# dafyomi

lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE AVOS NEZIKIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> There are four Avos Nezikin (primary 
          categories of damagers): an ox, a pit, Mav'eh (explained 
          below), and fire.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Re'i of an ox is unlike that of Mav'eh, and vice-
               versa. (Usually, Re'i refers to a stringency. 
               Initially, the Gemara understands that here it 
               refers to a leniency.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Re'i of these two, which are alive, is unlike 
               that of fire, which is not;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Re'i of these three, which move and damage, is 
               unlike that of a pit, which does not;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The common side of all four is that their nature 
               is to damage, and you are obligated to guard them. 
               If they damaged, the damager must pay from Meitav 
               (highest quality land).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE TOLDOS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> If these are Avos, there must be 
          Toldos (offshoots).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Are the Toldos like the Avos, or not?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> (Regarding Shabbos) there are 39 Avos 
               Melachos. The Toldos are like the Avos;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The punishment for either is stoning (if Mezid) 
                    or a Korban Chatas (if Shogeg).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What difference does it make if they 
               are Avos or Toldos?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> If someone did two Avos or two Toldos (of 
               different Melachos, b'Shogeg), he brings two 
               Chata'os;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he did an Av and a Toldah of that same 
                    Melachah, he only brings one Korban.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> R. Eliezer says that in all cases, he 
               brings a Korban for every Melachah. How does he 
               explain the difference between Avos and Toldos?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Those that were done in the Mishkan are 
               important, so they are called Avos. The others are 
               less important, so they are called Toldos.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Avos ha'Tum'ah (include) Sheratzim 
               (rodents), semen, and one who became Tamei through a
               corpse.
<br>
<br>

sjt:
<font><b>1) THE LIST OF THE FOUR 'AVOS NEZIKIN'</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that there are four 'Avos Nezikin.' <b>TOSFOS</b> and the Rishonim point out that the Mishnah does not use the term 'Hen' ('it says 'Arba'ah Avos Nezikin' and not 'Arba'ah Avos Nezikin <i>Hen</i> -- 'four Avos Nezikin <i>they are</i>'), as it normally does when it lists a number of items and introduces the list with a number, and gives no descriptive terms for the items in the list. Similarly, the Gemara later (4b) cites a Beraisa of Rebbi Oshiya that lists thirteen Avos Nezikin, and a Beraisa of Rebbi Chiya that lists twenty-four Avos Nezikin, and both of those Beraisos omit the word 'Hen.' The Rishonim mention that the only other place where the Mishnah presents a numbered list without the word 'Hen' is in Kerisus (8b), where the Mishnah says that there are 'Arba'ah Mechusrei Kaparah' and it does not say 'Arba'ah Mechusrei Kaparah <i>Hen</i>.'
</p><p>
Why does the Mishnah here leave out the word 'Hen'?
</p><p>
<b>ANSWERS:</b> The Rishonim suggest a number of answers which complement each other.
</p><p>
(a) The <b>RASHBA</b> suggests that the Mishnah does not say 'Hen' to allude to the fact that these are not the only Avos Nezikin. There actually are more Avos Nezikin, as Rebbi Oshiya and Rebbi Chiya list. The Mishnah does not count the other Nezikin because it chooses to present a limited list (see reasons on 4b). The same is true for Rebbi Oshiya's Beraisa which omits the Avos Nezikin counted in Rebbi Chiya's Beraisa. The Gemara asks, about Rebbi Chiya's Beraisa as well, what is it that he omitted, and it explains that he also chose to limit his list by omitting two items from it.
</p><p>
The Rashba explains that the way that the Gemara knew that Rebbi Chiya omitted something from his list is because he did not say the word 'Hen.'
</p><p>
The Rashba, however, leaves unanswered the question of why the Mishnah in Kerisus does not say 'Hen.' 
</p><p>
The <b>GILYON</b> cited by the Shitah Mekubetzes points out that the same answer might be applied to the Mishnah in Kerisus, according to <b>TOSFOS</b> in Kerisus (2b, DH la'Afukei). Tosfos there explains that the Mishnah in Kerisus chooses to limit its list and not enumerate all of the cases of Mechusrei Kaparah just as the Mishnah here limits its list.
</p><p>
(b) The <b>MAHARI KOHEN TZEDEK</b> cited by the Shitah Mekubetzes answers that the word 'Hen' is written to emphasize the differences between the items listed. He apparently means that the word 'Hen' is used when one might think that some of the items in the list are identical and should not be counted independently. The Mishnah adds the word 'Hen' to emphasize that this indeed is the number of different items that must be enumerated, and not less.
</p><p>
In contrast, in the Mishnah here (and in the Mishnah in Kerisus) it is obvious that the different Avos (and, in Kerisus, the Mechusrei Kaparah) should be listed separately because of their distinct qualities. The Mishnah writes 'four' to exclude <i>more</i> than four and not less than four, and therefore it does not need to use the word 'Hen.'
</p><p>
This is also the answer of the <b>TOSFOS RID</b> cited by the Shitah Mekubetzes, and the answer of the <b>NACHALAS DAVID</b>. 
</p><p>
(Although the Mishnah continues and says 'Lo Harei...,' its intention is not to point out that the Avos are different, but rather that each Av has a <i>Kula</i> and therefore it cannot be derived from a combination of the others.)
</p><p>
A similar concept is expressed by <b>TOSFOS</b> in Kerisus (2b, DH l'Me'utei), who says that when the Mishnah emphasizes the differences between the items in its list, it is not necessarily excluding other items from the list. That is, some Mishnayos teach the <i>minimum</i> number of items, and other Mishnayos teach the <i>maximum</i> number of items.
</p><p>
(c) Perhaps the Mishnah uses the word 'Hen' when the list includes items that are not discussed explicitly in the Torah. 'Hen' means that besides the ones in the list that are already known, there is a another, specific number of items that should be included in this list. For example, the Mishnah in Shevuos (49a) says, 'Arba Shomrim Hen,' because one of them, the Socher, is not mentioned anywhere in the Torah explicitly (see Rashi 5a, DH Tachas Nesinah). The Mishnah in Rosh Hashanah (2a) says, 'Arba Roshei Shanim Hen,' because those days are not described by the Torah as Roshei Shanim. The items -- the Avos Nezikin-- in the list of the Mishnah here, and in the lists of the Beraisos of Rebbi Oshiya and Rebbi Chiya, are written explicitly in the Torah, as are the Mechusrei Kaparah listed in Kerisus. They are mentioned in the Mishnah only to teach that they pay from 'Meitav.' (Although Rebbi Oshiya and Rebbi Chiya mention 'Socher,' they do not mean to teach anything new by that, since Socher is already listed in the Mishnah of the four Shomrim.)
</p><p>
(This answer is similar to the previous answer.)
</p><p>


<font><b>2) DERIVING THE OBLIGATION TO PAY FOR DAMAGES THROUGH A 'KAL VA'CHOMER'</b></font><b>
<br>QUESTIONS:</b> The Mishnah teaches that had the Torah not mentioned each one of the Avos Nezikin, the ones not mentioned could not have been derived from those that are mentioned through a Binyan Av. (See Chart to 5b. The Rishonim point out that according to the Gemara's conclusion on 5b, this part of the Mishnah was written only 'l'Hagdil Torah ul'Ha'adirah'; see also Tosfos here, DH v'Lo.) It seems clear from the Mishnah and Gemara that had one of the Avos been more lenient than all of the others, the rest <i>could</i> have been derived from it through a Kal va'Chomer or Binyan Av. <b>TOSFOS</b> (DH v'Lo) explains that although the normal rule is 'Ein Onshin Min ha'Din,' a punishment cannot be derived through an exegetical process such as a Kal va'Chomer or Binyan Av (rather, it must be written in the Torah explicitly or learned from a Hekesh), nevertheless a punishment may be given to the Mazik based on a Kal va'Chomer and he may be forced him to pay for the damage he caused, because <i>monetary</i> punishment <i>may</i> be learned from a Kal va'Chomer. It is only <i>physical</i> punishment that may not be learned from a Kal va'Chomer. This is clear from many Gemaras and Mishnayos that derive a monetary punishment through a Kal va'Chomer (see, for example, the Mishnah later on 24b; see also <b>RASHI</b> to Chagigah 11b, DH l'Vito). 
</p><p>
There are a number of questions on this principle.
</p><p>
(a) This rule seems to contradict the Mechilta (cited by Tosfos) which teaches that the reason why the Torah writes that a person who 'opens a ditch or who digs a ditch' (Shemos 21:33, 'v'Chi Yiftach... O Ki Yichreh') is liable is to teach that had it not written explicitly that the digger is liable, he would have been exempt because of 'Ein Onshin Min ha'Din' (<b>TOSFOS</b> DH v'Lo)!
</p><p>
(b) The basis (see <b>HALICHOS OLAM</b> 4:12) for the principle of 'Ein Onshin Min ha'Din' is that a Kal va'Chomer is based only on logic, and thus it can be refuted by a logical disproof (Pircha). Since a logical disproof can counter the Kal va'Chomer, we can never be absolutely certain that the Kal va'Chomer is correct; perhaps someone later will come and find a logical disproof to the Kal va'Chomer. Therefore, we cannot rely on a Kal va'Chomer to administer a physical punishment but only to derive a prohibition against performing a certain act l'Chatchilah. 
</p><p>
According to this logic, a Kol v'Chomer also should not be able to teach a monetary punishment. As long as there is a possibility that the defendant is not liable , he should be exempt from paying based on the claim of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' (<b>SEFER KOVETZ <b><b>AL</b></b> HA'RAMBAM</b>, Hilchos Avodas Kochavim 6:4)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> implies that the Mechilta perhaps disagrees with the Mishnah.
</p><p>
Other Rishonim find this suggestion difficult to accept, since so many Mishnayos seem to take it for granted that a monetary punishment may be administered based on a Kal va'Chomer. 
</p><p>
The <b>RASHBA</b> explains that the Mechilta means to say that with regard to Bor, a monetary punishment could not have been derived through a Kal va'Chomer had the verse not stated the punishment. The reason Bor is unique is that the law that a person is liable to pay for the damages caused by his Bor is a Chidush, since the damaged item (such as an ox) brought itself into the Bor, and the Bor did not approach the item and damage it. Also, the Torah teaches that although the Mazik does not own the Bor (for example, the Bor is in Reshus ha'Rabim), he still must pay as though it was his property that did the damage (see later, 29b). Since the law of Bor is a Chidush, one would have thought that a person can be obligated only for what the Torah itself obligates him and no additional obligation may be derived through a Kal va'Chomer; a Chidush of the Torah might not follow the dictates of human logic. (See Moed Katan 7a, Nazir 37a, Chulin 34a.) 
</p><p>
The Rashba's point is not clear. It still seems that the Gemara does not agree with the Mechilta, since the Gemara (5b) proposes that the other Nezikin be derived from Bor through a Kal va'Chomer or Binyan Av. Moreover, if the rule of the Rashba is correct, why does the Mishnah and Gemara in Makos (5b) ask that Edim Zomemim should be liable for killing a person because of a Kal va'Chomer (the Gemara cites verses to prove that 'Ein Onshin Min ha'Din')? Halachos of Edim Zomemim should be not able to be learned from a Kal va'Chomer because the law of Edim Zomemim is a Chidush (Bava Kama 72a)!
</p><p>
Perhaps the Rashba means that the Mechilta learns from this verse that Bor <i>would</i> have been viewed as a Chidush and no Halachos would have been learned from Bor through a Kal va'Chomer had the Torah not said 'Ki Yichreh.' Now, however, that the Torah says 'Ki Yichreh,' it teaches that Bor is to be viewed as the same as other Avos Nezikin (and other Avos Nezikin may be derived from it). 
</p><p>
Why, though, does the Mechilta teach what <i>would</i> have been the Halachah in a case of Bor had it been a Chidush, if it is not a Chidush?
</p><p>
The answer is that the Mechilta wants to teach the way the logic of Kal va'Chomer is applied in other cases where a Halachah is indeed a Chidush. Perhaps such a case would be a case of Edim Zomemim who testified about a monetary obligation. The Mechilta would rule that in such a case no punishment may be derived through a Kal va'Chomer, unlike the view of Tosfos (4b, DH v'Edim) whom the Rashba himself cites (5a).
</p><p>
With regard to the Gemara in Makos which says that the rule of 'Ein Onshin Min ha'Din' dictates that no punishment may be administered, based on a Kal va'Chomer, to Edim Zomemim who caused a person to be killed, the <b>RITVA</b> there writes that this is not the real reason why no punishment is administered to Edim Zomemim who cause someone to be killed. Rather, the real reason is that Edim Zomemim is a Chidush, and a Kal va'Chomer cannot be derived from a Chidush. The Gemara mentions the rule of 'Ein Onshin Min ha'Din' only because its discussion there revolves around Edim Zomemim who caused a person to be killed, in which case it does not need to point out that the law of Edim Zomemim is a Chidush; even if the law of Edim Zomemim would not be a Chidush, no punishment could be given to them because of the rule of 'Ein Onshin Min ha'Din.' However, even if it is not a matter of corporal punishment but of a monetary obligation, the obligation could not be derived from a Kal va'Chomer because Edim Zomemim is a Chidush.
