye):</font></b> R. Shimon ben Yehudah (above) and the 
          following Tana'im hold similarly.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yosi):</font></b> We deduct the cost of a 
               midwife (when evaluating the payment for a fetus);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Ben Azai says, we deduct the additional food that 
               she would have eaten in the days of Kishuy (when she 
               is in pain, before the birth).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yosi holds that all the more so we deduct the 
                    additional food;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Ben Azai holds that we do not deduct the 
                    cost of a midwife. Her husband can say that his 
                    wife does not need one.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>EVALUATING THE DAMAGE AMONG 60 TIMES THE DAMAGED AREA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1:</font></b> Rav Papa and Rav Huna brei d'Rav Yehoshua 
          ruled like Rav Nachman (who estimates the damage amidst 
          60 times as much).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #2:</font></b> Rav Papa and Rav Huna brei d'Rav Yehoshua 
          estimated the damage to a date tree among a small area of 
          land.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	The Halachah follows them regarding date trees of Aram. 
          The Halachah follows the Reish Galusa (we estimate the 
          damage by itself) regarding Persian date trees (which are 
          more (Rashi; Aruch - less) prestigious).
<br>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Eliezer Ze'iri was wearing black shoes (like a mourner) 
          in the Neharda'a market. Men of the Reish Galusa's house 
          asked him about this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Eliezer:</font></b> I am mourning over Yerushalayim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> The men:</font></b> You consider yourself important enough 
               to mourn over Yerushalayim? This is haughtiness!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> They seized him; he said that he is a great 
               Chacham, they may ask him, or he will ask them. They 
               chose the latter.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Eliezer:</font></b> If a man cut dates that were not fully 
               grown, how much does he pay?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> The men:</font></b> Their value.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Eliezer:</font></b> But they would have become full dates!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> The men:</font></b> He pays for full dates.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Eliezer:</font></b> But he did not eat full dates!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> The men:</font></b> What do you say he pays?
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'>  Eliezer:</font></b> We evaluate among 60 times as much.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'>  The men:</font></b> Who holds like you?
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'>  Eliezer:</font></b> Shmuel does. You can send this question 
               to him!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Shmuel said like Eliezer. They released him.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>FINISHED FRUIT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> R. Shimon says, if it ate finished fruits 
          (it pays the full value).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this so? 'It will consume in a 
          different field' teaches that we evaluate like part of a 
          field!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> That is only when it eats something that needs 
          (to keep growing in) a field.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Huna bar Chiya):</font></b> Rav ruled in a case like R. Meir 
          (as follows). He taught that the Halachah follows R. 
          Shimon (in our Mishnah).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa R. Meir):</font></b> If Reuven wrote a document 
               selling to Shimon the field designated to pay his 
               wife's Kesuvah, and she did not sign, and he wrote a 
               document selling it to Levi and she signed, she 
               forfeits her Kesuvah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, she can say, I signed only to 
               please my husband. I did not forfeit anything!
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>PERMISSION TO PILE UP FRUIT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven piled up his Peros in Shimon's 
          field without permission, and Shimon's animal ate them, 
          Shimon is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the animal was damaged, Reuven is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven had permission, Shimon is liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Suggestion:</font></b> The Mishnah is unlike Rebbi, who 
          holds that the owner of the premises is exempt, unless he 
          accepted to guard.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (Rav Papa):</font></b> It is even like Rebbi. The case 
          is, Reuven got permission from the guard hired to watch 
          all the granaries in the valley. (Rashi agrees that Stam, 
          he accepts to guard.)
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>SENDING A FIRE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven sent a fire with a Cheresh, 
          lunatic or child, he is exempt b'Yedei Adam, but liable 
          b'Yedei Shamayim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he sent a fire with a healthy adult, the adult 
               is liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Shimon brought the flame, and Levi brought the wood, 
          Levi is liable;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If Shimon brought the wood, and Levi brought the flame, 
          Levi is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Yehudah came and blew the flame, he is liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the wind fanned the flame, all are exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - Reish Lakish):</font></b> Reuven is exempt (b'Yedei 
          Adam) only when he sent a coal with a Cheresh, lunatic or 
          child, and the messenger fanned it. If he sent a flame, 
          Beis Din makes him pay.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why is he liable if he sent a flame?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> This will surely cause damage.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> Even if he sent a flame, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The way the messenger held the flame 
               caused the damage.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Reuven is liable only if he sent thorns, thin wood, and 
          a lamp. Then, he surely caused the damage!
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SENDING A FIRE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> (If Yehudah came and blew the flame...)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Nachman bar Yitzchak):</font></b> Both 'Libah' and 'Nivah 
          (blew)' are reasonable texts of the Mishnah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the wind fanned the flame, all are 
          exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Yehudah blew and the wind fanned the 
          flame, if Yehudah's blowing was enough, he is liable. If 
          not, he is exempt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this? This should be like one who 
          winnows with the wind (one is liable for this on 
          Shabbos)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> The case is, Yehudah blew from one 
          side, and the wind from the other (so Yehudah did not 
          assist the wind).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> When Yehudah was blowing, a normal 
          wind was blowing. Later, an abnormal wind spread the 
          flame.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3 (R. Zeira):</font></b> He did not really blow, he just 
          exhaled like one warming his hands.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #4 (Rav Ashi):</font></b> One who winnows with the wind is 
          liable only regarding Shabbos, in which the Torah forbids 
          intended labor;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, the blower only helped cause damage. 
               Causation of damage is exempt.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LIABILITY FOR A FIRE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven sent a fire, and it consumed wood, 
          stones or dirt, he is liable - 'when a fire will go and 
          find thorns, and consume a stack, Kamah (standing crop) 
          or the field, the one who burned will pay.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rava) Question:</font></b> Why did the Torah need to 
          write 'thorns', 'a stack', 'Kamah' and 'the field'?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Had it written only 'thorns', one might have 
          thought that one is liable only for thorns, since they 
          are used for fires and people are not careful with them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it written only 'a stack', one might have 
               thought that one is liable only for a stack, for 
               this is a big loss, but not for thorns.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We need 'Kamah' to teach that one is liable only 
               for exposed things.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> R. Yehudah obligates fire even for 
                    concealed things. What does he learn from 
                    'Kamah'?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer:</font></b> This includes everything of stature 
                    (trees and animals).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  Chachamim learn this from 'or the Kamah.'
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b>  R. Yehudah says, we need 'or' to know that 
                    one liable for burning even one of these!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b></b> Chachamim learn that from 'or' written before 
                    'field'.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b></b>  R. Yehudah says, since it needed to write 
                    'or' once, it was repeated for parallel 
                    structure.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We need 'the field' to obligate for scorching a 
               plowed field or rocks.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> The Torah could have written only 'the 
          field', and we would know that all the more so one is 
          liable for thorns, stacks and Kamah!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> That would not have sufficed. Had it written 
          only 'the field', one might have thought one is liable 
          only for what is in the field (but not for the ground 
          itself).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT TO DO AT TIMES OF PUNISHMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Shmuel bar Nachmani):</font></b> Punishments come to the 
          world only when the wicked are in the world. The 
          punishments start with the Tzadikim - 'when a fire will 
          go and find thorns' - the fire erupts when there are 
          thorns (Resha'im);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We learn that it starts with the Tzadikim from 
               'and a stack (Tzadik) was consumed', not 'and it 
               will consume a stack' - it was already consumed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yosef - Beraisa):</font></b> 'No one may leave his house 
          until morning (on the night of Makos Bechoros)' - once 
          permission to destroy is given (to the angel of death), 
          he does not distinguish between Tzadikim and Resha'im 
          (i.e. e kills both);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Further, he begins with the Tzadikim - 'I will 
               cut off from you Tzadik and Rasha.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> What does the Tzadik's righteousness 
               help him?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Abaye:</font></b> It is good that he (dies first and) 
               doesn't see the destruction - 'before the evil, the 
               Tzadik dies'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> One should always start traveling and 
          end traveling when the sun is out - 'no one may leave 
          his house until morning.'
<br>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> When pestilence is in the city, stay inside. 
          It says 'no one may leave his house until morning'; also, 
          'go my nation, in your room, close the door in back of 
          you'; also, 'the sword (of the angel of death) will kill 
          outside, and inside, fear.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why were all three verses needed?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> From the first verse, we would not know (that 
          one must stay inside at a time of pestilence) during the 
          day;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> From the second verse, we would not know to stay 
               inside even when there is fear inside. Perhaps it is 
               better to be with people outside!