</p><p>
(b) The <b>SEFER KERISUS</b> (1:17) suggests that the words 'Ein Onshin Min ha'Din' as used by the Mechilta mean something completely different from what they normally mean. (This is a common occurrence in the Gemara; see <b>RASHBA</b> to Yevamos 108a, and Nidah 21b.)
</p><p>
The Mechilta means as follows. The Gemara (50a) asks the question of the Mechilta: why does the Torah need to teach that one must pay for damages if he digs a Bor, if the Torah has already taught that one is obligated to pay even if he merely opens a pre-existing Bor? Rebbi Akiva answers that had the Torah taught only that one is obligated for <i>opening</i> a Bor, one might have thought that if one <i>digs</i> a Bor he is obligated to pay for damages even if he covers it with a strong covering. One might have thought that one is exempt from damages caused by his Bor only when he fills up the Bor entirely. The Gemara later (55b) cites a Beraisa that teaches that based on this point, Bor is one of the four things for which the Torah does not require a strong Shemirah, and it lessened the degree of the Shemirah required (one is not required to fill in the ditch but merely to cover it).
</p><p>
This is what the Mechilta means to say. One would have thought that, logically, one who digs a ditch must fill it in and it is not enough to cover it. The Torah says 'Ki Yichreh' to teach that 'Ein Onshin Min ha'Din' -- a person is not punished <i>in the way that is befitting</i>, according to what he deserves; rather, it suffices for him to cover the pit without filling it in.
</p><p>
(c) The <b>MAHARI KOHEN TZEDEK</b> cited by the Shitah Mekubetzes explains that the Mechilta means to say that a punishment 'b'Yedei Shamayim' is not derived through a Kal va'Chomer.
</p><p>
Anyone who harms another person due to negligence, through one of the Avos Nezikin, may also be liable b'Dinei Shamayim (see Rashi to Shemos 21:29). This is why the Torah needs to state explicitly that a person is liable for digging a Bor. Without the verse, however, one would have known the <i>monetary</i> obligation (because of the Kal va'Chomer). (See also <b>TOSFOS</b> to Chulin 115b, DH Mah, who proves that the punishment of Kares cannot be derived from a Kal va'Chomer.)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> The Tum'os are unlike the Avos. An Av ha'Tum'ah 
               is Metamei people and Kelim. A Toldah does not.
<br>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> Regarding Nezikin, some Toldos are 
          like the Avos, and others are not.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>KEREN AND ITS TOLDOS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Three Avos pertain to an ox: Keren (the 
          horn, i.e. goring), Shen (eating) and Regel (trampling).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source for Keren?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'If an ox will gore' - goring is with 
          the horns.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We learn from 'he made for him... horns... 'with 
               these you will gore Aram'' and '... his horns, with 
               them he will gore nations'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why is a second verse needed?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> If you will say that mid'Oraisa laws 
               are not learned from Nevi'im, we can learn from a 
               verse of the Torah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection:</font></b> We are not learning a law. We just 
               clarify that goring is with a Keren!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2:</font></b> Rather, one might have thought that 
               the Torah distinguishes between a Mu'ad (an animal 
               established to gore) and a Tam regarding detached 
               horns, but if the horns are attached, it is always 
               considered Mu'ad;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  'His horns...' teaches that this is not so. (It 
                    calls goring with attached horns 'Negichah', 
                    the same word used to discuss a Tam or Mu'ad 
                    that gored.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What are the Toldos of Keren?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> They are pushing, biting, crouching and 
          kicking.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why is only goring an Av?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is because it says 'if (an ox) 
               will gore...'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rejection:</font></b> It also says 'if will push'!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The latter verse also refers to goring.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> The Torah first says 'Yigach (gore)' 
               and later 'Yigof' to teach that both are the same.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Why does it say 'Yigach' regarding goring 
          people and 'Yigof' regarding goring animals?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Man has Mazal (understanding to guard himself; 
          alternatively, an angel that advocates for him), so it 
          says 'Yigach' (he would not be gored unless the animal 
          intended). Animals lack Mazal, so it says 'Yigof' (it 
          could be gored without intent).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This teaches that an animal Mu'ad to gore people 
               is (also) Mu'ad to gore animals, but not vice-versa.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Why is biting a Toldah of Keren? It is a 
          Toldah of Shen (eating)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Shen is when the animal has Hana'ah 
          (benefit or pleasure). The animal gets no Hana'ah from 
          biting.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Why are crouching and kicking Toldos of 
          Keren? They are Toldos of Regel (trampling)!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Regel is common damage. Crouching and 
          kicking are not common.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>TOLDOS UNLIKE THE AV</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Papa said that some Toldos are unlike the 
          Avos. To which did he refer?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He cannot refer to these Toldos of Keren. Keren 
               has intent to damage, it is your property, and you 
               are responsible to watch it. The same applies to 
               these Toldos!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, the Toldos of Keren are like Keren. 
          Toldos of Shen and Regel are unlike those Avos.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'He will send' refers to Regel - 'sending 
          the Regel of oxen and donkeys.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'And it will consume' refers to Shen - 'like the 
               Galal (tooth) will consume'
<br>

sjt:
<p>
<font><b>3) THE 'TOLDOS' OF 'NEZIKIN'</b></font><b>
<br>OPINIONS:</b> The Mishnah (2a) states that there are four '<i>Avos</i> Nezikin,' implying that there are also Nezikin which are 'Toldos.' The Gemara shows that the Toldos of Melachos of Shabbos <i>are</i> 'k'Yotzei ba'Hem'; the Toldos are similar to the Avos Melachos. It also shows that the Toldos of Tum'ah are <i>not</i> 'k'Yotzei ba'Hem'; the Toldos do not have the same Halachos as the Avos ha'Tum'ah. The Gemara inquires whether the Toldos of Nezikin are similar to the Avos, 'k'Yotzei ba'Hem,' or not.
</p><p>
If the Toldah is like the Av, then the Halachos of the Toldah are learned from the Av. However, if the Toldah is not like the Av, then what determines its Halachos?
</p><p>
(a) <b>RASHI</b> (DH Hacha Mai; DH Mai Shena Keren; and 3a, DH Mai Shena Regel) explains that the Gemara's question is whether one is obligated to pay for damage when he inflicts it through a Toldah of one of the Nezikin, or whether one is completely exempt from compensating for the damage caused by a Toldah. If Toldos of Nezikin are similar to the Toldos of Tum'ah, then just as the Toldos of Tum'ah are not strong enough to be Metamei the same way as an Av, the Toldos of Nezikin are not strong enough to create an obligation for a person to pay.
</p><p>
If one is not obligated to pay for a Toldah of Nezikin, then in what sense is it a 'Toldah'? It is not considered to be a Nezek altogether if one is not obligated to pay for it!
</p><p>
It seems that Rashi means that it is considered a Toldah insofar that one is obligated to <i>prevent</i> such damage from occurring. However, if one does not fulfill his obligation to prevent such damage from occurring and transgresses and causes damage to another person's property, he does not have to pay for it.
</p><p>
It is clear from Rashi that whenever a person damages someone else, or someone else's property, he also transgresses a prohibition, even if he fulfills his monetary obligation to compensate for the damage (or even if he is exempt from monetary obligation). What is the source for this prohibition?
</p><p>
1. <b>RASHI</b> in Gitin (21b) writes that the prohibition to cause damage may be derived from the law that the owner of an Eved is obligated to free his Eved if he damages any of the Eved's Roshei Evarim. This obligation implies that the owner is <i>prohibited</i> from damaging the Eved in the first place. Rashi seems to understands that in any case in which the Torah teaches a monetary obligation, the Torah also prohibits doing the act which causes such an obligation. (The <b>BIRKAS SHMUEL</b> cites <b>RAV CHAIM SOLOVECHIK</b> who suggests that since the Torah says 'v'Lo Yishmerenu Be'alav' (Shemos 21:36), teaching that the owner of the ox must pay because he did not guard the ox properly, one may infer that the Torah expects a person to guard his ox properly.)
</p><p>
The <b>KEHILOS YAKOV</b> questions this logic. In the case of Regel, one's animal is simply walking in its normal manner through the marketplace when it causes damage (as the Gemara asks on 19b, 'is the owner of the ox obligated to hold on to its tail [so that it does not wag it while walking]?'). One certainly is permitted to allow his ox to walk in its normal manner, and yet the Torah obligates him to pay if his ox does damage while walking.
</p><p>
Others point out that this is exactly why one is exempt from damages caused by Shen and Regel in Reshus ha'Rabim (see <b>ROSH</b> 1:1). When a person walks his ox through a neighbor's field, he indeed must be careful that it not cause damage even in the normal manner of walking. 
</p><p>
2. <b>RABEINU YONAH</b> (beginning of Avos) writes that the prohibition to damage another person's property is derived from the Isur of 'Lo Sigzol.' This is also the implication of the <b>TUR</b> (beginning of CM 378).
</p><p>
It is not clear how the prohibition to cause damage is learned from the prohibition against stealing, since that prohibition is transgressed only when the thief does an act of <i>Kinyan</i> on the other person's property (see Bava Metzia 26b). Perhaps he means that it is learned from a 'Mah ha'Tzad' from Lo Sigzol and from the prohibitions of Ona'ah and Rivis (see 61a).
</p><p>
Similarly, the <b>RASHASH</b> in Kesuvos (18a) and the <b>KEHILOS YAKOV</b> (Bava Kama #1) suggest that the prohibition to cause damage is learned from the Mitzvah of Hashavas Aveidah. If one is obligated to return another's property, then one certainly is not allowed to harm another's property.
</p><p>
3. The <b>YAD RAMAH</b> (Bava Basra 26a, #107) writes that the prohibition to damage another's property is learned from 'Lifnei Iver Lo Siten Michshol' (Vayikra 19:14) and from 'v'Ahavta l'Re'acha Kamocha' (Vayikra 19:18), Mitzvos that teach moral obligations.
</p><p>
(b) The <b>RIF</b> explains that there are some Avos Nezikin for which one must pay Chatzi Nezek 'Min ha'Aliyah' (Regel, Shen, and Keren Mu'edes), and there are some Avos for which one must pay Chatzi Nezek 'm'Gufo' (Keren Tamah). Therefore, the Gemara is asking whether the Toldos of the Avos have the same Halachah as the Av, or whether they have the leniencies found in other Avos.
</p><p>
As the <b>BRISKER RAV</b> (beginning of Hilchos Nizkei Mamon) explains, the Rif was not satisfied with Rashi's explanation, because if a Toldah is completely exempt from liability, then it should not be called a Toldah altogether. Therefore, he preferred to explain that the Gemara's question is whether the Toldah has certain leniencies that the Av does not have.
</p><p>
Why did the Rif need to point out that the Av of Keren Tamah pays Chatzi Nezek? Even if there would be no Av that pays Chatzi Nezek, one still should question whether the Toldos are dealt with more leniently than the Avos and one only needs to pay Chatzi Nezek instead of Nezek Shalem for them?
</p><p>
The <b>ROSH</b> answers that had there been no Av that has these leniencies, one would not have questioned whether the Toldah has original leniencies of its own. Once the possibility that a Mazik must pay in such a manner is found, one may consider the possibility that a Toldah pays in such a manner. (The <b>NACHALAS DAVID</b> offers a similar explanation, although he does not understand this to be the intent of the Rosh.) 
</p><p>
(c) The <b>BRISKER RAV</b> interprets the Rif's words differently. He points out from a number of Gemaras and Rishonim that there are times when it seems that a Mazik which is learned from a Binyan Av <i>could</i> be more severe than the Avos from which it was derived. To explain this, he suggests (as the Gemara concludes on 5b) that the Torah did not write the various Avos in order to teach their basic obligation since it is possible to derive the basic obligation for all of them through a Meh Matzinu from Keren and Bor. Rather, the Torah writes the Avos in order to teach the specific leniencies that apply to each one (for example, that one pays Chatzi Nezek for Keren when it is a Tam, that one is exempt for Shen and Regel in Reshus ha'Rabim, that there is no liability for a Bor that damages Adam or Kelim, and that there is no liability for an Esh that damages items that are hidden, 'Tamun'). 
</p><p>
The Brisker Rav suggests that according to this understanding, the specific exemptions and leniencies should apply only to a Mazik that bears the 'Shem Av' of the Av for which the leniency was originally given. Therefore, if a Mazik is derived through a Meh Matzinu between Keren and Bor, since it is does not have the title, or 'Shem Av,' of Keren nor the title of Bor, its laws will be more strict than the laws of both Keren and Bor and it will be liable in all situations.
</p><p>
This, he suggests, is the intention of the Rif. According to the Rif, the Gemara is asking whether the Toldos have the 'Shem Av' of their respective Av, and therefore a Toldah of Keren, for example, pays Chatzi Nezek, or whether they do not retain the 'Shem Av' and therefore a Toldah of Keren pays Nezek Shalem.
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SHEN AND REGEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Why is a verse needed to show that 'he will 
          send' is Regel? What else could it be? We already have 
          verses for Keren and Shen!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The verse must teach that 'he will send' is 
          Regel. One might have thought that there are two verses 
          for Shen - one for total consumption, and one for partial 
          consumption.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Since we use 'he will send' for Regel, what 
          is the source that Shen is liable for partial 
          consumption?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from Regel, in which we do not 
          distinguish whether or not the damaged object is totally 
          destroyed.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'And it will consume' refers to Shen - 'like 
          the Galal will consume'.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why is a verse needed to show that 'and it 
          will consume' is Shen? What else could it be? We already 
          have verses for Keren and Regel!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The verse must teach that 'and it will consume' 
          is Shen. One might have thought that there are two verses 
          for Regel, one when the animal goes itself, and one for 
          when it is sent.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Now that we use 'and it will consume' for 
          Shen, what is the source that one is liable for Regel 
          when the animal goes itself?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from Shen, in which we do not 
          distinguish whether or not the animal goes itself.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> It should suffice for the Torah to say 'he 
          will send', for this connotes both Regel ('sending the 
          Regel') and Shen ('the Shen of animals I will send')!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> If there were only this verse, one might have 
          thought that it only teaches one of them, i.e. Regel, for 
          such damage is common, or Shen, for the damager gets 
          Hana'ah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Both are equal Chidushim. We could not learn 
          and exclude the other, so we would learn both!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> If there were only one verse, we would obligate 
          the owner only if he sent the animal. The second verse 
          teaches even when the animal goes itself.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IS THERE A TOLDAH UNLIKE THE AV?</font></b>

<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What are Toldos of Shen?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The animal scratched itself on the wall for 
          pleasure, or it dirtied fruit (by rolling in it or 
          excreting on it) for pleasure.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (to Answer #1 (4:b, Daf 2b)):</font></b> Regarding these 
          Toldos, the animal gets Hana'ah, it is your money and you 
          are responsible to guard it. They are just like Shen! (We 
          cannot say that Rav Papa referred to them!)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Indeed, the Toldos of Shen are like Shen. 
          Toldos of Regel are unlike Regel.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What are Toldos of Regel?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> While it was walking, the animal damaged with 
          its body, hair, saddle-bag, bridle in its mouth, or bell 
          on its neck.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection (to Answer #2):</font></b> Regarding these Toldos, the 
          damage is common, the animal is your money and you are 
          responsible to guard it. This is just like Regel!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3:</font></b> Indeed, the Toldos of Regel are like Regel. 
          Toldos of pit are unlike a pit.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What are the Toldos of a pit?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> A 10 Tefachim (deep) pit is the Av. A 
               nine Tefachim pit is the Toldah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> The Torah never specified the size of a 
               pit!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> 'The dead animal will be (to the owner of 
               the pit)' - Chachamim know that a 10 Tefachim pit 
               kills, a nine Tefachim pit only damages.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection:</font></b> Still, a 10 Tefachim pit is an Av for 
               death, a nine Tefachim pit is an Av for damage!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The Toldos of a pit (that are unlike a pit) are 
          a stone, knife or load left in a Reshus ha'Rabim (public 
          thoroughfare) that damaged.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the owner was Mafkir them (made them 
               ownerless), Rav and Shmuel agree that they are like 
               a pit;
<br>
<br>

sjt:
<font><b>1) THE PROOF THAT 'TZEROROS' IS A 'TOLDAH' OF 'REGEL'</b></font><b>
<br>QUESTIONS:</b> Rav Papa says that there are Toldos which are 'k'Yotzei ba'Hem' (they are like their respective Av), and there are some which are not 'k'Yotzei ba'Hem.' The Gemara analyzes the Toldos to find the one that is not 'k'Yotzei ba'Hem.' The Gemara explains that the Toldah which is not like its Av is Tzeroros, for which one must pay Chatzi Nezek, even though its Av is Regel (which pays Nezek Shalem). The Gemara asks that if it pays Chatzi Nezek, then why is it considered a Toldah of Regel? It should be considered a Toldah of Keren, or it should be in its own independent category!
</p><p>
The Gemara answers that Tzeroros is a Toldah of Regel because one must pay 'Min ha'Aliyah.' Even though Rava expressed doubt about this Halachah of 'Min ha'Aliyah' for Tzeroros, Rav Papa maintains that one must pay 'Min ha'Aliyah' and that is why he said that Tzeroros is a Toldah of Regel.
</p><p>
The Gemara continues and says that according to Rava, who is in doubt whether or not Tzeroros pays 'Min ha'Aliyah,' Tzeroros is nevertheless a Toldah of Regel because of the exemption from damages caused in Reshus ha'Rabim.
</p><p>
<b>RASHI</b> (DH b'Chatzi Nezek) writes that there is a Halachah l'Moshe mi'Sinai that the payment of damage caused by Tzeroros is a payment of Mamon (monetary indemnification) and not a Kenas (penalty). He adds that if Tzeroros is not a Toldah of Keren, it is considered a Toldah of Regel, because it is the foot which causes the Tzeroros to inflict damage.
</p><p>
There are a number of difficulties with the Gemara, especially in light of Rashi's comments.
</p><p>
1. Why does the Gemara not answer that Tzeroros is considered a Toldah of Regel because it is Mamon and not Kenas (because of the Halachah l'Moshe mi'Sinai), as Rashi explains? In contrast, a Keren Tamah that pays Chatzi Nezek is a Kenas! (<b>GILYON</b> in Shitah Mekubetzes; see <b>MAHARSHAL</b>.)
</p><p>
3. Why does the Gemara not answer that Tzeroros is a Toldah of Regel because the damage is caused by the foot? (<b>HAGAHOS CHAVOS YA'IR</b> on the Rif)
</p><p>
2. Rashi implies that had there been no Halachah l'Moshe mi'Sinai, Chatzi Nezek of Tzeroros would have been a Kenas just like the Chatzi Nezek of Keren Tamah. This is true only according to the opinion that Chatzi Nezek of a Keren Tamah is a Kenas (15a). Rav Papa himself (15a), however, maintains that Chatzi Nezek of all forms of Tam is <i>Mamon</i> and not Kenas! (<b>GILYON</b> in Shitah Mekubetzes, <b>PNEI YEHOSHUA</b>)
</p><p>
4. Why does the Gemara insist that Rav Papa calls Tzeroros a Toldah of Regel because one must pay for Tzeroros 'Min ha'Aliyah'? Perhaps he, too, agrees with Rava that it is a Toldah of Regel because one is exempt from the damage of Tzeroros in Reshus ha'Rabim! (<b>RASHBA</b>, <b>PNEI YEHOSHUA</b>)
</p><p>
5. Why would one have considered Tzeroros to be a type of Keren had the Halachah l'Moshe mi'Sinai not taught that it is Mamon? The Gemara later (18a) clearly implies that Tzeroros is a form of damage that comes about through the normal conduct of an animal ('Orchei'), like Regel. It should be Mamon even without the Halachah l'Moshe mi'Sinai! (<b>TOSFOS SHANTZ</b> in Shitah Mekubetzes)
</p><p>
<b>ANSWERS:</b> The answer to these questions involves a basic query in understanding exactly what the Halachah l'Moshe mi'Sinai of Tzeroros teaches. The first possibility is that Tzeroros is similar fundamentally to <i>Keren</i>, and the Halachah l'Moshe mi'Sinai teaches that its payment is nevertheless Mamon, like <i>Regel</i>, and not Kenas. The second possibility is that Tzeroros is similar fundamentally to <i>Regel</i>, and the Halachah l'Moshe mi'Sinai teaches that it pays Chatzi Nezek like <i>Keren</i>. What exactly does the Halachah l'Moshe mi'Sinai teach? 
</p><p>
(a) <b>RASHI</b> explains that the Halachah l'Moshe mi'Sinai teaches that the payment of Tzeroros is not Kenas but Mamon. It is clear from Rashi that logically one would have thought that Tzeroros is a Toldah of Keren because it is not something that happens through the normal conduct of an animal. It seems that Rashi had the Girsa cited by the Tosfos Shantz and others, in which the Gemara includes the words, 'Hilchesa Gemiri Lah <i>d'Mamona Hu</i>.' 
</p><p>
Why, then, does the Gemara ask what makes Tzeroros a Toldah of Regel? The Gemara just stated that it is Mamon like Regel and it is not Kenas (as asked in the first question above)!
</p><p>
The second question answers this question. Rav Papa himself does not maintain that every payment of Keren is Kenas. Rather, he maintains that every payment of Keren is Mamon. Hence, this quality of being Mamon does not make Tzeroros more similar to Regel than to Keren, since the payments of both Regel and Keren are Mamon. Therefore, according to Rav Papa, the Halachah l'Moshe mi'Sinai must be teaching that Tzeroros is similar to Regel with regard to a different Halachah. The Gemara concludes that it is similar to Regel with regard to paying 'Min ha'Aliyah.' When the Gemara said that the Halachah l'Moshe mi'Sinai teaches that it is Mamon, it meant that according to those who maintain that Keren is normally Kenas, this is what the Halachah l'Moshe mi'Sinai teaches (i.e. that Tzeroros is Mamon and not Kenas). This answers the first and second questions.
</p><p>
Regarding the third question -- why does the Gemara not say that Tzeroros is a Toldah of Regel because it is done by the foot -- the answer is that there is another reason to compare Tzeroros to <i>Keren</i>. Tzeroros is similar to Keren in that it is not 'Orchei' to cause damage in this manner, like Keren. Therefore, Tzeroros has elements of both Regel and Keren. The Gemara therefore must search for another quality that makes it similar to Regel so that it will be more similar to Regel than to Keren. (See <b>MAHARAM</b>, and <b>GILYON</b> in Shitah Mekubetzes.)
</p><p>
This answers the fourth question as well, why Rav Papa does not agree with Rava who says that the reason Tzeroros is a Toldah of Regel is that one is exempt for it in Reshus ha'Rabim. Although Tzeroros is similar to Regel with regard to its exemption in Reshus ha'Rabim, it is also similar to Keren in another way -- it pays only Chatzi Nezek and not Nezek Shalem. Since it is similar to Regel in two ways (the damage is caused by the foot, and it is exempt in Reshus ha'Rabim), and it is similar to Keren in two ways (it is not 'Orchei,' and it pays only Chatzi Nezek), there is no reason to relate it to Regel more than to Keren. Rav Papa, therefore, must maintain that Tzeroros pays 'Min ha'Aliyah,' and thus it is more similar to Regel than to Keren. Rava, on the other hand, maintains that Chatzi Nezek of Keren is normally a Kenas and not Mamon, and yet the Halachah l'Moshe mi'Sinai of Tzeroros teaches that its payment of Chatzi Nezek is <i>Mamon</i>, as mentioned above. Therefore, even if Tzeroros does not pay 'Min ha'Aliyah,' it is more similar to Regel than to Keren. (A similar explanation is offered by the <b>TALMIDEI <b><b>RI</b></b></b> in the Shitah Mekubetzes.)
</p><p>
Regarding the fifth question, how does Rashi understand the Gemara later (18a), it seems that Rashi learns that the Sugya here disagrees with the Sugya there over this point. The Gemara here maintains that Tzeroros is not considered 'Orchei,' and therefore it learns that the Halachah l'Moshe mi'Sinai teaches that Tzeroros is considered Mamon and not Kenas even though it is not 'Orchei,' while the Gemara later maintains that Tzeroros <i>is</i> 'Orchei.' (According to the Gemara on 18a, it is obvious why Tzeroros is called a Toldah of Regel and not a Toldah of Keren.) 
</p><p>
(b) <b>TOSFOS</b> (DH l'Fotro), the <b>ROSH</b>, and other Rishonim explain that Tzeroros is damage done while the animal is behaving in its normal manner, 'Orchei,' and therefore logically it should be a Toldah of Regel. The Halachah l'Moshe mi'Sinai does not teach that it is Mamon but rather that it pays Chatzi Nezek and not Nezek Shalem. (See also <b>TOSFOS SHANTZ</b> in the Shitah Mekubetzes.)
</p><p>
<b>RASHI</b> himself takes this approach to the Halachah l'Moshe mi'Sinai of Tzeroros in Shevuos (33a) and Kesuvos (41b). As explained above, Rashi maintains that the Sugyos disagree with each other with regard to what the Halachah l'Moshe mi'Sinai teaches. 
</p><p>
This explanation conforms with the statement of the Gemara later (18a), and it thus answers four of the five questions. The Gemara does not contrast Tzeroros with Keren by calling it 'Mamon,' because Chatzi Nezek of Keren is also Mamon according to Rav Papa. The reason why the Gemara does not say that Tzeroros a Toldah of Regel due to the fact that it is 'Orchei' is that this similarity is countered by the fact that it pays Chatzi Nezek (like Keren) and not Nezek Shalem.