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rava would shut the windows when there was pestilence - 
          'for death has come in our windows.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If there is famine in the city, leave - 
          'there was a famine in the land, and Avram descended to 
          Mitzrayim to sojourn there.' Also, 'if we will go to the 
          city, and there is famine in the city, we will die 
          there'.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why was the second verse needed?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The first verse does not teach about when there 
          is possible mortal danger outside the city;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We learn this from the continuation of the second 
               verse, 'let us come...(and if we will die, we will 
               die).'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If there is pestilence in the city, one 
          should not walk in the middle of the street, for the 
          angel of death goes there. Since he has permission to 
          kill, he goes openly.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there is peace in the city, one should not 
               walk on the sides of the street, for the Angel of 
               death goes there. Since he has no permission, he 
               goes covertly.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If there is pestilence in the city, one 
          should not go alone to the Beis ha'Keneses, for the angel 
          of death leaves his Kelim there.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only when children do not learn there, 
               and 10 men do not pray there.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If dogs cry, this shows that the angel of 
          death is in the city. If they laugh, this shows that 
          Eliyahu has come;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This does not apply if a female dog is there.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>KING DAVID'S QUESTION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yitzchak Nafcha):</font></b> 'When a fire will go and find 
          thorns, and a stack is consumed or Kamah or the field, 
          the one who burned will pay' - Hash-m said 'I must pay 
          for burning the Mikdash. I will rebuild it with fire - 'I 
          will be like a wall of fire around (Yerushalayim)'';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The verse initially discusses damage of a man's 
               property ('when a fire will go' - by itself) and 
               concludes with a man's damage ('the one who 
               burned'). This teaches that one is liable for fire 
               like for his arrows.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> 'David desired and said 'who will give me 
          water (Torah) to drink from the well of Beis Lechem in 
          the gate (the Sanhedrin)?' Three mighty ones... (drew the 
          water and gave it to David, but he did not want to drink 
          it).' What did David want to know?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> He wanted to know whether fire is 
          liable for something concealed in a fire (like Chachamim, 
          or if one is exempt, like R. Yehudah).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Huna):</font></b> Pelishtim were hiding in stacks 
          of barley of Yisrael. He wanted to know if may use 
          others' money (burn the stacks) to save himself;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The answer was that a commoner may not, but a 
               king may break down walls to make a path for 
               himself, and no one may protest (and all the more 
               so, here he is permitted).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #3 (Rabanan):</font></b> There were stacks of barley of 
          Yisrael, and stacks of lentils of Pelishtim. He wanted to 
          know if he may feed his animal from the barley, on 
          condition that he will pay with lentils;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The answer was 'the security he will return, a 
               Rasha will return the theft' (i.e. (a commoner) who 
               steals and pays back is called a Rasha), but a king 
               may break down walls to make a path for himself, and 
               no one may protest.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rabanan, we can resolve the 
          verses 'there was a field full of lentils', 'There was a 
          field full of barley';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Rav Huna, why do the verses differ?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> There were also stacks of lentils, in which 
          Pelishtim were hiding.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rav Huna, we understand 'he 
          stood in the field and saved it' (from being burned).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the Rabanan, what was saved?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> They did not take the barley on condition to 
          repay lentils.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rava, how do we understand the 
          verses?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> David asked whether fire is liable for 
          concealed things, and also the question of Rav Huna or 
          Rabanan.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>KING DAVID'S QUESTION (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rav Huna and Rabanan, we 
          understand 'David did not want to drink' (to rely on the 
          special right of a king).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Rava what does this mean? (He merely 
               received an answer!)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> He would not say the law in their names.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> David had received from Shmuel that we do not say 
               laws in the name of one who endangered his life to 
               learn Torah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rav Huna and Rabanan, we 
          understand 'he poured them for an offering to Hash-m' - 
          he acted for the sake of Heaven (he did not rely on the 
          special right of a king);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Rava, what does this mean?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> He said the law (anonymously) like a tradition.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A FIRE THAT SPREAD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a fire passed a wall of four Amos, Derech 
          ha'Rabim (a public road) or a river, one is exempt (for 
          what burned on the other side).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Contradiction (Beraisa):</font></b> If a fire passed a 
          wall of four Amos, he is liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> The Mishnah teaches about walls of 
          descending heights. If the wall was six Amos, he is 
          exempt, and also if it was five, until (and including) 
          four;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa teaches about walls of ascending 
               heights. If the wall was two Amos, he is liable, and 
               also if it was three, until (but not including) 
               four.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> A wall of four Amos exempts, even in a field of 
          thorns.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> The four Amos are measured above the 
          thorns.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav):</font></b> The Mishnah applies only to a flame that rises. 
          A low (or bent) flame is liable even for crossing a wall 
          (Tosfos; Rashi - road) of 100 Amos.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> The Mishnah applies only to a low (or bent) 
          flame. A flame that rises is exempt even for crossing a 
          wall (road) of any size.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Support (for Rav - Beraisa):</font></b> This applies only to a 
          flame that rises. A low (or bent) flame where wood is 
          found is liable even for crossing a road of 100 Mil (one 
          Mil is 2000 Amos, about a kilometer);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it crossed a river or Shlulis (explained 
               below) eight Amos wide, it is exempt.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If it crossed Derech ha'Rabim...
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Who is the Tana of the Mishnah?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> It is R. Eliezer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer):</font></b> (One is exempt if it 
               crossed a road) 16 Amos wife, like the width of 
               Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Or a river...
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rav):</font></b> This literally means a river.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even if it is dry, he is exempt.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> It refers to a small irrigation ditch.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is exempt only if has water.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The following are a division regarding Pe'ah 
          (they require one to leave a part of the field 
          unharvested (for the poor) on each side of the division): 
          a Nachal (river; some say, valley), a Shlulis, a private 
          path, or a public road.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> What is a Shlulis?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> It is a place where rainwater 
          Sholelim (gathers).
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #2 (Rav Bivi):</font></b> It is an irrigation ditch that 
          apportions Shalal (profit) to its banks (by supplying 
          water).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Yehudah would say that all the more so, an 
               irrigation ditch is a division;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Bivi would not agree about a place where 
               rainwater gathers. That is a mere basin of the 
               field.
<br>
<br>


lvr: 41
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE LIMIT OF RESPONSIBILITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah) Question:</font></b> If Reuven lit a fire in his own 
          premises (and it spread to his neighbor), how far must it 
          be from the fire to his neighbor for Reuven to be exempt?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (R. Elazar ben Azaryah):</font></b> It must be like the 
          distance from the middle of a Beis Kor (to the edge, 
          about 137 Amos);
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (R. Eliezer):</font></b> It must be 16 Amos, like Reshus 
          ha'Rabim; 
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #3 (R. Akiva):</font></b> It must be 50 Amos;
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #4 (R. Shimon):</font></b> 'The one who burned the fire 
          will pay' - it is according to the fire.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara) Contradiction:</font></b> Elsewhere, R. Shimon limits 
          responsibility for a fire!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> One may not set up a Tanur (oven) in 
               his house unless there are four Amos above it. One 
               may not set up an oven in an upper story unless 
               there are three Tefachim of plaster below it;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  For a Kirah (a kind of oven that does not get as 
                    hot as a Tanur), one Tefach suffices.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the oven caused damage, he must pay for it;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon says, if he kept the proper distance, 
               he is exempt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> R. Shimon holds that the distance 
          is always according to the size of the fire.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> The Halachah follows R. Shimon.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>LIABILITY FOR SOMETHING CONCEALED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> If Reuven burned a stack, and 
          Kelim were inside and they burned, he pays for them;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Chachamim say, he only pays for a stack of wheat or 
          barley (whatever it was).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If Reuven burned a stack of grain, and there was a goat 
          tied to it and a slave nearby, and they were burned, 
          Reuven is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there was a slave tied to it and a goat 
               nearby, and they were burned, Reuven is exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Chachamim admit to R. Yehudah that one who burns a 
          building pays for everything inside, for people normally 
          put (all kinds of) things in houses.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Rav Kahana):</font></b> They argue about when Reuven lit 
          in his own premises, and it spread to Shimon's property: 
          R. Yehudah obligates him for what was hidden, and 
          Chachamim exempt him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he lit a fire in Shimon's premises, all 
               obligate him for what was hidden.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> If so, why does the Seifa say 
          'Chachamim admit to R. Yehudah that one who burns a 
          building pays for everything inside, for people normally 
          hide things away in houses?' It should distinguish 
          regarding the case of a stack!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It should say that Chachamim exempt only when 
               Reuven lit in his own premises. If he lit in 
               Shimon's premises, all agree he is liable for what 
               was hidden!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rava):</font></b> Rather, they argue in both cases;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When Reuven lit in his own premises and it spread 
               to Shimon's property, R. Yehudah obligates him for 
               what was hidden, and Chachamim exempt him;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he lit a fire in Shimon's premises, R. Yehudah 
               obligates even for anything hidden, even a wallet. 
               Chachamim obligate for Kelim that are sometimes put 
               in a stack, such as tools used for threshing and 
               with cattle.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa - R. Yehudah):</font></b> If Reuven burned a stack, and 
          Kelim were inside and they burned, he pays for them;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Chachamim say, he pays only for a stack of wheat or 
          barley. We view the place of the Kelim as if it were 
          grain.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LIABILITY FOR SOMETHING CONCEALED (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Continuation of Beraisa):</font></b> This is only if Reuven made 
          a fire in his own premises. If he lit in Shimon's 
          premises, all agree that he pays for everything inside.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven permitted Shimon to make a stack in Reuven's 
          property, and Reuven's fire burned it, he pays only for a 
          stack:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon deviated from what he had permission to 
               pile up, from wheat to barley or vice-versa; or, if 
               he piled one grain and covered it with a different 
               grain, Reuven pays for the cheaper grain (barley).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IS ONE BELIEVED ABOUT WHAT HE LOST?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven gave to Leah a gold coin, and told 
          her to be careful with it, for it is silver, and she 
          damaged it, she pays its full value, for she had no right 
          to damage it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If she was negligent and it was damaged, she pays 
               for silver. She can say 'I accepted to guard only a 
               silver coin.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Mordechai):</font></b> We can derive that from the Beraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon piled up wheat and covered it with 
               barley or vice-versa, Reuven pays for barley.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is because Reuven accepted to guard only 
               barley. Likewise, Leah accepted to guard only 
               silver!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav):</font></b> I heard a law according to R. Yehudah in our 
          Mishnah. I do not know what it was.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> (If it is clear that Levi stole from David, 
          but it is not known how much, it was enacted that David 
          swears how much was taken and he collects.) Similarly, 
          one whose stack was burned can swear what was inside, and 
          collects (according to R. Yehudah).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Ameimar):</font></b> Did they make a similar enactment 
          about a Moser (when Ploni incited the kingdom to take 
          Yakov's property)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that exempts for Garmi 
               (semi-direct ways of causing damage), surely, this 
               is also exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We ask according to the opinion that obligates 
               for Garmi.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Can Yakov swear what was taken from him and 
               collect from Ploni?
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	This question is unresolved.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	A case occurred in which Reuven kicked Shimon's money-
          chest into the river. Shimon claimed that a certain sum 
          was inside.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> How do we rule?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Ravina - Mishnah):</font></b> Chachamim admit to R. 