</p><p>
The only question that remains is why the Gemara does not suggest that Rav Papa calls Tzeroros a Toldah of Regel for the reason that Rava gives -- that it is exempt in Reshus ha'Rabim. The <b>RASHBA</b> answers that the Gemara had a tradition that for damage caused by Tzeroros, one pays 'Min ha'Aliyah' and therefore it attributes this opinion to Rav Papa, since there is no reason to assume that he questions, or disagrees with, this Halachah (in contrast to Rava).
</p><p>
The <b>MAHARI KOHEN TZEDEK</b> (cited by the Shitah Mekubetzes) explains that the Gemara understands Rav Papa's statement to mean not only that some Toldos are similar to their Avos and some are dissimilar to their Avos, but that the Toldah of Tzeroros itself is in some way similar to its Av and in some way dissimilar. Since Rav Papa does not mention that he was in doubt about some of the Halachos of Tzeroros, one may infer that the only way in which Tzeroros is dissimilar to its Av is that it pays Chatzi Nezek. With regard to paying Min ha'Aliyah and all other Halachos, Tzeroros is similar to Regel since the Halachah l'Moshe mi'Sinai deals only with paying Chatzi Nezek and not with any of the other Halachos.
</p><p>


<font><b>2) 'TZEROROS' -- A 'TOLDAH' OF 'REGEL'</b></font><b>
<br>QUESTION:</b> The Gemara explains that according to Rava, the reason why Tzeroros is considered a Toldah is not because one must pay 'Min ha'Aliyah,' because Rava is in doubt whether one pays 'Min ha'Aliyah' for Tzeroros. It must be that there is a different reason why Tzeroros is considered a Toldah of Regel.
</p><p>
How does the Gemara know, however, that Rava agrees that Tzeroros is a Toldah of Regel in the first place? It was only Rav Papa who said that Tzeroros is a Toldah of Regel and is not similar to its Av. Perhaps Rava argues and maintains that Tzeroros is <i>not</i> a Toldah of Regel! (<b>RASHBA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> answers that the Gemara knows that all of the Amora'im had a tradition that Tzeroros is a Toldah of Regel.
</p><p>
(b) The <b>TOSFOS SHANTZ</b> adds that this point may be inferred from the Mishnah later (17a) which discusses Regel and mentions the Halachah of Tzeroros in the midst of its discussion. 
</p><p>
(c) The <b>GILYON</b> (cited by the Shitah Mekubetzes) adds that Rava himself (on 18b) seems to maintain that Tzeroros is a Toldah of Regel.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he was not Mafkir them, according to Shmuel, 
               they are like a pit. According to Rav, they are like 
               an ox;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of objection:</font></b> Regarding these Toldos of 
               a pit (according to Rav, this is only when he was 
               Mafkir them), from the beginning they were prone to 
               damage, they were your money and you were 
               responsible to guard them. They are just like a pit!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #4:</font></b> Indeed, the Toldos of a pit are like a pit. 
          Toldos of Mav'eh (this will be explained) are unlike 
          Mav'eh.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Which Toldos of Mav'eh are unlike Mav'eh?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Shmuel, Mav'eh is Shen. We proved 
               that the Toldos of Shen are like Shen!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Rav, Mav'eh is man. What are Avos of 
               man and what are Toldos?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Av is when he is awake, and the 
               Toldah is when he is asleep.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection (Mishnah):</font></b> Man is always Mu'ad (liable 
               to pay full damage), whether awake or asleep!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, the Toldos are his spit and phlegm.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Objection:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Before they land, this is like his action (it is 
               just like a man who damages)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> After they land, Rav and Shmuel agree that they 
               are like a pit (for surely, he is Mafkir them)!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #5:</font></b> Indeed, the Toldos of Mav'eh are like 
          Mav'eh. Toldos of fire are unlike fire.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> What Toldos of fire are unlike fire?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> They are his stone, knife or load 
               that he left on the roof. They fell in a common 
               wind, and damaged.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Objection:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they damaged as they were falling, this is 
               exactly like fire!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Another power participates (the wind), they are 
               your money and you are responsible to guard them. 
               This is just like fire!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Reiteration of Answer #2:</font></b> Indeed, the Toldos of fire 
          are like fire. A Toldah of Regel is unlike Regel.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PEBBLES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> We proved that Toldos of Regel are as Regel!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> A tradition from Moshe from Sinai teaches that 
          one pays half-damage for damage caused by pebbles kicked 
          up. This is a Toldah of Regel unlike Regel.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this called a Toldah of Regel? (It is 
          independent. It pays half-damage, unlike Regel!) 
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The obligation to pay is not limited (by the 
          value of the damager, like Regel).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Rava never resolved whether or not that is 
          true!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rava):</font></b> Is liability to pay for pebbles 
               limited by the value of the damager?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, Rava was unsure, but Rav Papa was sure 
          that it is unlimited.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rava, why is pebbles called a 
          Toldah of Regel?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches that it is exempt in Reshus 
          ha'Rabim.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>MAV'EH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What is Mav'eh?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> Mav'eh is man 'if Tiv'ayun (you will 
          request).'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> Mav'eh is Shen 'Niv'u his hidden 
          treasures.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> How does that show that Mav'eh is Shen?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Yosef translated 'his treasures were 
          revealed.' (Teeth are sometimes hidden and sometimes 
          revealed.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't Rav learn like Shmuel?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah says 'Mav'eh', not Niv'eh.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't Shmuel learn like Rav?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah says Mav'eh, not Bo'eh.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> The verses do not adjudicate like Rav or 
          Shmuel. Why didn't Rav learn as Shmuel?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah says 'ox.' This includes all 
          damages of an ox.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Why does Shmuel argue?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> 'Ox' teaches Keren. Mav'eh 
          teaches Shen.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW SHMUEL EXPLAINS THE MISHNAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> Shmuel explains the Mishnah to say 'Re'i 
          (the leniency) of an ox (Keren), in which the damager 
          gets no Hana'ah, is unlike that of Mav'eh (Shen), in 
          which the damager gets Hana'ah; 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Re'i of Shen, which has no intent to damage, 
               is unlike that of Keren, which has intent to damage. 
               (Tosfos - he considers lack of Hana'ah or no intent 
               to damage to be leniencies, for it is easier to 
               guard one's animal from damage in these cases. The 
               next question disagrees with Rav Yehudah.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> We should be able to learn one from the other 
          from a Kal va'Chomer!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One is liable for Shen, which has no intent to 
               damage. All the more so, one should be liable for 
               Keren, which has intent to damage!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> We cannot learn from a Kal va'Chomer. One might 
          have thought that just like (the master of) a slave is 
          exempt, even though the slave intended to damage, also 
          Keren.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection (Rav Ashi):</font></b> We would not think so. The only 
          reason one is exempt for his slaves is lest a slave get 
          angry at his master, and decide to cause tremendous 
          damage to trouble him. This reason does not apply to 
          animals!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, Re'i, i.e. the stringency of Keren, 
          which has intent to damage, is unlike that of Shen, which 
          has no intent to damage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The stringency of Shen, in which there is Hana'ah 
               to the damager, is unlike that of Keren, which has 
               no Hana'ah to the damager.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Did the Tana teach Keren and Shen, and omit 
          Regel?!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Reisha, 'if they damaged, the damager must 
          pay from Meitav land' includes Regel.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection:</font></b> Regel should have been taught explicitly!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (to question 4:l, Daf 3b - Rava):</font></b> 'Ox' 
          teaches Regel, and Mav'eh teaches Shen.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The stringency of Regel, which is common, is 
               unlike that of Shen, which is not common;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The stringency of Shen, in which there is Hana'ah 
                    to the damager, is unlike that of Regel, which 
                    has no Hana'ah to the damager.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Did the Tana teach Regel and Shen, and omit 
          Keren?!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The Reisha, 'if they damaged, the damager must 
          pay from Meitav' includes Keren.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection:</font></b> Keren should have been taught explicitly!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> The Tana only lists explicitly things that are 
          Mu'ad (pay full damage) from the beginning.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't Shmuel learn like Rav?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> A later Mishnah (15b) teaches 'a Mu'ad ox, an 
          ox that damages on the premises of the victim (the one 
          whose property was harmed), and man.' This implies that 
          our Mishnah does not discuss man.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> Why doesn't our Mishnah discuss man?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> Our Mishnah discusses only damages of a man's 
          property, not of man himself.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question:</font></b> How does Rav explain why the later Mishnah 
          also mentions man?
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer:</font></b> That Mishnah lists all Mu'ad damagers.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW RAV EXPLAINS THE MISHNAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> How does Rav explain our Mishnah (how it 
          explains why an ox and Mav'eh needed to be written in the 
          Torah)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The stringency of an ox, which (i.e. its owner) 
          pays Kofer (ransom when it kills someone), is unlike that 
          of man, who does not pay Kofer;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The leniency of man, who pays four additional 
               damages (pain, medical expenses, Sheves 
               (compensation for total inability to work while sick 
               due to the injury), and embarrassment) is unlike 
               that of an ox, which is exempt from these.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> The Reisha says 'the Tzad ha'Shavah of (what 
          is common to) all the damagers is that it is their nature 
          is to damage.' Is this really true about an ox?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> This refers to a Mu'ad.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Is it really the nature of a Mu'ad to damage?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Yes!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Is it really the nature of a man to damage?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> This refers to a sleeping man.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Is it really the nature of a sleeping man to 
          damage?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Yes, because he retracts and stretches out his 
          limbs.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah continues, 'you are obligated to 
          guard them.' Regarding man, it should say 'he must guard 
          himself'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Counter-question:</font></b> Karna taught that there are 
               four Avos Nezikin, and man is one of them. How does 
               he explain why the Mishnah didn't say 'man must 
               guard himself'?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (R. Avahu):</font></b> The Mishnah should say 
               (regarding man), 'man must guard himself'.
<br>
<br>

sjt:
<font><b>1) DAMAGE DONE BY A 'BOR' TO A PERSON</b></font><b>
<br>QUESTIONS:</b> The Mishnah (2a) lists four Avos Nezikin. The Gemara here records Rebbi Oshiya's Beraisa which lists thirteen Avos Nezikin. In addition to the four of the Mishnah, it adds the four types of Shomrim and the five payments ('Chamishah Devarim') that a person must pay when he does damage to another person. The Gemara explains that according to Rav, who maintains that 'Mav'eh' in the Mishnah refers to Adam ha'Mazik (a person who does damage), the Mishnah includes in the word 'Mav'eh' all of the additional Nezikin that Rebbi Oshiya mentions because they are all carried out by a person (Adam). Rebbi Oshiya, on the other hand, lists these Nezikin individually because Mav'eh refers only to Adam who damages a Shor (his friend's animal); the other five payments of an Adam who does damage are payments required of an Adam who damages another person.
</p><p>
<b>RASHI</b> explains that the proof that the Mishnah -- when it mentions Adam (Mav'eh) -- discusses only an Adam who damages a Shor (Nizkei Mamon) is that it lists Mav'eh together with Bor. The Mishnah refers only to a Bor that damages an animal, because one is not liable at all if his Bor damages a person (as the Gemara on 28b derives from Shemos 21:33). Similarly, it must be that the Mishnah discusses only Mav'eh that damages an animal (and not a person).
</p><p>
There are a number of questions on Rashi's explanation.
</p><p>
(a) Why does Rashi say that the Torah completely exempts a person when his Bor damages another person? The Gemara (28b, 53b; see also Rashi there) clearly says that the Torah exempts a person only when his Bor <i>kills</i> a person. If one's Bor <i>damages</i> a person, then he <i>is</i> obligated to pay for the damages. (<b>TOSFOS RABEINU PERETZ</b>; see <b>RASHASH</b> and Acharonim.)
</p><p>
If Rashi seeks to prove that the Mishnah is not discussing Avos Nezikin that <i>killed</i> a person, he should prove it from the case of <i>Esh</i>. One is exempt from payment when one's Esh kills a person because he receives a much more severe punishment ('Kam Lei bid'Rabah Minei'; see Rashi to 10a, DH Mah she'Ein Ken). Moreover, Rebbi Oshiya cannot be discussing a man who <i>kills</i> a man because he such a man would not be liable for 'Chamishah Devarim.' (See also <b>TOSFOS</b> to 5a, DH li'Me'utei, and <b>MAHARAM SHIF</b> here.) Obviously, Rashi is trying to show that the Mishnah is not even discussing <i>damages</i> done to a person. How, though, can he prove this from Bor, if one <i>is</i> liable for damages that his Bor does to a person?
</p><p>
<b>TOSFOS RABEINU PERETZ</b> suggests that Rashi means only that the main form of damage caused by a Bor which the Torah discusses is death, as the verse says, 'v'Nafal Shamah Shor O Chamor' (Shemos 21:33). Therefore, the Mishnah is probably discussing a Bor that caused death, like the Bor of the verse. Hence, the Mishnah cannot be discussing a Bor that killed a person.
</p><p>
However, Rashi seems to exempt even the owner of a Bor even from <i>damages</i> done to a person, for he adds the word '[he is exempt] <i>l'Gamri</i>' -- 'completely.' Furthermore, if Rashi wants to prove with this logic that the Mishnah is not discussing a person who fell into a Bor, he should prove it from the fact that the Torah discusses an <i>ox</i> that falls into a Bor and thus the Mishnah also must be discussing an ox that falls into a Bor (regardless of whether or not the owner of the Bor is liable when a person falls into it).
</p><p>
(b) Why does Rashi not explain that the Gemara means simply that when Rebbi Oshiya lists Mav'eh, he obviously refers to a person who harmed a Shor as is clear from the fact that he lists, separately, a person who harms another person (by listing the five payments of 'Chamishah Devarim'). Why is it necessary for Rashi to prove that the Mishnah cannot be referring to a person who damaged another person? Moreover, the Gemara earlier says that according to Rav, when the Tana of the Mishnah lists Mav'eh, he includes both a person who damaged an animal ('Adam she'Hizik Shor') and a person who damaged another person ('Adam she'Hizik Adam')! (<b>TOSFOS RABEINU PERETZ</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The Gemara (10a) writes that one is exempt when his Bor damages items that are not expected to be damaged by a Bor ('Davar she'Eino Ra'uy Lo'). Originally, the Gemara thought that this referred to Kelim, utensils, but the Gemara rejects this possibility and says that it refers to something else. It is not clear from the Gemara, however, what <i>is</i> considered something that is not fit for a Bor. <b>RASHI</b> (5b, DH v'Chulhu) writes that a 'Davar she'Eino Ra'uy Lo' refers to a <i>person</i>.
</p><p>
<b>TOSFOS</b> there (DH Ki Shadis) is not satisfied with this explanation. Why should a person be considered unfit to be damaged by a Bor just because the Torah exempts the owner of the Bor from paying for the person's death? After all, the owner of the Bor <i>is</i> obligated to pay for damages that his Bor does to a person, and in that sense the person <i>should</i> be considered fit to be damaged by the Bor! Second, 'Davar she'Eino Ra'uy Lo' does not mean an item for which the owner is not liable, but rather it means that this item is not normally damaged by such a Mazik. Why should a person be less fit than an ox to be damaged by a Bor?
</p><p>
The <b>SHITAH MEKUBETZES</b> cites <b>RABEINU YISRAEL</b> who explains that Rashi means that it is unusual for a person to fall into a Bor because a person usually looks where he is walking. That is the reason why the owner of the Bor is exempt if a person dies in his Bor; it was the person's fault for not being cautious. (See Gemara on 27b, 'Iba'i Lei l'Iyunei.')
</p><p>
Later (9b), the Shitah Mekubetzes cites the <b>GILYON</b> who explains this more clearly. He writes that according to Rashi, the Torah exempts the owner of the Bor from responsibility for the death of a person because a person should watch where he walks. Nevertheless, the owner of the Bor is liable for damages done by his Bor to a person, since a person is cautious only to avoid an object that could cause his death; a person is not so careful to avoid something that will only damage him. Therefore, he does not notice the presence of a Bor that is less than ten Tefachim deep. (See also <b>TORAH TEMIMAH</b>, Shemos 21:263.)
</p><p>
However, according to this logic, the owner of a Bor that is ten Tefachim deep should be exempt even if a person falls in and is damaged, and not only if a person dies in it, because people avoid a Bor that can cause death! It seems, therefore, as the <b>MESHECH CHOCHMAH</b> (Shemos 21:33) points out, that according to Rashi the owner of the Bor would be liable for damages done to a person only when the Bor is less than ten Tefachim deep (and thus it can <i>only</i> cause damage and not death). If, however, the Bor is ten Tefachim deep, the owner of the Bor indeed would be exempt even from the damage that it causes to a person.
</p><p>
The Meshech Chochmah finds an allusion to this Halachah in the opinion of the Yerushalmi cited by the <b>RASHBA</b> (53b). The Yerushalmi rules that the owner of a Bor that is less than ten Tefachim deep is liable for damage done to Kelim (unlike the view of the Bavli). Only when the Bor is deeper than ten Tefachim is the owner exempt from paying for damage done to Kelim. (The Meshech Chochmah adds that when the depth of the Bor is ten Tefachim or more, people point it out to each other and caution each other to avoid it, since it could cause a person's death. When the Bor is less than ten Tefachim deep, a person might not notice it, and, moreover, people who do notice it will not make any effort to point it out to someone else walking near it.) (See also <b>DEVAR MOSHE</b> 78:2-8.)
</p><p>
This also explains what Rashi writes earlier (3a, DH v'Zeh Av l'Nezakin). Rashi there writes that when the verse says that 'an ox... falls there (into the Bor),' it refers to both an ox that was <i>damaged</i> by a Bor and an ox that was <i>killed</i> by a Bor. <b>TOSFOS</b> (DH Lo) asks that if this is true, then when the word 'Shor' teaches that one is liable only for damages  done to an ox and not to a person (''Shor' v'Lo Adam'), it should also exempt the owner of the Bor from paying for <i>damage</i> done to a person by his Bor, since the verse is discussing both damages and death. According to the way the Meshech Chochmah explains Rashi, this indeed is the Halachah. If a person falls into a Bor similar to the Bor of the verse (i.e. one whose depth is ten Tefachim or more) the owner of the Bor does not have to pay for damage done to the person. Only in the case of a Bor that is less than ten Tefachim deep must the owner pay for damages, and this is not the type of Bor that the Torah discusses.
</p><p>
Accordingly, this is what Rashi means when he writes here that the Bor of the Mishnah is exempt 'l'Gamri,' completely exempt from damages that it does to a person. He means that the Mishnah is discussing a ten-Tefach Bor, since that is the Bor to which the Torah refers. The owner of such a Bor is exempt from payment even when the Bor damages a person. This is also what the <b>TALMID RABEINU PERETZ</b> means when he writes that according to Rashi, the Mishnah is referring to the same Bor as the Torah, meaning a Bor that is at least ten Tefachim deep and which can cause death. 
</p><p>
(b) Regarding the second question, why does Rashi need to prove that the Mishnah <i>cannot</i> be discussing a Bor that damaged a person, <b>TOSFOS</b> (DH Trei Gavni) asks why Rebbi Oshiya separates Adam into two groups ('Adam she'Hizik Adam' and 'Adam she'Hizik Shor'), while he groups together Keren, Shen, and Regel all in one Av ('Shor' in the Mishnah, according to Rav). (See the answer of <b>TOSFOS</b> and <b>MAHARAM</b>.) Rashi may be bothered by this question as well. In order to answer this question, Rashi suggests that Rebbi Oshiya does not divide Shor into three separate categories, since the word 'Shor' can include all three (Keren, Shen, and Regel). However, the word 'Adam' in the Mishnah cannot include an Adam that damaged another Adam, as Rashi explains, and that is why Rebbi Oshiya found it necessary to add the list of obligations that are binding upon a person who damages another person.
</p><p>
Although Rav said earlier that when the Mishnah refers to Adam, it refers to <i>all</i> forms of damage caused by Adam, the Gemara now is retracting that answer and explaining that the Mishnah refers <i>only</i> to an Adam who damaged an animal according to Rav, and it omits the obligations that come from an Adam who damages an Adam, because the Mishnah is discussing only Avos Nezikin that cause damage to an <i>animal</i> and not to a person (as the Maharam explains).
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav will also say, the Mishnah should say 'man 
          must guard himself'.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Rav Mari):</font></b> We should say that Mav'eh is water 
          - 'like water Tiv'eh (bubbles) because of fire'!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> The singular conjugation 'Tiv'eh' shows that 
          the verb refers to fire (which makes the water bubble), 
          not Mayim (water, which is plural in Hebrew grammar).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question (Rav Zvid):</font></b> We should say that Mav'eh is fire 
          - 'like fire Tiv'eh (makes bubble) water'!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> This cannot be. Our Mishnah lists Mav'eh and 
          Hev'er (fire).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps Hev'er explains what Mav'eh 
               is!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection:</font></b> If so, the Mishnah only listed three 
               Avos (but it says there are four)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps it counts an ox like two 
               (Regel and Shen, which are Mu'ad from the 
               beginning).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection ((Mishnah):</font></b> The leniency of an ox and 
               Mav'eh, which are alive, is unlike that of fire.;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Fire is not alive! Also, it says, Mav'eh is not 
                    like fire!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>OTHER DAMAGERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Oshiya):</font></b> There are 13 Avos Nezikin: a Shomer 
          Chinam (one who guards a deposit for free), a borrower, a 
          Shomer Sachar (he is paid to guard it), one who rents an 
          object; Nezek (lifelong loss in earning potential), pain, 
          medical expenses, Sheves, and embarrassment; and the four 
          Avos of our Mishnah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why did our Tana list only four?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (according to Shmuel):</font></b> Our Tana lists only 
          damage of a man's money, not of man himself.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (according to Rav):</font></b> Our Tana listed man. This 
          includes all damages of man.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why did R. Oshiya list separately these 
          damages of man?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> He distinguishes a man who damages an animal 
          from a man who damages a man.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If so, he should also list separately an 
          animal that damages man, and an animal that damages an 
          animal!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> No. When man damages man, he pays four more 
          damages than when he damages an animal, so there is 
          reason to list them separately;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An animal always pays only Nezek!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> R. Oshiya listed the four Shomrim, which are 
          cases of man damaging animals!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> He lists overt damage, and damage that happens 
          by itself. The Mishnah lists only overt damage.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(R. Chiya):</font></b> There are 24 Avos Nezikin: the double 
          payment of a thief, the payment of four or five times 
          (the value of an animal sold or slaughtered after it was 
          stolen), a thief, a Gazlan (open robber), Edim Zomemim 
          (witnesses who testify about something they were not 
          present to see);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who rapes or entices (a virgin Na'arah), 
               Motzi Shem Ra (one who falsely claims that the 
               Na'arah he married was not a virgin);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One who is Metamei (e.g. food), one who mixes 
               Terumah with Chulin, one who pours libations to 
               idolatry, and the 13 Avos of R. Oshiya.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Why did R. Oshiya omit these other 11 Avos?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> He lists only payments of principal, but not 
          fines.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> He should have listed (the principal paid by) 
          a thief and Gazlan!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> These are included in the Shomrim.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> Why did R. Chiya list them separately?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> A Shomer received the property in a permitted 
          way. A thief or Gazlan took it improperly.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHY R. OSHIYA OMITTED THESE CASES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> R. Oshiya should have listed Edim Zomemim, 
          for they pay principal!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> He holds like R. Akiva, who says they do not 
          pay if they admit (i.e. it is a fine).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If he holds like R. Akiva, he should list 
          separately an ox that damages a man from an ox that 
          damages an animal!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Akiva):</font></b> Even a Tam (an animal not 
               established to gore) that damages a man pays the 
               full damage, less what the man damaged it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Akiva weakened his fist (might. He says that 
          a Tam that gores a person pays only from the animal. R. 
          Oshiya listed only damages that are paid from Meitav.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Akiva) Suggestion:</font></b> Perhaps a Tam 
               that gores a person pays (full) damage, even if it 
               is more than the animal is worth!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Will be done to it' - payment comes only 
               from the animal.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> R. Oshiya should have listed a rapist, 
          enticer and Motzi Shem Ra, for these pay principal (in 
          addition to a fine! Motzi Shem Ra pays only a fine. It 
          was taught unnecessarily with the others.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> They also pay Nezek, pain, and embarrassment. 
          He taught these!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Payment for the blemish is Nezek;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The other only payment is a fine. R. Oshaya does 
               not list fines!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> R. Oshiya should have listed one who makes 
          Tamei, one who mixes Terumah with Chulin, and one who 
          pours libations to idolatry, for these pay principal!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1:</font></b> If unrecognizable damage is considered 
          damage, this is Nezek!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2:</font></b> If unrecognizable damage is not considered 
          damage, a fine mid'Rabanan obligates one to pay for 
          these. R. Oshiya does not list fines!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Suggestion:</font></b> R. Chiya cannot hold that unrecognizable 
          damage is considered damage, for if so these cases would 
          be included in Nezek!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection:</font></b> He can hold that it is considered damage. He 
          lists separately recognizable and unrecognizable damage.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>EXCLUDED CASES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	The Tana of our Mishnah gave the number of Avos (four), 
          to exclude those of R. Oshiya and R. Chiya. R. Oshiya 
          gave the number of Avos (13), to exclude those of R. 