          Yehudah that one who burns a building pays for everything 
          inside, for people normally put things in houses.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rav Ashi:</font></b> If he claims money, we indeed learn from the 
          Mishnah. I ask about one who claimed a precious stone. Is 
          it normal to put such stones in a money-chest?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This question is unresolved.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rav Yemar):</font></b> If he claims that he had a silver 
          chair in a building, what is the law?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> If he is a man who we would expect 
          to have such a chair, i.e. he is wealthy, or trustworthy 
          enough that people would deposit such a chair with him, 
          he swears and collects. If not, he is not believed.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Rav Ada brei d'Rav Avya):</font></b> What is the 
          difference between a Gazlan and a Chamsan?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> A Chamsan pays for what he takes. A 
          Gazlan does not.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question (Rav Ada brei d'Rav Avya):</font></b> One who pays money 
          is not called a Chamsan!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> If Reuven hung Shimon until Shimon 
               agreed to sell his field, the sale is valid.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> The sale is valid if Shimon said 'I 
          want to sell it.' If not, it is invalid (and Reuven is a 
          Chamsan).
<br>
<br>


lvr: 41
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A FLAME FROM A STORE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a spark flew out from a man's hammer and 
          it damaged, he is liable;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven's camel, laden with flax, was walking in a 
          Reshus ha'Rabim, and the flax entered Shimon's store, 
          caught fire from Shimon's lamp, and burned the building, 
          Reuven is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon left his lamp outside, he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, if it was lit for the Mitzvah of 
               Ner Chanukah, he is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Ravina):</font></b> From R. Yehudah, we learn that Ner 
          Chanukah must be placed within 10 Tefachim of the ground.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it were permitted to place it higher, why is 
               Shimon exempt? He should have put it higher than a 
               camel and its rider, to avoid damage!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Conclusion:</font></b> We must say that the Mitzvah 
               (l'Chatchilah) is to put it within 10.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> Really, l'Chatchilah one may put them above 
          10 Tefachim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since he is doing a Mitzvah, Chachamim did not 
               exert him to place it so high.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Kahana):</font></b> If Ner Chanukah was placed above 20 Amos, 
          this does not fulfill the Mitzvah, just like a Sukah or 
          (beam to permit carrying in an) alleyway more than 20 
          Amos high is invalid.
<br>
<br><b>PEREK MERUBAH</b>
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>FOR WHICH ITEMS DOES A THIEF PAY DOUBLE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Kefel (the double payment of a thief) 
          applies in more cases than the payment of four and five:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Kefel applies to living and inanimate things. 
               Four and five applies only to an ox or Seh (goat or 
               sheep) - 'if a man will steal an ox or Seh and 
               slaughter or sell it...'
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	One who steals from a thief does not pay Kefel. If he 
          later slaughters or sells it, he does not pay four and 
          five.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) - Version #1:</font></b> The Mishnah does not say that 
          Kefel also applies to a Shomer who claims that the item 
          was stolen, whereas four and five applies only regarding 
          a real thief. This supports R. Chiya bar Aba;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya bar Aba):</font></b> A Shomer who claims that the 
               item was stolen pays Kefel. If he slaughtered or 
               sold it, he pays four and five.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #2 - Suggestion:</font></b> The Mishnah supports R. Chiya 
          bar Aba.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya bar Aba):</font></b> A Shomer who claims that the 
               item was stolen pays Kefel. If he slaughtered or 
               sold it, he pays four and five.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> The Mishnah does not say these are the only 
          differences. There are differences that were not taught. 
          (end of Version #2) 
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Kefel applies...
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'For any transgression' is a Klal. 
          'For an ox, donkey, Seh or garment' is a Prat. 'For any 
          Aveidah' is another Klal;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Klal u'Frat u'Chlal teaches everything similar 
               to the Prat, in this case something movable that 
               has intrinsic value;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This excludes land, slaves (which are equated to 
                    land), and documents (their value is not 
                    intrinsic).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Hekdesh is excluded, for the verse says 
                    'his fellowman.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> We should say that the Prat is something for 
          which the carcass has Tum'as Maga and Masa (it is Metamei 
          what touches or moves it), and include only such things!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> We cannot say so. One of the Peratim is 
               a garment!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Among the living things, we should only 
               include such animals, for each Prat is expounded 
               through a separate Klal u'Frat u'Chlal;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We would not include birds, for their carcasses 
                    do not have Tum'as Maga and Masa.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LIABILITY FOR SOMETHING CONCEALED (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Continuation of Beraisa):</font></b> This is only if Reuven made 
          a fire in his own premises. If he lit in Shimon's 
          premises, all agree that he pays for everything inside.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven permitted Shimon to make a stack in Reuven's 
          property, and Reuven's fire burned it, he pays only for a 
          stack:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon deviated from what he had permission to 
               pile up, from wheat to barley or vice-versa; or, if 
               he piled one grain and covered it with a different 
               grain, Reuven pays for the cheaper grain (barley).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IS ONE BELIEVED ABOUT WHAT HE LOST?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven gave to Leah a gold coin, and told 
          her to be careful with it, for it is silver, and she 
          damaged it, she pays its full value, for she had no right 
          to damage it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If she was negligent and it was damaged, she pays 
               for silver. She can say 'I accepted to guard only a 
               silver coin.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Mordechai):</font></b> We can derive that from the Beraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon piled up wheat and covered it with 
               barley or vice-versa, Reuven pays for barley.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is because Reuven accepted to guard only 
               barley. Likewise, Leah accepted to guard only 
               silver!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav):</font></b> I heard a law according to R. Yehudah in our 
          Mishnah. I do not know what it was.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> (If it is clear that Levi stole from David, 
          but it is not known how much, it was enacted that David 
          swears how much was taken and he collects.) Similarly, 
          one whose stack was burned can swear what was inside, and 
          collects (according to R. Yehudah).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Ameimar):</font></b> Did they make a similar enactment 
          about a Moser (when Ploni incited the kingdom to take 
          Yakov's property)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that exempts for Garmi 
               (semi-direct ways of causing damage), surely, this 
               is also exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We ask according to the opinion that obligates 
               for Garmi.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Can Yakov swear what was taken from him and 
               collect from Ploni?
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	This question is unresolved.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	A case occurred in which Reuven kicked Shimon's money-
          chest into the river. Shimon claimed that a certain sum 
          was inside.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> How do we rule?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Ravina - Mishnah):</font></b> Chachamim admit to R. 
          Yehudah that one who burns a building pays for everything 
          inside, for people normally put things in houses.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rav Ashi:</font></b> If he claims money, we indeed learn from the 
          Mishnah. I ask about one who claimed a precious stone. Is 
          it normal to put such stones in a money-chest?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This question is unresolved.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rav Yemar):</font></b> If he claims that he had a silver 
          chair in a building, what is the law?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> If he is a man who we would expect 
          to have such a chair, i.e. he is wealthy, or trustworthy 
          enough that people would deposit such a chair with him, 
          he swears and collects. If not, he is not believed.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Rav Ada brei d'Rav Avya):</font></b> What is the 
          difference between a Gazlan and a Chamsan?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> A Chamsan pays for what he takes. A 
          Gazlan does not.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question (Rav Ada brei d'Rav Avya):</font></b> One who pays money 
          is not called a Chamsan!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> If Reuven hung Shimon until Shimon 
               agreed to sell his field, the sale is valid.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> The sale is valid if Shimon said 'I 
          want to sell it.' If not, it is invalid (and Reuven is a 
          Chamsan).
<br>
<br>

sjt:
<font><b>1) THE LOGICAL ORDER OF CHAPTERS</b></font><b>
<br>QUESTION:</b> The seventh Perek discusses the laws of compensation for thievery. The previous Perek discusses the specific laws of the Mazikim of Shen, Regel, and Esh. Normally, there is a logical progression from one chapter to the next in a Masechta. What logical progression is there from the sixth Perek of Bava Kama to the seventh Perek? In what way are the laws of Shen, Regel, and Esh related to the laws of compensation of a thief to his victim?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU YEHONASAN</b> cited by the Shitah Mekubetzes writes that the payments of a thief of 'Tashlumei Kefel' and 'Tashlumei Arba'ah v'Chamishah' are included in the twenty-four Avos Nezikin, as listed in the Beraisa earlier (4b). In the preceding chapters, the Tana of the Mishnah discussed the laws of Shor, Bor, Mav'eh, and Hev'er that were not guarded properly, and the laws relevant to Shomrim, agents appointed to guard items that have potential to cause damage (as Shomrim are also included in the twenty-four Avos Nezikin). The Tana here begins to discuss the details of the laws of the Ganav and Gazlan for they, too, are included in the twenty-four Avos Nezikin.
</p><p>
(b) The <b>MELECHES SHLOMO</b> (in Mishnayos) explains as follows. At the end of the sixth Perek (from 60a until the end of the Perek), the Gemara teaches the laws of Esh which is one of the four primary Avos Nezikin (2a). In the Torah, the verses which discuss Tashlumei Kefel and Tashlumei Arba'ah v'Chamishah (Shemos 21:37 to 22:4) are written in the midst of the verses which mention the four Avos Nezikin (Shemos 21:28 to 22:5). Therefore, immediately after the Tana completes the discussion of the laws of the four Avos Nezikin he discusses the laws of Tashlumei Kefel and Tashlumei Arba'ah v'Chamishah to parallel the Torah's discussion of those two subjects in proximity.
</p><p>
(c) The <b>TIFERES YISRAEL</b> (in Mishnayos) explains that after the Tana has taught the laws of the four Avos Nezikin -- for which one is obligated to pay even when one had no intention to do damage -- the Tana teaches the laws of compensation of a thief who must pay because he had intention to cause a loss to his fellow man in order to profit for himself.