          Chiya;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why did R. Chiya say there are (only) 24 
          Avos? What does he exclude?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> He excludes a Moser (one who informs to the 
          government to take someone's property) and Mefagel (one 
          who disqualifies a Korban through improper intent during 
          the Avodah).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> He should have listed them!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> He did not list Mefagel, for he discusses 
          only Chulin.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> He did not list Moser, for he damages 
          through mere words. R. Chiya does not list such damagers.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> He listed Motzi Shem Ra, who damages through 
          words!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Motzi Shem Ra is liable only if he also did an 
          action (relations).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> He listed Edim Zomemim, who damage through 
          words alone!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The Torah calls their words a Ma'aseh (action) 
          - 'like he plotted La'asos (to do).'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> The Tana of our Mishnah mentioned Avos, 
          because there are also Toldos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Oshiya and R. Chiya also mentioned Avos. What 
               are the Toldos of their additions?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (R. Avahu):</font></b> They are all called Avos because 
          they pay from Meitav.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> (The Torah teaches about Meitav regarding a 
          Mu'ad ox.) An extended Gezeirah Shavah teaches this about 
          all 24. Regarding every one, it says 'Tachas', 'Nesinah', 
          'Yeshalem' or 'Kesef'.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHY THE TORAH WROTE ALL THE DAMAGERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The Re'i of an ox is unlike that of 
          Mav'eh...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why does the Mishnah say this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Zvid):</font></b> The Mishnah suggested that one 
          damager could have been learned from another. Then it 
          shows why it could not be learned.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The Re'i of these two, which are alive...
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why does the Mishnah say this?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Mesharshiya):</font></b> The Mishnah suggested that 
          one damager could have been learned from two damagers. It 
          then shows why it could not be learned.
<br>
<br>

sjt:
<font><b>1) THE PAYMENT REQUIRED OF 'EDIM ZOMEMIM'</b></font><b>
<br>QUESTION:</b> The Gemara cites a dispute about whether the payment that Edim Zomemim are required to pay when they are found guilty is a payment of 'Mamon' or a payment of 'Kenas.' The Rabanan maintain that it is Mamon. Rebbi Akiva maintains that it is Kenas.
</p><p>
The law is that Edim Zomemim are punished even though they did not actually cause damage to the defendant. Accordingly, they certainly are paying for <i>more</i> than the damage they caused. Why, then, should the payment of Edim Zomemim be considered Mamon and not Kenas? 
</p><p>
It is interesting to note that the Gemara in Makos (2b) asks only what the logic is for the opinion of Rebbi Akiva, who says that the payment of Edim Zomemim is Kenas, while it considers the logic for the opinion of the Rabanan to be self-evident. What, though, is their logic for considering the payment of Edim Zomemim to be Mamon, if no actual damage was done?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b>, citing <b>TOSFOS</b>, explains that the Gemara maintains that Edim Zomemim are obligated to pay even if they <i>did</i> cause a loss to the defendant. In such a case, the Rashba points out, it is clear why the punishment of Edim Zomemim is considered Mamon. The <b>PNEI YEHOSHUA</b> (end of 4b) explains that this is also the intention of <b>TOSFOS</b> (DH v'Edim Zomemim). (The <b>TOSFOS HA'ROSH</b>, however, explains the intention of Tosfos differently.)
</p><p>
What, though, is the status of the payment of Edim Zomemim when they were not successful in making the defendant pay? The Rashba explains that the Rabanan either agree that in such a case the payment of Edim Zomemim is Kenas, or they gave all of the payments of Edim Zomemim a status of Mamon, because in some cases the payment is indeed equivalent to the damage that was actually caused.
</p><p>
(b) The <b>RASHBA</b> himself answers that the payment of Edim Zomemim is considered Mamon since they <i>attempted</i> to make the defendant lose money.
</p><p>
What does this mean? Since they did not succeed in making him lose money, why should their punishment be considered Mamon?
</p><p>
Perhaps the Rashba means that the punishment of Edim Zomemim is that they must lose exactly what they wanted the defendant to lose. Since the defendant would have lost Mamon, money, therefore the Edim Zomemim must also be punished with the loss of Mamon. (Even if they tried to obligate the defendant to pay a Kenas, his obligation turns into one of Mamon and not Kenas since -- at the moment they secured the verdict (Gemar Din) -- the defendant became obligated to pay money.)
</p><p>
This is why the Rabanan assume that the payment of Edim Zomemim is Mamon.
</p><p>
(c) The <b>NETZIV</b> points out that <b>RASHI</b> seems to address this question as well in his lengthy explanation (DH Edim Zomemim). However, it is not clear how Rashi answers this question.
</p><p>
Perhaps Rashi's point is that the Mishnah presents a clear definition of 'Kenas' -- a Kenas is any payment that is 'more than the value of the damages' (or <i>less</i> than the worth of the damages, according to the opinion that Chatzi Nezek is a Kenas, 15b). Similarly, any <i>set</i> amount is considered a Kenas. The logic for this is that a Kenas is intended as a deterrent to prevent a person from doing the act, and it is not intended to match the crime. Therefore, the amount of the Kenas should not depend on the value of the damage that was done. Rather, it should be either an established sum regardless of the damage, or a set <i>multiple</i> of the damage (such as double the damage, or four or five times the value of the damage).
</p><p>
In the case of Edim Zomemim, however, the amount that the Edim Zomemim must pay is determined by the value of the damage that they attempted to cause. This is not consistent with any of the descriptions of Kenas, and therefore it must be considered Mamon.
</p><p>
Why, though, does the Torah obligate Edim Zomemim to pay for damages which they did not do? This obligation is the Torah's Chidush of Edim Zomemim. Since the Edim caused a Gemar Din, and they would have caused a loss of money had they not been caught at the last moment, they are considered as though they already caused the loss of money. As a result, the punishment of Edim Zomemim is Mamon.
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rava):</font></b> A pit and any of the others could teach 
          (through a Tzad ha'Shavah) the remaining two;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The only exception is Keren. We could not learn 
               it, for the sources are Mu'ad from the beginning, 
               but Keren is not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to the opinion that it is more 
               reasonable to obligate Keren, for it has intent to 
               damage, even Keren could be learned. (Rashi was 
               unsure which opinion this. Tosfos says that it is 
               the opinion that half damage is Mamon, not a fine. 
               The Gra holds that it is the conclusion of Rav 
               Yehudah (4a).)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why did the Torah write all four?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The Torah teaches special laws about each of 
          them:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It teaches Keren to distinguish between Tam and 
               Mu'ad;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It teaches Shen and Regel to exempt them in 
               Reshus ha'Rabim;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It teaches a pit to exempt for Kelim damaged in a 
               pit;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> R. Yehudah obligates even for Kelim. 
                    What special law of a pit does he learn?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer:</font></b> We exempt for a man damaged in a 
                    pit.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> It teaches fire to exempt for Tamun (things that 
               were concealed).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> R. Yehudah obligates even for Tamun. 
               What special law of fire does he learn?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> One is liable even if a field or rock was 
               charred.
<br>

sjt:
<p>
<font><b>2) DERIVING ALL OF THE 'NEZIKIN' THROUGH A 'TZAD HA'SHAVEH'</b></font><b>
<br>QUESTIONS:</b> Rava teaches that all of the Avos Nezikin mentioned in the Mishnah, except for Keren, can be derived through a 'Tzad ha'Shaveh' from Bor together with any one of the other Nezikin. From Keren together with Bor, all of the Nezikin can be derived. <b>RASHI</b> explains exactly how Shen, Regel, Esh, and Adam are derived through a Tzad ha'Shaveh when one of the other Nezikin is combined with Bor. 
</p><p>
There are a number of conspicuous omissions from Rashi's lengthy explanation.
</p><p>
When Rashi shows how the Nezikin are derived from Keren and Bor, he explains how Shen, Regel, and Esh are derived, but he does not address Adam. (<b>RASHASH</b>, <b>LECHEM ABIRIM</b>)
</p><p>
Moreover, although Rashi explains how a Tzad ha'Shaveh can be made from Bor and Keren, from Bor and Shen, from Bor and Regel, and from Bor and Esh, Rashi does not explain how the Tzad ha'Shaveh can be made from Bor and Adam. Why does he omit this?
</p><p>
<b>ANSWER: TOSFOS</b> (DH Ki Shadis) asks how a Tzad ha'Shaveh can be made from Bor and Adam. None of the Nezikin should be able to be derived from Bor and Adam because of the Pircha that Bor and Adam are 'Ma'asav Garmu Lo.' (Bor is considered 'Ma'asav Garmu Lo' because the damage caused by the Bor is considered a direct result of the owner's actions, as the Gemara on 6a states. Damage caused by Adam ha'Mazik obviously is a direct result of the Adam's actions). Although Tosfos answers this question, Rashi does not seem to accept his answer, and therefore he explains that the Sugya here does not relate at all to Adam. Rather, Rava refers only to the Nezikin mentioned in the Mishnah, and he apparently follows the view of Shmuel who asserts that Adam is not included in the Mishnah. Therefore, Rashi mentions Adam only when he can easily insert it, by including it in a single word (such as by saying that 'Adam, too,' is derived from the Tzad ha'Shaveh of Bor together with Shen or Regel). Rashi does this in order to explain why the Gemara finds it necessary to point out why Adam was written in the verse (to teach the four payments for damage that he incurs -- Tza'ar, Ripuy, Sheves, and Boshes), implying that Adam could have been learned from a Tzad ha'Shaveh (and was written explicitly only to teach the four payments). However, when he explains how the Nezikin are derived from Bor and Keren, he deals with each one at length, and therefore he does not address Adam. Also, when he explains the Tzad ha'Shaveh between Bor and each of the Nezikin, he discusses each of them at length, and, therefore, he does not discuss the Tzad ha'Shaveh between Adam and Bor.
</p><p>
This is also evident from Rashi's words later (DH Liftor Bo), where he explains that one is exempt from damage done by his Esh to items that were hidden ('Tamun'), which is not true of 'Shor, Bor, and Mav'eh.' Rashi addresses only the Nezikin of the Mishnah and he does not mention Adam, and he even refers to Shen as 'Mav'eh,' since that is the word which the Mishnah uses.
</p><p>
This is also why Rashi adds a special comment (on the words, 'Adam, l'Chayvo b'Arba'ah Devarim') and says, 'Adam -- this is why the Torah wrote it.' Rashi's words seem unnecessary. In fact, he adds no such comment to the Gemara's earlier discussion of Keren, Shen, Regel, and Bor!
</p><p>
According to the above explanation, however, Rashi's intention is clear. The Gemara should not have discussed Adam, since it is not one of the Nezikin mentioned in the Mishnah. Rashi therefore must point out that the Gemara nevertheless must give a reason to explain why Adam is written in the verse, since it can be derived from a Tzad ha'Shaveh, like the other Nezikin that <i>are</i> listed in the Mishnah.
</p><p>
If Rava is discussing only the Nezikin that are included in the Mishnah according to the opinion of Shmuel, then why does he discuss <i>Keren</i>? In the Gemara earlier (4a), Rava himself says that Keren is not included in the Mishnah, but rather the end of the Mishnah (9b) alludes to it (see Rashi there). If Rava here is addressing even the Avos Nezikin mentioned in later Mishnayos, then he should address Adam as well, since Adam is mentioned in the Mishnah later (15b)!
</p><p>
Apparently, Rashi understands that Rava here follows Rav Yehudah's interpretation (3b) of the Mishnah. Rav Yehudah explains that according to Shmuel, 'Shor' refers to Keren, and 'Mav'eh' refers to Shen. Therefore, Keren <i>is</i> included in the Mishnah. (See <b>PNEI YEHOSHUA</b>.)
</p><p>
This, however, creates two other problems. First, Rava himself rejects Rav Yehudah's explanation because, according to Rav Yehudah, the Mishnah omits Regel for no reason. Second, why does Rashi address the Mazik of Regel any more than the Mazik of Adam, if neither of them is discussed in the Mishnah?
</p><p>
The answer to these questions may be found in the Yerushalmi. According to the Yerushalmi (cited by the Rashba on 2b), the third Mazik in the Mishnah is learned from the verse, 'Ki Yav'er Ish Sadeh' (Shemos 22:4). What hint is there in that verse to the word, 'Mav'eh'? It is clear that the proper Girsa in the Yerushalmi is that of the <b>RAMBAM</b> (Minyan ha'Mitzvos, beginning of Nizkei Mamon), whose rendition of the Mishnah reads 'Mav'er' instead of 'Mav'eh.' The word 'Mav'er' refers to both Shen and Regel, which are mentioned in the verse, 'Ki <i>Yav'er</i> Ish.' This is clearly not the Girsa of the Gemara here (as is evident from the lengthy discussion on 3b about what 'Mav'eh' means). Perhaps Rava here explains the Mishnah according to the Girsa of 'Mav'er.' Since 'Mav'er' can refer to either Shen or Regel (or to both), which are mentioned in the verse that starts 'Ki Yav'er...,' there is no reason to reject Rav Yehudah's explanation of the Mishnah. 'Shor' refers to Keren, and 'Mav'er' refers to both the Nezikin of Shor and Regel. (Even according to the Girsa of our text, 'Mav'eh' might be equivalent to 'Mav'er,' since the guttural letters 'Reish' and 'Heh' are interchangeable.)
</p><p>
If this approach is correct, it may provide a new understanding to another comment of Rashi. Rashi (beginning of 5b) writes that had the Torah written only Shor and Mav'eh, and one would have asserted that Keren cannot be derived from that Tzad ha'Shaveh because Keren is 'Kavanaso l'Hazik,' one could have countered that 'Shen Tochi'ach.' Similarly, if one would have asserted that Shen cannot be derived from that Tzad ha'Shaveh because Shen is 'Hana'ah l'Hezeko,' one could have countered that 'Keren Yochi'ach.' Rashi there translates 'Shor' as Keren, and 'Mav'eh' as Shen. This follows neither the opinion of Rav (who says that 'Shor' is Keren, Shen, and Regel) nor the opinion of Shmuel (who says that 'Shor' is Regel, according to Rava on 4a, and Rashi here is explaining Rava's statement here!). (<b>MAHARAM SHIF</b>, <b>NETZIV</b>, <b>RASHASH</b>)
</p><p>
According to the above explanation, Rashi's words are clear. In the Sugya here, Rava is clearly explaining that 'Shor' in the Mishnah is Keren, and 'Mav'eh' in the Mishnah is Shen (and perhaps Regel as well).
</p><p>
This also explains the words of Rashi earlier (2a, DH ha'Shor v'ha'Bor), where he writes that the order of Nezikin in the Mishnah follows the order in which they are written in the Torah. However, as Tosfos (DH ha'Shor) points out, according to Rav and according to Rava's interpretation of Shmuel, the Nezikin listed in the Mishnah do not follow the order of the verses at all. Based on the above explanation, it is clear that Rashi follows the opinion of Rav Yehudah, since that is the opinion which Rava himself eventually favors, and according to that opinion the Nezikin are indeed listed in exactly the same order as they appear in the verses in the Torah. (M. Kornfeld)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ANOTHER CASE THE MISHNAH TEACHES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The Tzad ha'Shavah of them (their nature is 
          to damage...)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What does this come to include?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> One left a stone, knife or load on 
          top of his roof, and they fell in a common wind and 
          damaged.
<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 they damaged while they were falling, this is 
               exactly like fire (we would not need to learn from a 
               Tzad ha'Shavah)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Another force participates. They are your money 
                    and you are responsible to guard them. This is 
                    just like fire!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, they damaged after they came to rest.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If the owner was Mafkir them, Rav and Shmuel 
          agree that this is a pit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They are prone to damage from the beginning, they 
               are your money and you are responsible to guard 
               them. This is just like a pit (we would not need a 
               Tzad ha'Shavah)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, he was not Mafkir them.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection:</font></b> According to Shmuel, even if he was not 
          Mafkir them, this is exactly like a pit!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, he was Mafkir them. This is unlike a 
          pit, for another power participated;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We need to learn from fire that participation of 
               another power does not exempt.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> We cannot learn from fire. Fire moves and 
          damages!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from a pit that even stationary 
          damagers are liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is the Tzad ha'Shavah of the Mishnah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2 (to Question (b) - Rava):</font></b> The Tzad ha'Shavah 
          teaches about a pit (i.e. an obstacle) that is kicked 
          around by people and animals.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the owner was Mafkir them, Rav and Shmuel 
               agree that this is a pit;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  They are prone to damage from the beginning, they 
                    are your money and you are responsible to guard 
                    them. This is just like a pit!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, he was not Mafkir them.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> Even so, according to Shmuel, this is exactly 
          like a pit!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, he was Mafkir them. This is unlike a 
          pit, which damages due to the owner's action (digging 
          it);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, the damage is not due to the owner's action 
               (rather, to the one who kicked it to the place where 
               it damaged!)
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  	We learn from an ox that one is liable even when the 
          damage is not due to the owner's action.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question:</font></b> We cannot learn from an ox, it normally moves 
          and damages!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from a pit that even stationary 
          damagers are liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is the Tzad ha'Shavah of the Mishnah.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DAMAGES FROM PERMITTED ACTIONS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #3 (to Question 1:b - Rav Ada bar Ahavah):</font></b> The 
          Tzad ha'Shavah includes the following case.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One may empty his waste water or the 
               refuse of his cave into the Reshus ha'Rabim in 
               winter, but not in summer;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even though this is permitted, he is responsible 
               for any resulting damage.
<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><font color='darkgreen'> Suggestion:</font></b> If they damaged before they came to 
               rest - this is a result of his action (i.e. this is 
               a man who damages. We need not learn from a Tzad 
               ha'Shavah)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, they damaged after they came to rest.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If the owner was Mafkir them, Rav and Shmuel 
          agree that this is a pit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They are prone to damage from the beginning, they 
               are your money and you are responsible to guard 
               them. This is just like a pit!
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Answer #1 Rather, he was not Mafkir them.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection:</font></b> According to Shmuel, this is exactly like a 
          pit!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, he was Mafkir them. This is unlike a 
          pit, for one may not dig a pit (in Reshus ha'Rabim). 
          Here, the owner did not transgress!
<br>
<br>

sjt:
<font><b>1) THE DAMAGE DONE BY AN ITEM THAT FALLS</b></font><b>
<br>QUESTION:</b> The Gemara discusses the case which the Tzad ha'Shaveh of the Mishnah (2a) includes. The Gemara first suggests that the Tzad ha'Shaveh teaches that if a person places a stone, knife, or package ('Avno, Sakino, u'Masa'o') on his roof and it falls due to a Ru'ach Metzuyah (the type of wind that is common), he is liable to pay for the damage that it causes. The Gemara asks that such a case does not need to be derived from a Tzad ha'Shaveh since it is obvious that the owner is liable: if the item damaged while in flight, it is in the category of Esh; if it damaged after it landed, it is in the category of Bor!
</p><p>
<b>RASHI</b> explains that the Gemara means that after the item landed, 'it damaged a Shor or Chamor.' 
</p><p>
Why does Rashi find it necessary to explain what was damaged by the item which fell from the roof? If his intention is to exclude damage done to Kelim since the owner of a Bor is exempt from damage done to Kelim, Rashi's words seem extraneous. The exemption of Kelim is the subject of a dispute between Rebbi Yehudah and the Chachamim, and there is no reason to make the Gemara here contingent on that dispute. It must be that Rashi's intent is to exclude a <i>person</i> who was damaged by the item after it landed. Why, though, should Rashi exclude a person? Although the owner of a Bor is exempt from payment if his Bor caused the <i>death</i> of a person, the owner of the Bor is liable for <i>damages</i> done to a person, as the Gemara says (28b). Why, according to Rashi, should the Gemara here not be referring to a person who tripped on the item and incurred damages?
</p><p>
In fact, earlier (3a) -- when the Gemara first mentions the case of 'Avno Sakino u'Masa'o' -- Rashi (DH Avno) explains that <i>people</i> tripped over the item and were damaged! Rashi (19b, DH Aval Kashro) gives a similar explanation when the Gemara says that a person is liable for damages caused by his rope that he ties to a chicken which is in Reshus ha'Rabim; Rashi's example is that if a person trips on the rope, the owner of the rope will be liable. Rashi does not mention damage done to animals.
</p><p>
Why, in the Sugya here, does Rashi specifically mention Shor and Chamor (to exclude damage done to a person), while in the other Sugyos Rashi mentions that a <i>person</i> was damaged by the item resting in Reshus ha'Rabim?
</p><p>
<b>ANSWER:</b> The reason why Rashi normally uses the example of a person who tripped on the item in Reshus ha'Rabim, rather than the example of an animal, might be that such a form of damage is the more basic case which would obligate the owner of the Bor, since the Gemara later (54b) concludes that one is not obligated for damages done to a Shor and Chamor in a Bor unless the Shor is a Shor Cheresh, Katan, Shoteh, or Suma (a deaf, young, mad, or blind ox). In contrast, when a person trips on a Bor, the owner of the Bor is liable for the damages even if the person is of sound mind and has all of his faculties, as Tosfos says later (27b, DH l'Fi).
</p><p>
The Gemara here, however, is discussing Halachos that can be derived through the Tzad ha'Shaveh from the Avos Nezikin mentioned in the Mishnah. Rashi earlier (4b, DH Tana Adam; see Insights there) explains that the Bor mentioned in the Mishnah is a Bor that can kill (a Bor that is ten Tefachim deep), and not just one that only causes damage (a Bor that is nine Tefachim deep). Hence, the Halachah derived from a Tzad ha'Shaveh must involve an 'Avno, Sakino, u'Masa'o' that can <i>kill</i> a person. One who digs a Bor that kills a person is exempt. Why, though, does Rashi not explain that the 'Avno' or 'Sakino' <i>can</i> kill a person but it only damaged him, while if a person is damaged even in a Bor ten Tefachim deep the owner of the Bor is liable since the person was not killed?
</p><p>
The answer is that Rashi is consistent with his opinion expressed earlier (4b, as described in detail in the Insights there), that when the Bor is able to kill a person, the owner of the Bor is exempt not only from human death caused by the Bor but also from damages caused to a person by the Bor, because people normally avoid obstacles that are able to cause their death. (M. Kornfeld)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	We learn from an ox that one is liable even when the 
          owner did not transgress.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> We cannot learn from an ox, it normally moves 
          and damages!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from a pit that even stationary 
          damagers are liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is the Tzad ha'Shavah of the Mishnah.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #4 (to Question 1:b - Ravina):</font></b> The Tzad 
          ha'Shavah teaches the following case.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a wall or a tree fell into a Reshus 
               ha'Rabim and damaged, the owner is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Beis Din fixed a time by which he must cut his 
               tree or destroy his wall, if they fell within this 
               time, he is exempt; if they fell after this time, he 
               is liable.
<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 he was Mafkir them, Rav and Shmuel agree that 
                    it is a pit;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  The damage is common, they are your money 
                    and you are responsible to guard them. They are 
                    just like a pit!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, he was not Mafkir them.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection:</font></b> According to Shmuel, this is exactly 
               like a pit!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2:</font></b> Really, he was Mafkir them. They are 
               unlike a pit, which is prone to damage from the 
               beginning. These were not prone to damage from the 
               beginning;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We learn from an ox that one is liable even when 
                    they are not prone to damage from the 
                    beginning.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> We cannot learn from an ox, it normally 
               moves and damages!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> We learn from a pit that even stationary 
               damagers are liable. This is the Tzad ha'Shavah of 
               the Mishnah.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PAYMENTS OF DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He must pay for the damage (from the best of 
          his land).
<br> <b>    <b><font color='darkgreen'>(b)</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'>(c)</font></b></b>  	R. Akiva says, the verse teaches that damages are 
          collected from Idis (highest quality land), Kal va'Chomer 
          to Hekdesh.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> According to R. Yishmael, does he pay from 
          Idis, whether he damaged Idis or Ziburis (low quality 
          land)?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rav Idi bar Avin):</font></b> The case is, a patch of 
          the field was consumed, and we are unsure which one. He 
          pays for Idis.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> If we knew that he ate Ziburis, he 
          would pay Ziburis. Since we are in doubt, the one who 
          wants to collect must bring proof!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (R. Acha bar Yakov):</font></b> The case is, the 
          damager's Idis is like the damager's Ziburis;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yishmael holds that the payments are like the 
               victim's Idis. R. Akiva holds that the payments are 
               like the damager's Idis.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Yishmael's reason?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> He learns a Gezeirah Shavah 'Sadeh-Sadeh' (the 
          field from which payments are made is like the damaged 
          field).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Akiva expounds 'from the best of his field and 
               vineyard he will pay' - the field of the one who 
               pays.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yishmael learns from the Gezeirah Shavah and 
               from R. Akiva's verse.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He learns from the Gezeirah Shavah, like above;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  He learns from R. Akiva's verse, e.g., if 
                    the damager had Idis and Ziburis, and his 
                    Ziburis is not as good as the victim's Idis, he 
                    must pay with his Idis.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>HEKDESH COLLECTS FROM IDIS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Akiva):</font></b> The verse teaches that damages 
          are collected from Idis, Kal va'Chomer to Hekdesh.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the Kal va'Chomer?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It teaches about when a man's ox 
               gored a Hekdesh ox.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rejection:</font></b> The Torah obligates for goring 'the ox of 
               his fellowman', not the ox of Hekdesh!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, a man said 'it is upon me to give a 
          Maneh to Hekdesh.' The Kal va'Chomer teaches that Hekdesh 
          collects from his Idis.
<br>

sjt:
<p>
<font><b>2) DAMAGE DONE TO PROPERTY OF HEKDESH</b></font><b>
<br>QUESTIONS:</b> A Beraisa quotes Rebbi Akiva who says that the verse of 'Meitav Sadehu' (Shemos 22:4) teaches that payment for damage is collected from 'Idis' (highest quality property), and 'Kal va'Chomer for Hekdesh.'
</p><p>
The Gemara asks what Rebbi Akiva means by 'Kal va'Chomer for Hekdesh.' He cannot mean that one must pay from Meitav if his ox gores an ox of Hekdesh because of a Kal va'Chomer, because the verse says that one is liable only when his ox gores 'Shor Re'ehu' ('his friend's ox') and not when it gores an ox belonging to Hekdesh.