</p><p>


<font><b>2) A CHAPTER IN THE WRONG ORDER</b></font><b>
<br>QUESTION:</b> The eighth Perek, 'ha'Chovel,' discusses the payments which a person is obligated to make for causing damage to the body of another person. The ninth Perek, 'ha'Gozel Etzim,' returns to the laws of thievery. Why does the Tana interrupt between the seventh Perek, 'Merubah,' and Perek 'ha'Gozel Etzim,' which both discuss the laws of thievery, and insert Perek 'ha'Chovel' which does not discuss the laws of thievery?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU YEHONASAN</b> (cited by the Shitah Mekubetzes) answers that it is the nature of a person who is a victim of thievery (Geneivah, wherein the Ganav steals surreptitiously and the victim does not know who stole from him) to become overly suspicious of other people. This suspicion brings a person to feelings of animosity and, ultimately, to acts of violence against his fellow man (for which he is liable to pay the forms of compensation mentioned in Perek 'ha'Chovel'). Therefore, the Tana placed Perek 'ha'Chovel' after Perek 'Merubah' which deals with the laws of Geneivah. Following the laws of 'ha'Chovel,' the Tana returns to discuss the laws of Gezeilah (in Perek 'ha'Gozel Etzim'), indiscreet robbery (wherein the victim knows who stole from him).
</p><p>
(b) The <b>TIFERES YISRAEL</b> answers that the Tana wanted to teach the most severe laws first. The laws of Tashlumei Arba'ah v'Chamishah make the act of Geneivah more severe than the act of Gezeilah, and the laws of 'Chamishah Devarim' (Nezek, Tza'ar, Ripuy, Sheves, Boshes) which apply to one who injures another person make one who harms someone else ('ha'Chovel') more severe than a Gazlan. Therefore, Perek 'Merubah' and Perek 'ha'Chovel' precede Perek 'ha'Gozel Etzim.' The last Perek, 'ha'Gozel u'Ma'achil,' follows 'ha'Gozel Etzim' because it discusses additional, supplementary laws of Gezeilah (such as the laws of heirs of a Gazlan who consumed the item which their father stole).
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>PUNISHING ONE WHO WAS MOSER</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ameimar) Question:</font></b> (It was enacted that if it is 
               clear that Levi stole from David, but it is not 
               known how much, David swears how much was taken and 
               he collects.) Was a similar enactment made regarding 
               a Moser (Ploni incited the government to take 
               Yakov's property)?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The opinion that exempts for Garmi (causing 
                    damage), surely exempts. We ask according to 
                    the opinion that obligates for Garmi. Can Yakov 
                    swear what was taken from him and collect from 
                    Ploni?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This question is unresolved.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 117a:</font></b> Yosef wanted to show Yehudah's straw (to 
               extortionists). Rav told him not to. He persisted 'I 
               will show'.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rav Kahana broke Yosef's neckbone.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rav:</font></b> '...Like a trapped wild ox' - once a wild 
                    ox is trapped, no one has mercy on it. 
                    Similarly, once money of Yisrael falls into the 
                    hands of Nochrim, they have no mercy on it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 119a (Rav Huna or Rav Yehudah):</font></b> One may destroy 
               property of a Moser. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since one may kill him, all the more he may 
                    destroy his money!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (The other of Rav Huna and Rav Yehudah):</font></b> One may not 
               destroy his property.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Perhaps he will have a righteous heir - 'the 
                    Rasha prepares, and the Tzadik will wear 
                    (benefit from it).'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Sanhedrin 57a (R. Avahu):</font></b> We throw into a pit 
               Mumarim (people who sin to anger Hash-m), Mosrim...  
               We do not raise them.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Bava Kama 46a):</font></b> Amora'im argued about whether 
               or not one may destroy property of a Moser. 
               Elsewhere, the Gemara forbids. I.e. we did not 
               settle whether or not there was an enactment to 
               swear and take from him what one lost (62a), all the 
               more so one may not destroy his property! 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Bava Kama 10:34):</font></b> This is not a solid proof. 
               Perhaps the question about the enactment refers to a 
               Moser who repented!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 8:11):</font></b> If a Moser 
               carried out his plot, it seems to me that one may 
               not kill him unless he is established to be Moser. 
               Then, we kill him lest he be Moser others. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Avodah Zarah 26b teaches that we 
                    kill established Mosrim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rivash (238):</font></b> Letter of the law, a Moser should not 
               be killed. A murderer is killed only if he himself 
               killed, but not for inciting a dog or snake to bite 
               and kill someone. Edim Zomemim are not killed after 
               the victim was killed. It is a Chidush that we kill 
               them if they were Huzam after the sentence and 
               before execution. All the more so a Moser is exempt, 
               especially if he only was Moser money. He is killed 
               like a Rodef, for the sake of the future, to save 
               the victim. If he already was Moser, Beis Din 
               punishes him according to letter of the law for what 
               he did, or more, for a fence (to deter others), 
               according to the needs of the time. If he is 
               habituated to do so, i.e. has done so three times, 
               he is like a Rodef, and anyone can kill him anywhere 
               at any time, with or without Beis Din, to save 
               others. The Rambam permits overtly killing him. R. 
               Chananel permits only to cast him into a pit so he 
               will die there, but not overtly killing him. Even R. 
               Chananel would to giving him to officers of the 
               kingdom to kill him, for this is not overt. Also 
               Teshuvas ha'Rosh says so.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Teshuvah 17:2):</font></b> If one was already Moser, and 
               there is fear lest he do so again, some permit 
               hiring Nochrim to punish him. Some forbid, for if a 
               Rasha was Mekadesh 'on condition that I am a 
               Tzadik', we are concerned lest he repented. The 
               first opinion says that this is a mere stringency of 
               Kidushin. R. Ami did not save a man from death 
               because people testified that he ate Isur to anger 
               Hash-m (Gitin 47a). He was not concerned lest the 
               man repented!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Yam Shel Shlomo (ibid.):</font></b> I say that killing 
                    through a Nochri is like overtly killing. We 
                    are stringent to say Yesh Shali'ach l'Davar 
                    Aveirah through Nochrim. The Gemara permits 
                    only lowering to a pit. Perhaps he will repent 
                    there and convince us that he will not do so 
                    again. If so, we take him out. Presumably, one 
                    may hire Nochrim only when there is concern 
                    lest he be Moser. Then, one may kill him 
                    overtly. It is slightly better through Nochrim 
                    if there is no concern lest this cause other 
                    problems.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Beis Yakov 2, cited by R. Akiva Eiger 
                    388:15):</font></b> We are stringent to say Yesh Shelichus 
                    l'Nochri, but since Nochrim are liable for 
                    murder, Ein Shali'ach l'Davar Aveirah for 
                    murder! Perhaps the Maharshal holds like the 
                    Tasbatz and Rema (388:15), who say that Yesh 
                    Shali'ach l'Davar Aveirah if the Shali'ach is 
                    established to transgress. The Beis Yosef says 
                    in the name of the Tashbatz that Ein Shali'ach 
                    l'Davar Aveirah applies only to Yisrael. 
                    However, in EH (5:14), the Rema rules like the 
                    Terumas ha'Deshen that Ein Shali'ach l'Davar 
                    Aveirah applies to Nochrim.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (388:11):</font></b> If a Moser carried out his 
               plot, one may not kill him unless he is established 
               to be Moser. Then, we kill him lest he be Moser 
               others. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mordechai (Bava Kama 196):</font></b> R. Simchah proves 
                    that the Rif disagrees. The Rif proved that we 
                    may not destroy property of a Moser from the 
                    unsettled question about an enactment to 
                    collect from a Moser, which discusses after he 
                    was Moser. The Amora'im argue about whether or 
                    not we make a Kal va'Chomer, but all agree that 
                    one may kill him!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Yam Shel Shlomo ibid.):</font></b> Why didn't R. 
                    Simchah ask about the Rambam, who forbids 
                    destroying a Moser's money, even though he 
                    forbids killing him after he was Moser! Rather, 
                    the Rambam distinguishes between before and 
                    after only regarding killing, but the one who 
                    permits destroying his money permits even 
                    afterwards. One may kill a Rodef who seeks to 
                    rape a man or Ervah only before the act. If we 
                    permit destroying his money, this is a fine, 
                    and it is even afterwards. This is why the Rif 
                    learned from 62a. Most forbid destroying his 
                    money.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> It seems that R. Simchah's proof was not 
                    from the Rif's rulings, rather, because the Rif 
                    learned from the question about the enactment. 
                    The Shach (55) says that the opinion of the 
                    Rif, like R. Simchah explains, is primary. 
                    Tosfos and Piskei ha'Tosfos agree. However, 
                    many follow the Rambam. 
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Lechem Sesarim (cited by R. Akiva Eiger):</font></b> What 
                    is the proof that the Rif argues? Perhaps he 
                    permits killing one who was established to be 
                    Moser! Rather, the question was even about one 
                    who was Moser only once, therefore, he must 
                    hold that even such a Moser may be killed.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Pri ha'Aretz (13, cited in R. Akiva Eiger):</font></b> 
                    Edus b'Yehosef (34) says that the Rif permits 
                    destroying a Moser's money after he was Moser, 
                    for then we cannot kill him and (he himself 
                    will use his money, so) we need not leave his 
                    money for a righteous heir. If so, how did the 
                    Rif learn from 62a? All agree afterwards! 
                    Rather, the Rif does not distinguish between 
                    before and after.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> SMA (29):</font></b> A Moser is like a Rodef, but he is no 
                    worse than a Rodef. After he was Moser, he 
                    cannot be killed without warning and Beis Din, 
                    unless he is established to be Moser.
 
<br><br><font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>COERCED KIDUSHIN </b></b>(</font><font color='darkblue'>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>FOR WHICH ITEMS DOES A THIEF PAY DOUBLE? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #1:</font></b> If so, the Torah should have written only 
          one Prat.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Which one should it have written?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it written only 'ox (or Seh)', one might have 
               thought that we include only animals that are 
               offered on the Mizbe'ach!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it written only 'donkey', one might have 
               thought that we only include animals for which the 
               firstborn has Kedushah!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, the Torah should have written only 
          'ox and donkey.' 'Seh' is extra to include birds.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Suggestion:</font></b> We should include only Tahor birds. They 
          are more similar to a Seh, for their carcasses are 
          Metamei (and even make Tamei the clothes of one who eats 
          them);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Tamei birds do not impart Tum'ah at all!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #3:</font></b> 'All' is a Ribuy (inclusion. We do not 
          expound it according to Klal u'Frat u'Chlal. Rather, it 
          includes all birds.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> We do not always expound 'all' like a Ribuy!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says 'all' regarding Ma'aser, but we expound 
               according to Klal u'Frat u'Chlal!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'You will spend the money on whatever 
               your soul desires' is a Klal. 'On cattle, flock, 
               wine and strong drink' are Peratim. 'And on all that 
               your soul requests' is another  Klal;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  From a Klal u'Frat u'Chlal we learn everything 
                    that is like the Prat, (in this case) whatever 
                    reproduces and grows from the ground.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1:</font></b> 'B'Chol (on all)' is a Klal. 'Kol (all)' is 
          a Ribuy.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Normally, 'all' is a Klal. Here, it is a 
          Ribuy.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There already was a Klal u'Frat u'Chlal. 'If a 
               man will give to his fellow man' is a Klal. 'Money 
               or Kelim' are Peratim. 'To guard' is another Klal;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had the Torah intended that 'for any 
               transgression' also be expound like a Klal u'Frat 
               u'Chlal, it would have written the Peratim with the 
               other Klalim ('when a man will give' and 'to 
               guard')!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rather, the Torah intended that 'for any 
               transgression' be expounded through Ribuyim (and 
               Mi'utim (exclusions)).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If so, what do the Peratim teach?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> One excludes land, one excludes slaves, one 
          excludes documents, and 'garment' excludes something not 
          specific (Rashi - it has no Simanim (ways to identify it; 
          Tosfos - it has no measure, or half of something);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'For any Aveidah' teaches like R. Chiya bar Aba.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Chiya bar Aba):</font></b> If one who found a lost 
                    object (falsely) claimed that later it was 
                    stolen from him, he pays Kefel - 'for any 
                    Aveidah that he will say'.
<br>
<br>

sjt:
<font><b>1) EXCLUDING 'AVADIM' FROM THE LAW OF 'TASHLUMEI KEFEL'</b></font><b>
<br>QUESTION:</b> The Gemara asks why all of the specific exclusions in the verses of Tashlumei Kefel are necessary ('Kol Hani Prati Lamah Li?'). It answers that one 'Prat' is necessary to exclude Karka (i.e. one does not pay Tashlumei Kefel for stealing land), one 'Prat' is necessary to exclude Avadim, and one 'Prat' is necessary to exclude Shtaros.
</p><p>
Since Karka and Avadim are excluded from the law of Tashlumei Kefel by two special Mi'utim, why does the Gemara earlier (62b) state that the reason why Avadim are excluded is the Hekesh which compares Avadim to Karka? Even without that Hekesh, Avadim would be excluded because of the explicit 'Prat' in the verse! (<b>RASHBA</b>)
</p><p>
<b>ANSWER:</b> The <b>RASHBA</b> answers that if the verse would have mentioned 'Karka'os,' 'Avadim,' and 'Shtaros' explicitly when teaching the exceptions from the law of Tashlumei Kefel, then indeed there would have been no need for a Hekesh of Avadim to Karka'os. However, they are <i>not</i> written explicitly in the verse. Rather, the exclusions of Karka'os and Shtaros are derived through Mi'utim: one 'Prat' teaches that only something that is movable ('Davar ha'Metaltel') is included in Tashlumei Kefel, thus excluding land which is not movable. Another 'Prat' teaches that only something that itself has monetary value ('Gufo Mamon') is included in Tashlumei Kefel, thus excluding Shtaros which have no intrinsic value of their own. How, though, are Avadim excluded? Avadim <i>are</i> movable and they <i>do</i> have intrinsic monetary value, and thus they <i>should</i> be included in Tashlumei Kefel! Therefore, it is necessary to have a Hekesh which compares Avadim to Karka; without the Hekesh it would not be known that the third 'Prat' is intended to exclude Avadim.
</p><p>
However, according to this explanation, the opposite question arises. If it is known that Avadim are excluded from Tashlumei Kefel because of the Hekesh to Karka, why is a special Mi'ut in the verse necessary at all for Avadim? (<b>RASHBA</b>, <b>TOSFOS</b>)
</p><p>
1. The <b>RASHBA</b> answers that since Karka is immobile while and Avadim are mobile, one might have thought that the Hekesh should not apply. Therefore, the verse adds a Mi'ut to exclude Avadim from Tashlumei Kefel.
</p><p>
2. The Rashba answers further that since the verse also teaches a Ribuy (words to <i>include</i> an additional category in the laws of Tashlumei Kefel) and it might mean that all items are to be included, it was necessary to have a special Mi'ut for each category of items (Karka'os, Avadim, Shtaros). This is also the answer of <b>TOSFOS</b> (DH v'Chad l'Mi'utei).
</p><p>
The <b>TOSFOS YOM TOV</b> (Bava Metzia 4:9) writes that this explains an oddity in the wording of the Mishnah there, where it lists, 'Avadim, Shtaros, and Karka'os,' when it should have listed instead, 'Avadim, Karka'os, and Shtaros' (placing Avadim together with Karka'os, since a Hekesh compares them). The reason why the Mishnah separates Avadim from Karka'os is to teach that Avadim are excluded on their own accord, by their own special Mi'ut in the verse, and not by virtue of their Hekesh to Karka'os. 
</p><p>


<font><b>2) A 'DAVAR SHE'EINO MESUYAM'</b></font><b>
<br>OPINIONS:</b> The Gemara teaches that the word 'Salmah' ('garment') in the verse (Shemos 22:8) teaches that one does not pay Tashlumei Kefel for an item that is a 'Davar she'Eino Mesuyam.' What does the Gemara mean by a 'Davar she'Eino Mesuyam'?
</p><p>
(a) <b>RASHI</b> explains that a 'Davar she'Eino Mesuyam' is an item which has no identifiable feature ('Siman') for the owner to use as proof that the item is his. When a Ganav steals such an item, he is not required to pay Tashlumei Kefel.
</p><p>
<b>TOSFOS</b> challenges this explanation by asking what difference should it make for the law of Tashlumei Kefel whether or not the item has an identifiable feature? What logical reason is there to say that the Ganav should not pay Kefel?
</p><p>
The <b>ME'IRI</b> explains that Rashi means that the verse refers to a person who was watching a lost item that he found, who then claims (when the owner comes to reclaim his item) that the item was stolen from him ('To'en Ta'anas Ganav'). Although the continuation of the verse obligates such a person to pay Kefel ('Al Kol Aveidah'), he pays Kefel only when the lost item had a 'Siman' by which the owner could have otherwise reclaimed it. The logic behind this is that a person who finds an item which has no 'Siman' has no obligation to return the item to its owner, and thus he does not have the status of a 'Shomer Aveidah,' and, consequently, the law of 'To'en Ta'anas Ganav' does not apply to him (<b>CHIDUSHEI HA'RAN</b>, Bava Metzia 25a, cited by <b>YOSEF DA'AS</b>).
</p><p>
(b) <b>TOSFOS</b> (in the name of the <b>RIVA</b>) and other Rishonim explain that a 'Davar she'Eino Mesuyam' is an item which has no quantifiable volume, weight, or other measure. The Mishnah in Shevuos (42b) teaches that one makes a Shevu'ah of 'Modeh b'Miktzas' only when one admits partial liability for an item that is <i>measurable</i>. The Gemara here derives from the verse that if one claims from his friend, 'I gave to you a house full [of items to watch],' and his friend responds, 'What you left here is yours to take,' without admitting to owing a specific measure or amount, no Shevu'ah of 'Modeh b'Miktzas' is made. If the defendant claims that whatever was given to him was stolen and then he is found to be the thief, he does not pay Kefel. (That is, the verse refers to both the Halachah of Shevu'ah for 'Modeh b'Miktzas' and the Halachah of Kefel. See <b>RASHBA</b>.) This is in contrast to a case in which the claimant says, 'I gave you a house full [of items to watch] up to the window,' and the defendant says, '[The items only reached] up to the pipe [below the level of the window],' which <i>is</i> a case of a 'Davar Mesuyam' in which the defendant must make a Shevu'ah of 'Modeh b'Miktzas.' The <b>RA'AVAD</b> (cited by the Shitah Mekubetzes), however, writes that 'Salmah' in the verse is a Mi'ut only with regard to the Halachah of a Shevu'ah of 'Modeh b'Miktzas' but not with regard to the Halachah of Kefel.
</p><p>
The <b>RASHBA</b> adds that the verse excludes from the law of Kefel a Shomer who is 'To'en Ta'anas Ganav' for an object that has no measure, because a Shomer does not make a Shevu'ah for such an item. In contrast, an ordinary Ganav who steals an item that has no measure <i>does</i> pay Kefel, since his obligation to pay does not depend on a Shevu'ah (unlike a Shomer who is 'To'en Ta'anas Ganav').
</p><p>
(c) <b>TOSFOS</b> and the <b>RASHBA</b> cite another explanation. They explain that 'Davar she'Eino Mesuyam' refers to an item that is not a <i>complete</i> item. For example, if a Ganav steals half of a fruit or half of a nut, he has no obligation of Tashlumei Kefel. According to this explanation, the Mi'ut of the verse of a 'Davar she'Eino Mesuyam' from the law of Tashlumei Kefel refers not only to 'To'en Ta'anas Ganav' but to an ordinary case of Geneivah as well.
</p><p>
<b>REBBI AKIVA EIGER</b> (in <b>GILYON HA'SHAS</b> here) points out that Tosfos in Shabbos (93b, DH Amai) states that the law of Tashlumei Kefel applies to <i>any</i> item of any size, regardless of whether the item is complete or incomplete.
</p><p>
<b>RAV ELCHANAN WASSERMAN</b> Hy'd (in Kovetz Shi'urim, Bava Metzia) explains that Tosfos there refers to a specific case of partners who stole an ox. Each partner is obligated to pay Kefel for <i>half</i> of the ox. Even Tosfos here would agree in such a case that one pays Kefel for <i>half</i> of an item (half of the ox), since a <i>whole</i> item was stolen (the ox); it is just that each Ganav is held accountable only for half of it since they stole it together. In such a case, the Ganavim are not exempt from Kefel.
</p><p>
(d) The <b>RAMBAN</b> in Bava Metzia (57b, DH Ha d'Tanu Rabanan) explains that a 'Davar she'Eino Mesuyam' refers to a half of a Kli which is not worth two Ma'os of Kesef. The verse excludes such an item from the law of Tashlumei Kefel when a Shomer makes a claim of 'Ta'anas Ganav.' This is because the Shevu'ah made by a Shomer applies only to a Kli that is worth at least two Ma'os of Kesef. (This applies when the Kli is incomplete. For a complete Kli, a Shomer makes a Shevu'ah even when it is worth less than two Ma'os.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>EXEMPTIONS FROM KEFEL FOR ONE WHO CLAIMED THAT IT WAS STOLEN</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Shimon claimed that Reuven's deposit 
               was lost, and he swore falsely, and witnesses 
               testify that Shimon ate it, he pays the value. If he 
               swore that it was stolen, and witnesses testify that 
               he ate it, he pays Kefel.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> Kefel applies only to a claim of 
               Geneivah, but not to a claim that it was lost. Even 
               one who claims that it was stolen pays Kefel only if 
               he swore!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 107b (R. Chiya bar Yosef):</font></b> One who claims that a 
               deposit was stolen pays Kefel only if he was 
               Shole'ach Yad (took it for his own needs).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> He learns from 'the Shomer... will swear that he was 
               not Shole'ach Yad... (For any negligence, he pays 
               Kefel)' implies that if he did take it, he pays 
               Kefel.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Inference:</font></b> This (Kefel) is only if he was Shole'ach 
               Yad.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (R. Chiya bar Aba citing R. Yochanan):</font></b> The case is, 
               the deposited animal is at the feeding trough (he 
               did not take it).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question (R. Zeira):</font></b> Does R. Yochanan teach that had 
               he been Shole'ach Yad, he would be a Gazlan (not a 
               Ganav), therefore he would not pay Kefel;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Or, does he teach that even if it is at the 
                    feeding trough, if he claims that it was 
                    stolen, he pays Kefel?
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> R. Chiya bar Aba:</font></b> I did not hear about this, but I 
               heard a similar case.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Asi citing R. Yochanan):</font></b> If he swore that 
                    it was lost, then swore that it was stolen, and 
                    witnesses testified that he had it, he does not 
                    pay Kefel.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> This is because he acquired the 
                    deposit through his first oath (and owes 
                    principal. From then, it is his, so he cannot 
                    pay Kefel for it.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rejection:</font></b> No. Rather, once he swore (that it was 
               lost), he need not swear again, so the second oath 
               is not considered a Shomer's oath to obligate Kefel.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> R. Avin said so in the name of R. Yochanan.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> If one claims that a deposit was 
               stolen, and he took it (before he swore), he is 
               exempt (from Kefel).
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> He learns from 'he will come to the judges, if he 
               was not Shole'ach Yad in his friend's object.' This 
               implies that if he did take it, he is exempt (from 
               Kefel).
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question (Rav Nachman):</font></b> He must make three oaths: 
               that he was not negligent, that he was not Shole'ach 
               Yad, and that it is not in his domain.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> The last two oaths are similar. 
                    Just like he pays Kefel if we find that he 
                    swore falsely that it is not in his domain (for 
                    really, he stole it), also if we find that he 
                    swore falsely that he was not Shole'ach Yad!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer (Rav Sheshes):</font></b> No, the first two oaths are 
               similar. Just like if he swore falsely that he was 
               not negligent, he (is like a Gazlan, who) does not 
               pay Kefel, if he swore falsely that he was not 
               Shole'ach Yad.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (26b):</font></b> If a Shomer (falsely) claimed that the 
               item was stolen, he pays Kefel. This is only if he 
               swore, and then witnesses came. If he did not swear, 
               he pays only principal. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Ba'al ha'Ma'or 37b):</font></b> Why did the Rif 
                    omit the teaching of R. Chiya bar Aba? Even 
                    though we do not obligate fines nowadays, we 
                    must rule in case he seized (to know whether or 
                    not we force him to return it)!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Milchamos Hash-m):</font></b> The fine applies 
                    only after a proper oath in Beis Din, which 
                    requires judges with Semichah. We have no such 
                    judges.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishneh l'Melech:</font></b> Why did the Rosh and Tur 
                    bring this? Nowadays we do not judge Kefel 
                    (Beis Yosef CM 1:8 DH u'Mah she'Chosav 
                    umi'Lashon)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Geneivah 4:1):</font></b> If he swore that it 
               was stolen from his house, and witnesses came and 
               said that the deposit was with him, he pays Kefel, 
               for he himself is the thief. If witnesses came 
               before he swore, he pays only principal. 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (2):</font></b> This is when he swore before he was 
               Shole'ach Yad. If he was Shole'ach Yad, swore that 
               it was stolen and witnesses came, he is exempt from 
               Kefel. Once he was Shole'ach Yad he became liable 
               for it and acquired it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> This is not the Halachah, 
                    for R. Yochanan disagrees. He said that if he 
                    swore that it was lost, then swore that it was 
                    stolen, and witnesses came, he is exempt, for 
                    he exempted himself from the owner through the 
                    first oath. We do not say that he became a 
                    Gazlan and acquired it! Even though he acquired 
                    it like a Gazlan and is liable for Onsim, since 
                    he exempted himself through a claim of 
                    Geneivah, he is a Ganav and pays Kefel. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rambam rules like Rav 
                    Sheshes, and also (Halachah 3) like this 
                    teaching of R. Yochanan. He holds that they do 
                    not disagree. Even though Shlichus Yad before 
                    the oath exempts from Kefel, it is not because 
                    he became a Gazlan. Rather, it is a Gezeras 
                    ha'Kasuv. Therefore, if he swore that it was 
                    lost, then swore that it was stolen, he would 
                    pays Kefel if we didn't say that the 1she is 
                    exempt oath exempts him from the owner. We do 
                    not exempt him became he became a Gazlan. As 
                    long as he was not Shole'ach Yad, it is in the 
                    owner's Reshus. Some, e.g. the Rashba, reject 
                    Rav Sheshes, for Rav Nachman challenged him. 
                    Perhaps Rav Nachman does not disagree; he 
                    merely wanted to hear Rav Sheshes' reasoning. 
                    Rav Sheshes answered the question! R. Chiya bar 
                    Aba holds like Rav Sheshes. Even though R. 
                    Zeira rejected this, he merely means that there 
                    is no proof from here. This is not enough to 
                    reject Rav Sheshes' teaching.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rashba (107b DH Omar):</font></b> The Halachah does not 
                    follow Rav Sheshes, who exempts one who he was 
                    Shole'ach Yad, for Rav Nachman challenged him. 
                    Perhaps also the Halachah is unlike R. Chiya 
                    bar Yosef, who argues with Rav Sheshes and 
                    exempts until he is Shole'ach Yad, for R. Chiya 
                    bar Aba said that R. Yochanan obligates when it 
                    was at the feeding trough. However, R. Chiya 
                    was unsure if R. Yochanan meant only in this 
                    case (but if he was Shole'ach Yad, he 
                    acquired), or even if it is at the feeding 
                    trough. However, we rejected this; he is exempt 
                    from Kefel because he exempted himself from the 
                    owner through the first oath. We support this; 
                    R. Yochanan himself said so, so the Halachah 
                    follows R. Chiya bar Yosef. Also R. Chananel 
                    says so.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (7:1):</font></b> If a Shomer falsely claimed that the 
               item was stolen, he pays Kefel. 
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (9:29):</font></b> The Halachah does not follow R. Chiya 
               bar Yosef or Rav Sheshes, rather, R. Chiya bar Aba. 
               He pays Kefel even if it is at the feeding trough. 
               If one who swore that it was lost, then swore that 
               it was stolen, and witnesses came, he is exempt from 
               Kefel, for his first oath exempted him from the 
               owner. We do not exempt because he acquired it! This 
               shows that the oath does not exempt and Shlichus Yad 
               does not exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tosfos (107b DH Ho'il):</font></b> Even though he admits 
                    that his first oath (that it was lost) was 
                    false, he need not swear again. He is believed 
                    to say that it was stolen, Migo (since) he 
                    could have said that it was lost and he is 
                    exempt. Even if Beis Din made him swear, e.g. 
                    another Beis Din that did not know that he 
                    already swore, he is exempt because he did not 
                    need to swear. 
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Tur (CM 352):</font></b> If one was Shole'ach Yad first, the 
               Rambam exempts from Kefel even if he later swore and 
               witnesses came. The Rosh says that he is liable. 
<br>


lvr: 41
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A CLAIM THAT THE ITEM WAS LOST OR STOLEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon claimed that the item Reuven 
          deposited with him was lost, and Reuven imposed an oath 
          on him, and he answered 'Amen', and witnesses testify 
          that Shimon ate it, he pays the value;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he admits by himself, he pays the value, 
               Chomesh (an added fifth, i.e. a fourth of the 
               principal), and brings a Korban Asham.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Shimon claimed that the item was stolen, and 
          answered 'Amen' to the oath, and witnesses testify that 
          Shimon ate it, he pays Kefel;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he admits by himself, he pays the value, a 
               Chomesh, and brings an Asham.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Inference:</font></b> Kefel applies only to one who claims that it 
          was stolen, but not to one who claims that it was lost;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even one who claims that it was stolen pays Kefel 
               only if he swore!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of these laws?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Beraisa #1):</font></b> 'Im Yimatzei ha'Ganav (if the 
          thief will be found)' discusses one who claims that it 
          was stolen.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps it discusses an actual thief!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Im Lo Yimatzei' discusses one who 
               claims that it was stolen, so also Im Yimatzei 
               discusses one who claims that it was stolen.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa #2):</font></b> 'Im Yimatzei ha'Ganav' 
          discusses an actual thief.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps it discusses one who claims 
               that it was stolen!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Im Lo Yimatzei' discusses one who 
               claims that it was stolen, so Im Yimatzei discusses 
               one who claims that it was stolen.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Both Beraisos agree that 'Im Lo ha'Ganav' 
          discusses one who claims that it was stolen. How do we 
          know this?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> 'Im Lo Yimatzei ha'Ganav' - it will not 
          be found like he says, rather, he stole it, 'he will pay 
          Kefel.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of that he pays only if he 
          swore?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'The (Shomer) will draw close to the 
          judges' - to swear.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he draws close for judgment, 
               not to swear!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> It mentions unauthorized use here 
               (regarding a Shomer Chinam) and later (regarding a 
               Shomer Sachar). Just like later he swears, also 
               here.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, (the) Tana (of Beraisa) #2 holds 
          that one verse discusses an actual thief, and one 
          discusses a Shomer who claims that it was stolen;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Tana #1, why do two verses both 
               discuss a Shomer who claims that it was stolen?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> One is needed to exclude a Shomer who claims 
          that it was lost.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> How does Tana #2 learn this?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> It says 'the thief' ('the' excludes a claim 
          that it was lost).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> What does Tana #1 learn from this?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> He learns R. Chiya bar Aba's law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya bar Aba):</font></b> If a Shomer (falsely) claimed 
               that the item was stolen, he pays Kefel. If he 
               slaughtered or sold it, he pays four and five.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is Tana #2's source for this?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The Torah writes the law of an actual 
               thief adjacent to the law of one who claims that the 
               item was stolen. This equates their laws.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> We understand Tana #2. (He holds that one 
          verse discusses an actual thief, and teaches that an 
          actual thief pays Kefel, and four and five.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Tana #1 holds that neither verse discusses an actual 
               thief. What is his source that an actual thief pays 
               Kefel, four and five?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> He learns from a Kal va'Chomer. One 
               who claims that the item was stolen pays Kefel, four 
               and five, all the more so, an actual thief pays 
               them!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> The principal of Dayo (a Kal va'Chomer 
               cannot teach more than the source) allows us to 
               learn only in the same situation, i.e. after 
               swearing!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> He learns like Tana d'Vei Chizkiyah (below). 
<br>

sjt:
</p><p>
<font><b>3) A SHOMER'S CLAIM OF 'GENEIVAH'</b></font><b>
<br>QUESTION:</b> The Gemara seeks the source for the Halachah that a Shomer -- who stole an item that was deposited with him for safekeeping and claims falsely that the item was stolen from him ('To'en Ta'anas Ganav') -- must pay Tashlumei Kefel only when he makes a Shevu'ah that the item was stolen from him. The Gemara quotes the verse, '[If the thief is not found,] the owner of the house (the Shomer) shall be brought to the judges [that he did not misuse his friend's possession]' (Shemos 22:7). The Gemara asks that perhaps this means that he approaches the court <i>not</i> for the purpose of making a Shevu'ah, but for the purpose of 'Din.' <b>RASHI</b> (DH O Eino Ela l'Din) explains that this means that the Shomer is brought to court by the owner of the item to make him pay (and not to make him swear), since a Shomer Chinam (one who does not receive payment for watching the item) must pay when he claims that the item was stolen.
</p><p>
The words of Rashi imply that the initial assumption of the Gemara is that a Shomer Chinam cannot exempt himself from paying by making a claim that the item was stolen. If he claims that the item was stolen, he must pay the Keren (principle).
</p><p>
According to the Gemara's assumption at this stage (that a Shomer pays the Keren without a Shevu'ah), when is there ever a case of a Shomer who pays Kefel for making a claim that the item was stolen? If he pays only the Keren, he does not pay Kefel, and yet the Gemara earlier teaches that everyone agrees that a Shomer who makes a claim of Geneivah must pay Kefel.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHAL</b> and <b>MAHARAM</b> write that Rashi's intention is not that the Shomer must pay Keren <i>now</i> when he claims that the item was stolen. Rather, Rashi means that a Shomer Chinam who claims a 'Ta'anas Ganav' is exempt from paying altogether, and if witnesses come <i>later</i> and testify that the Shomer himself stole the item, he must pay Kefel <i>even without a Shevu'ah</i>. This is the intention of Rashi here, and it is also what Rashi writes in Bava Metzia (41b). 
</p><p>
(b) The <b>MAHARSHA</b> does not accept this answer because Rashi's use of the word, 'l'Pira'on' ('for compensatory payment'), implies that he refers to a Shomer who is paying the Keren. Instead, the Maharsha explains that Rashi's intention is that the Shomer Chinam indeed pays the Keren now and, nevertheless, if it is discovered later that he is the thief, he must pay Kefel because of the Gezeiras ha'Kasuv.
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE SOURCE FOR PAYING KEFEL, FOUR AND FIVE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Tana d'Vei Chizkiyah):</font></b> The Torah should have 
          said only 'ox' and 'theft', and we would know that Kefel 
          applies to everything!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> If the only example (of a stolen object) was 
          'ox', we would include only animals that are offered on 
          the Mizbe'ach!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This would include a Seh. However, the verse also 
               says 'Seh'! We must say that 'theft...' includes 
               everything! (The Gemara proceeds to explain this.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> It would have sufficed to write 'ox, 
               Seh, theft'!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> If so, we would learn only animals whose 
               firstborn have Kedushah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This would include a donkey. However, the verse 
                    explicitly says 'donkey'! We must say that 
                    'theft...' includes everything!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> It would have sufficed to write 'ox, 
               donkey, Seh, theft'!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> If so, we would include only living 
               things.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The verse says also 'living'! We must say that 
                    ('theft...') includes everything!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why did Tana d'Vei Chizkiyah say 'had the 
          Torah said only 'ox' and 'theft''? 'Theft' is written 
          before 'ox'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Tana means 'had the Torah written 
               'ox... theft...'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, 'ox' would be a Prat, and 
               'theft' a Klal. From a Prat u'Chlal we learn 
               everything!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, the Tana means 'had the Torah written 
          only 'theft... ox...'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why would we think that all is 
          included?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Theft' would be a Klal, and 'ox' would be a 
               Prat. From a Klal u'Frat we learn only the Prat, 
               an ox!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The Tana relies on 'living', a second 
          Klal. There is a Klal u'Frat u'Chlal.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> The second Klal (includes only living 
          things. This) is unlike the first Klal!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> He holds like Tana d'Vei R. Yishmael, who 
          expounds such a Klal u'Frat u'Chlal. The Tana asks as 
          follows:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why do we need 'Im Himatzei Simatzei?' 
               We could learn everything from (the Klal u'Frat 
               u'Chlal) 'ox, theft, living'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> If the only Prat was 'ox', we would 
               include only animals that are offered on the 
               Mizbe'ach.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> This would include a Seh. However, the 
               Torah explicitly wrote 'Seh'!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rather, we must say that 'theft...' comes to 
                    include everything (through the method of 
                    Klalim and Peratim);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  (Summation of question):</font></b> It would have 
                    sufficed to write 'theft, ox, Seh, living'!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> If so, we would have included only 
               animals whose firstborn have Kedushah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> That would include a donkey. However, 
               the Torah explicitly wrote 'donkey'!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We must say that 'theft...' includes everything. 
                    It would have sufficed to write 'theft, ox, 
                    Seh, donkey, living'!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> If so, we would include only living 
               things.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> The Torah explicitly writes 'living' 
               (which includes all living things)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We must say that 'theft...' includes everything. 
                    Why did the Torah need to write 'Im Himatzei 
                    Simatzei'?
<br>
<br>

sjt:
<font><b>1) INCLUDING A 'DAVAR HA'MESUYAM' IN THE LAW OF 'KEFEL'</b></font><b>
<br>QUESTION:</b> The Gemara suggests that the word 'Chamor' in the verse (Shemos 22:3) should be viewed as a 'Prat' that comes between the two 'Kelalim' of 'Himatzei Timatzei,' and it is in intended 'to include a Davar ha'Mesuyam' in the law of Tashlumei Kefel.
</p><p>
This is the Girsa of our texts of the Gemara and the Girsa of Rashi. The Girsa of Tosfos -- 'to <i>exclude</i> a Davar <i>she'Eino</i> Mesuyam,' has the same Halachic consequence, that only a 'Davar ha'Mesuyam' is included in Tashlumei Kefel. However, according to Tosfos, the emphasis of the Chidush is more accurate, since there is no reason to <i>exclude</i> a 'Davar ha'Mesuyam' such that a verse is needed to include it. Rather, one would have assumed that all items are included, and the verse comes and teaches that a 'Davar she'Eino Mesuyam' is <i>excluded</i>.
</p><p>
Tosfos (DH li'Me'uti) cites an alternate Girsa which says that the verse is intended 'to <i>include</i> a Davar <i>she'Eino</i> Mesuyam' in the law of Tashlumei Kefel. Tosfos earlier (63a, DH Davar) questions this Girsa and asks why is a verse necessary to include a 'Davar she'Eino Mesuyam' in the law of Tashlumei Kefel of an ordinary Ganav? For what reason would one have thought that such an item should be excluded, such that a verse is needed to include it? Therefore, Tosfos concludes that the Girsa which says that a 'Davar she'Eino Mesuyam' is <i>excluded</i> from the law of Tashlumei Kefel is the correct Girsa, since that indeed is a Chidush, because without the verse such an item would have been included in the law of Tashlumei Kefel. 
</p><p>
Is there any way to explain the Gemara based on the alternate Girsa? Moreover, how is the Girsa of our text, which emphasizes that the Chidush is that a 'Davar ha'Mesuyam' is included in Kefel, to be understood? Why would one have thought that such an item is not included?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>REBBI AKIVA EIGER</b> (in <b>GILYON HA'SHAS</b> 63a) refers to the <b>ROSH</b> in Kidushin (1:2). The Rosh there explains that when the Gemara says (according to that Girsa), 'to include a Davar she'Eino Mesuyam,' the intention is not to include such an item in the law of Tashlumei Kefel, but rather to <i>exclude</i> such an item. It is as if the Gemara is saying that such an item is <i>included</i> in the <i>exclusion</i> from Tashlumei Kefel.
</p><p>
This explanation, however, does not explain the Girsa of our texts. Why does the Gemara say that the verse includes a 'Davar ha'Mesuyam' in the law of Tashlumei Kefel? Why would one have thought that such an item is not included? The Gemara cannot mean to say that such an item is excluded (as the Rosh explains for the Girsa of 'to include a Davar she'Eino Mesuyam'), since such an item certainly is included in the law of Kefel.
</p><p>
(b) <b>TOSFOS RABEINU PERETZ</b> explains that our Girsa means that a 'Davar she'Eino Mesuyam' is specifically <i>excluded</i>, like the intent of the Girsa of Tosfos. The reason it does not state explicitly (like Tosfos' Girsa), 'to <i>exclude</i> a Davar <i>she'Eino</i> Mesuyam,' seems to be that the Gemara wants to be consistent with the previous Derashah ('to include an item that is not living') and to be consistent with the question of the Gemara, 'When 'Chamor' is placed between 'Himatzei' and 'Timatzei,' what is it meant <i>to include</i>?' since the verse is utilized as a 'Klal-Prat-Klal' whose purpose is to <i>include</i> items in the Halachah.
</p><p>


<font><b>2) EXCLUDING A 'DAVAR SHE'EINO MESUYAM' FROM THE LAW OF 'KEFEL'</b></font><b>
<br>QUESTION:</b> The Gemara says that the Pratim ('Shor,' 'Chamor,' and 'Seh') in the verse of Tashlumei Kefel (Shemos 22:3) are needed to exclude Karka, Avadim, and Shtaros from the law of Kefel.
</p><p>
According to this conclusion of the Gemara, what is the source that a 'Davar she'Eino Mesuyam' is excluded from the law of Kefel? Earlier, the Gemara excludes it from the Prat of 'Chamor,' but now that the Prat of 'Chamor' is being used to exclude something else, what excludes a 'Davar she'Eino Mesuyam' from the law of Kefel?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS RABEINU PERETZ</b> answers that once the Torah has taught that a 'Davar she'Eino Mesuyam' is excluded from Kefel in the case of 'To'en Ta'anas Ganav' (with the Prat of 'Salmah' in Shemos 22:8; see 63a and Insights to 63:2), it is known that it is excluded in the case of an ordinary Ganav as well. That is, the exclusion of a 'Davar she'Eino Mesuyam' from Kefel in the case of a Ganav may be learned from its exclusion in the case of 'To'en Ta'anas Ganav.'
</p><p>
In contrast, Karka, Avadim, and Shtaros need a special Mi'ut in both cases, the case of 'To'en Ta'anas Ganav' and the case of an ordinary Ganav, because one case cannot be derived from the other. In the case of an ordinary Ganav, one would have thought that the Ganav is obligated to pay Kefel for stealing those items since he committed an actual deed of Geneivah. On the other hand, had the Torah taught the exclusion of those items from Kefel only in the case of a Ganav, one would have thought that one who is 'To'en Ta'anas Ganav' must pay Kefel for those items because he made a Shevu'ah. Therefore, the Torah needs to teach in both cases that these items are excluded from the law of Kefel.
</p><p>
(b) Tosfos Rabeinu Peretz answers further that once the Torah has taught that Ganav and 'To'en Ta'anas Ganav' are the same with regard to the Mi'ut of Karka, Avadim, and Shtaros by writing Mi'utim in both cases, the laws of Ganav can be derived from the laws of 'To'en Ta'anas Ganav' with regard to 'Davar she'Eino Mesuyam.' When the Gemara attempted to exclude this item from the verse of Ganav, that was before it was known that the laws of Ganav could be learned from the laws of 'To'en Ta'anas Ganav.'
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DOES ADMISSION EXEMPT FROM A FINE?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava bar Ahila'i):</font></b> Rav exempts one who admits to a 
               fine, even if witnesses came later. He learns from 
               'Im Himatzei Simatzei', for 'whom the judges will 
               convict' already excludes one who incriminates 
               himself.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 74b (Rav Huna, and Shmuel):</font></b> He is liable after 
               witnesses testify.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If witnesses testified that Reuven stole, 
               and we know that he sold from one witness or from 
               Reuven's admission, he pays Kefel, but not four or 
               five.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This equates admission and one witness. When one 
               witness testified, if another witness comes later, 
               they join to make him pay. Similarly, when he 
               admitted, if witnesses later come, he is liable! 
               This is unlike Rav Huna.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Rav Chisda - Beraisa):</font></b> Once, R. Gamliel 
               told Yehoshua 'I blinded my slave's eye.' R. 
               Yehoshua said 'he does not go free, for you have no 
               witnesses.'
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Inference:</font></b> If he had witnesses, the slave would go 
               free, even though R. Gamliel already admitted. This 
               contradicts Rav Huna!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1 (Rav Huna):</font></b> This was because he did not 
               admit in front of Beis Din.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Objection:</font></b> R. Yehoshua was the Av Beis Din!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #2 (Rav Huna):</font></b> His admission did not count, 
               for it was not in Beis Din.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Hamnuna):</font></b> Rav exempts from Kefel when he 
               admitted before witnesses came and obligated himself 
               to pay principal. Admission to selling after 
               testimony about the theft does not obligate him, so 
               if witnesses came later, he is liable.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Rava:</font></b> Rav Chisda asked from the Beraisa. Rav Huna 
               did not answer that R. Gamliel's admission did not 
               help because he did not obligate himself! 
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Support (for Rav Hamnuna - Rav Ashi - Mishnah):</font></b> If 
               witnesses testified that he stole, and one witness 
               testified or he admitted that he sold, he pays only 
               Kefel.
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> We equate admission to selling and testimony of one 
               witness. If more witness(es) come later, he pays 
               four or five only when his admission did not 
               obligate himself. However, if one witness testified 
               that he stole and sold, this is unlike admission. If 
               one witness came, and later a second comes, he pays 
               four or five. When he admitted and obligated himself 
               to pay principal, he is exempt from the fine.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (7:8):</font></b> Admission exempts from a fine 
               only if he obligated himself.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (Bava Metzi'a 19a):</font></b> We don't collect fines in 
               Bavel, but if the victim seized, we do not take it 
               from him, in Eretz Yisrael or Chutz la'Aretz. 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Geneivah 3:8):</font></b> If one admitted to a 
               fine in front of Beis Din in Beis Din and witnesses 
               came later, he is exempt. If he admitted outside of 
               Beis Din, or in front of two, and witnesses came 
               later, he pays a fine.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam holds that even 
                    admission in front of two judges does not 
                    exempt, for fines require three expert judges. 
                    Why did the Gemara need to say that R. Yehoshua 
                    was not in Beis Din? If he was in Beis Din, 
                    surely his colleagues would have been with him. 
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (9):</font></b> If one admitted in Beis Din that he 
               stole, and later, witnesses testified that he stole, 
               he is exempt, for he obligated himself to pay 
               principal. If he denied stealing, and witnesses 
               testified that he stole, and he admitted that he 
               slaughtered or sold, and later witnesses testified 
               that he slaughtered or sold he pays four or five, 
               for he totally exempted himself until witnesses 
               came. 
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (1:20):</font></b> The Ramban says that nowadays we have 
               no Semuchim, so every admission is like admission 
               outside of Beis Din, which does not exempt (84b). 
               Therefore, we do not take from a victim who seized 
               before or after admission. The Ramah says that 
               seizure helps only up to the value of the damage. If 
               one seized more, e.g. Kefel, we remove it. We find 
               that Chachamim allowed keeping only up to the 
               damage. Also, it is an enactment that seizure helps. 
               Chachamim enacted only up to the damage, so the 
               victim will not lose, but not that he should profit 
               from others' money. I say that it is mid'Oraisa law, 
               just no judge in Bavel can enforce it. Therefore, 
               the victim may take the law into his own hands. 
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Ritva (Shevu'os 33b Sof DH v'Im):</font></b> If David claimed 
               that Levi raped David's daughter, and Levi said 'I 
               never raped a girl', and witnesses testify that they 
               saw him rape, he is exempt from the fine, for he 
               incriminated himself. Just like admission exempts, 
               'admission' through denial exempts. The Yerushalmi 
               obligates a fine in this case.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  R. Meir Simchah (Shevu'os 34a DH v'Hinei):</font></b> 
                    Rashi says that admission exempts even if 
                    witnesses come later because he wanted to 
                    return money. One who denied is liable if later 
                    witnesses testify that he raped her. The 
                    Yerushalmi obligates even through witnesses who 
                    do not know whom he raped. It holds that 
                    liability to pay a fine comes immediately, if 
                    witnesses testify later. We found out through 
                    the witnesses and his (denial, which works like 
                    an) admission. He is liable because he did not 
                    admit before we knew.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos (in Tur ha'Shalem CM 348:30):</font></b> Sha'ar 
                    ha'Mishpat (1) says that if one accepted judges 
                    of Chutz la'Aretz to judge a fine, he is 
                    exempt, for he incriminated himself.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (CM 348:4):</font></b> The Mechaber did not teach when a 
               Ganav pays four or five because it is a fine and 
               does not apply nowadays. However, it is relevant if 
               he seized the money; see CM 1:5.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (11):</font></b> Perhaps the Mechaber holds like the 
                    Ramah; it is an enactment that seizure helps up 
                    to the value of the damage. The Rema holds like 
                    the Rosh, that mid'Oraisa one who seized the 
                    full fine need not return it. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Tur (348):</font></b> A Ganav pays Kefel, four and five only if 
               witnesses came. If he admitted, he pays only 
               principal, even if witnesses came later, for he 
               obligated himself to pay principal. If he denied 
               stealing, and after witnesses testified that he 
               stole he admitted that he sold, and later witnesses 
               testified that he sold, he pays four or five. 
               Admission to a fine exempts only in front of Beis 
               Din and in the place of Beis Din. Admission in front 
               of two, or in front of three outside of Beis Din, 
               does not exempt from a fine.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Omar v'Afilu):</font></b> One is 
                    exempt only if he obligated himself and 
                    intended to return money. 
<br>