</p><p>
<b>RASHI</b> seems to be bothered by why the Gemara rejects this possibility. 'Shor Re'ehu' is mentioned in the verse which describes the obligations of <i>Keren.</i> Perhaps even if one is exempt from damages that Keren does to Hekdesh, one is <i>Chayav</i> for damages done by Shen and Regel to Hekdesh. Consequently, Rebbi Akiva might be discussing damages caused by Shen and Regel to Hekdesh (which are the damages about which the verse says 'Meitav Sadehu Yeshalem'). (Tosfos, DH Shor Re'ehu, is also bothered by this question.)
</p><p>
Rashi offers two approaches to answer this question. In his first approach, he writes that not only is one exempt from paying for damage done by <i>Keren</i> to Hekdesh, but one is exempt from <i>all</i> types of damage done to Hekdesh. (Tosfos, DH Shor Re'ehu, offers a similar answer and explains what the source is to exempt the other types of damages, other than Keren, when done to Hekdesh.)
</p><p>
In his second approach ('Lishna Acharina'), Rashi says that the Gemara does not want to explain that Rebbi Akiva refers to damages of Shen or Regel done to a field of Hekdesh, because it would not be possible to find a situation in which damage is done to a field of Hekdesh: if a person sanctified a field as Chermei Kohanim, the field is not Hekdesh but rather it belongs to the Kohanim (and it is like property owned by an ordinary person), and there is no reason to make a Kal va'Chomer to teach that one is liable for damages to such a field. If the field was sanctified for Bedek ha'Bayis, it would not remain in the hands of Hekdesh; Hekdesh would immediately have the original owner (the Makdish) or someone else redeem it. Rashi adds that if the field was damaged <i>before</i> it was redeemed, 'Ein Me'ilah b'Karka'os,' and thus one is exempt from damages done to anything attached to the ground, such as fruit growing from the field.
</p><p>
Rashi's concluding words, regarding 'Ein Me'ilah b'Karka'os,' are very difficult to understand.
</p><p>
(a) How is the rule of 'Ein Me'ilah b'Karka'os' related to the monetary obligation for damages done to Hekdesh? 'Me'ilah' refers to a case in which a person accidentally derives personal benefit from an item of Hekdesh by using it. The verse obligates a person who committed Me'ilah to reimburse Hekdesh for the benefit he derived from it, to add an extra fifth as a penalty, and to bring a Korban Asham Me'ilos. Although it is true that when one commits Me'ilah and benefits from Karka of Hekdesh he is exempt from the obligation to bring a Korban Asham and from the obligation to pay the penalty of an extra fifth, but what is the source that exempts him even from paying for the principle (for what he actually used)?
</p><p>
Moreover, the Gemara is not discussing benefit a person derives from Karka of Hekdesh, but rather benefit that his <i>animal</i> derives from Karka of Hekdesh, or damage that his animal does to fruit of Hekdesh by trampling it. The exemption from liability for Me'ilah done to Karka seems to have nothing to do with the Sugya. (Acharonim)
</p><p>
(b) Even if one is exempt from damage done by Shen and Regel to fruits of Hekdesh that are attached to the ground, why can Rebbi Akiva not be discussing damage that was done to fruits of Hekdesh which have become detached from a field of Hekdesh? Since they are detached from the ground, the rule of 'Ein Me'ilah b'Karka'os' does not apply, and therefore the owner of the Shor should be liable. (<b>MEROMEI SADEH</b>)
</p><p>
Conversely, if the rule of 'Ein Me'ilah b'Karka'os' applies to all damages done by Shen and Regel to Hekdesh, why does Rashi write first that Hekdesh cannot own land because it is redeemed immediately? Even if Hekdesh could own land, one would not be liable for damages to that land because of 'Ein Me'ilah b'Karka'os,' as Rashi concludes. (<b>MEROMEI SADEH</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHAL</b> (in Chochmas Shlomo and Yam Shel Shlomo) explains that Rashi does not intend to exempt one from damages done to land of Hekdesh because of the rule of 'Ein Me'ilah b'Karka'os.' Rather, Rashi means that one <i>is obligated</i> to pay for damages of Shen and Regel done to Hekdesh, because the Mishnah (9b) states that one is obligated for damages done to all property that does not have Me'ilah. Since land of Hekdesh has no Me'ilah, one is obligated to pay for damages done to it. Since one is obligated for damages done to it just as he is obligated for damages done to non-Hekdesh property, no Kal va'Chomer can teach that the obligation for payment for damage done to Hekdesh should be more severe than the obligation for payment for damage done to non-Hekdesh property.
</p><p>
As the Meromei Sadeh writes, this is very difficult to understand. The Mishnah later (9b) cannot be obligating a person to pay for damage done to Karka of Hekdesh just because there is no Me'ilah for Karka, as Tosfos (12b, DH Man Tana) proves from the Gemara later. Moreover, even if one is obligated to pay for damages done to Karka of Hekdesh, it does not diminish the sanctity of Hekdesh, and thus the Kal va'Chomer still should be valid.
</p><p>
The Meromei Sadeh suggests that Rashi indeed means to exempt -- through a Kal va'Chomer -- a person from paying for damages that his animal does to Hekdesh from the fact that one does not pay for Me'ilah done to Karka. When the verse exempts a person from paying for <i>Me'ilah</i> done to Hekdesh, it implies that the person is exempt from <i>all</i> payments, even for paying for damage done to the principle (since this exemption is derived through a comparison with Terumah; since Terumah cannot take effect at all while the fruit is attached to the ground, so, too, Me'ilah does not apply at all to Mechubar). If a person is exempt from payments for benefit that he derives from Karka of Hekdesh, then all the more so he is exempt from payments for damaging Hekdesh when he does <i>not</i> derive benefit from it. If he is exempt for damages that <i>he</i> does to Hekdesh, then all the more so he is exempt from damages that his <i>animal</i> does to Hekdesh. (See also <b>TIFERES SHMUEL</b>.)
</p><p>
(b) Perhaps Rebbi Akiva cannot be referring to fruit that is not attached to the ground since he is discussing Halachos derived from the verse of 'u'Vi'er bi'Sdeh Acher' (Shemos 22:4), and the verse implies that there was damage done to the field itself (Mechubar). It is clear from Rashi that Rebbi Akiva must be referring to the type of damage that is discussed in the verse, since Rashi only considers the possibilities that Rebbi Akiva is discussing an ox damaging an ox, or a Shen or Regel damaging a field. Why does Rashi not explain that Rebbi Akiva refers to Shen or Regel that damages a <i>Kli</i> of Hekdesh (for which there <i>is</i> Me'ilah)? It must be that since Rebbi Akiva is explaining the words 'Meitav Sadehu' of the verse, he must be referring to the case that the verse itself is discussing (i.e. damage done by Keren to an ox, or damage done by Shen or Regel to a field).
</p><p>
However, this does not answer the last question: why does Rashi need to explain that Hekdesh cannot own Karka, if one anyway is exempt from damages even if Hekdesh could own Karka? Also, there is no hint in the verse, 'u'Vi'er bi'Sdeh Acher,' that damage was done to fruit still attached to the field and not to fruit that was detached from the field.
</p><p>
It therefore seems that the two parts of the second question answer each other. 'Ein Me'ilah b'Karka'os' only provides an exemption for Shen or Regel that damages something attached to the ground. Rebbi Akiva still could be discussing Shen or Regel that damages fruit of Hekdesh that is <i>detached</i> from the field, for which Shen and Regel are <i>Chayav</i>. That is why Rashi prefaces that Hekdesh tries to sell its fields immediately. Therefore, if a person sanctified a field, it is unlikely that any of the fruit would have a chance to fall off before an ox would damage it with Shen or Regel. (If the fruit fell off before the owner sanctified the field, the fruit would not be Hekdesh, because presumably the person was Makdish only the field and what is attached to it. If he wanted to sanctify <i>fruit</i> to Hekdesh, he would have collected fruit in a basket and sanctified it separately.) This is why Rashi explains both that Karka does not remain in the hands of Hekdesh for long, <i>and</i> that 'Ein Me'ilah b'Karka'os.' (M. Kornfeld)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HEKDESH COLLECTS FROM IDIS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection:</font></b> This is like a debt. Debts are collected 
          from Beinonis!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps R. Akiva holds that debts are 
               collected from Idis.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> A (human) creditor is paid when his ox 
               is gored. We cannot learn to Hekdesh, which is not 
               paid when its ox is gored!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, a man's ox gored a Hekdesh ox. Akiva 
          expounds 'the ox of his fellowman' like R. Shimon ben 
          Menasya;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon ben Menasya):</font></b> If a Hekdesh 
               ox gores a man's ox, Hekdesh does not pay;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If a man's ox (whether Tam or Mu'ad) gores a 
               Hekdesh ox, he pays full damage. (Half-damage 
               applies only to 'the ox of his fellowman.')
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If so, what is the source that R. Yishmael 
          and R. Akiva argue when the damager's Ziburis is like the 
          victim's Idis?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps they agree that one pays like the Idis of 
               the victim. They argue only about R. Shimon ben 
               Menasya's law!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> If so, R. Akiva should not say 'the verse 
          comes only' (since he agrees about damages)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2:</font></b> If so, the Kal va'Chomer to Hekdesh is 
          inaccurate (for Hekdesh's Idis is surely better than the 
          damager's)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi - 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'>1.  </font></b></b> R. Akiva says, from the best land of the damager.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>PAYMENT UNLIKE THE TORAH SPECIFIED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> 'From the best of his field and 
          vineyard he will pay' teaches that only Idis may be paid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Beraisa #1):</font></b> 'He will return' 
               teaches that Shavah Kesef (something worth money) 
               may be given, even bran.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> The victim cannot refuse to be paid 
          with Idis. If he agrees, he may be paid with anything.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support (Ula brei d'Rav Ilai):</font></b> 'He will pay' - 
               against the wishes of the victim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Abaye):</font></b> It doesn't say 'he will be 
               paid', rather 'he will pay', which connotes that the 
               receiver agrees!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> The resolution is like Rabah taught:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> (One who has 200 Zuz is considered 
               rich, and cannot take gifts for the poor.) If Reuven 
               has houses, fields and vineyards (worth 200 Zuz), 
               but cannot sell them, he may take Ma'aser Oni, up to 
               half (100 Zuz).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rabah):</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the value of everyone's land declined, Reuven 
                    may receive even more (he is like any poor 
                    person, who may receive at once a gift of any 
                    size)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> Other people's land did not decline. 
               Reuven's land declined, because people know that he 
               must sell.
<br>
<br>

sjt:
<font><b>1) PAYING 'MEITAV' OF THE 'NIZAK' OR 'MAZIK'</b></font><b>
<br>QUESTIONS:</b> The Gemara (6b) cites a Beraisa in which Rebbi Yishmael states that the when the verse (Shemos 22:3) says that one whose animal damaged someone else's property must pay 'Meitav Sadehu,' it refers to the value of the <i>Nizak's</i> best field. Rebbi Akiva argues and says that the verse means to teach that one must pay from Idis 'and Kal va'Chomer for Hekdesh.' The Gemara understands that this means that one must pay with the best of the <i>Mazik's</i> field and not the Nizak's. The Gemara explains that when Rebbi Akiva says, 'Kal va'Chomer for Hekdesh,' he means that one must pay for damages done to Hekdesh because he follows the view of Rebbi Shimon ben Menasya who rules that a Shor Tam that gores a Shor of Hekdesh must pay Nezek Shalem.
</p><p>
The Gemara asks what indication is there that Rebbi Akiva argues with Rebbi Yishmael on two points? Perhaps he agrees that one must pay 'Meitav Sadehu' of the <i>Nizak</i>, and he argues only with regard to Hekdesh -- that even one who damages Hekdesh must pay and he is not exempt because of 'Shor Re'ehu' (Shemos 21:35).
</p><p>
The Gemara answers that it is clear from Rebbi Akiva's words that he argues also with regard to whose 'Meitav Sadehu' the Mazik must pay, and he maintains that he must pay the Meitav of the Mazik. This is clear from the fact that he emphasizes that his argument revolves around what is written in the verse (and paying Meitav for damage done to Hekdesh is not written in the verse, but only derived through a Kal va'Chomer). Second, if Rebbi Akiva argues only about damage done to Hekdesh, what Kal va'Chomer can he make?
</p><p>
<b>RASHI</b> explains the second inference of the Gemara as follows. If Rebbi Akiva maintains that the Meitav of the verse refers to the Meitav of the Nizak, he is lenient with the Mazik and allows the Mazik to pay just the Meitav of the Nizak. If this leniency applies to Hekdesh as well, there must be some element in Hekdesh that is more lenient than its counterpart in Hedyot. However, Hekdesh is always more severe than Hedyot, because one must pay Nezek Shalem even when one's Shor Tam damages Hekdesh, according to Rebbi Akiva's derivation from the word 'Re'ehu.'
</p><p>
(a) Why does Rashi assert that Rebbi Akiva applies a <i>Kula</i> (leniency) to Hekdesh with the Kal va'Chomer if he maintains that one pays Meitav of the Nizak? Perhaps he is teaching a <i>Chumra</i> for Hekdesh with the Kal va'Chomer -- that one must pay Meitav for damage done to Hekdesh and not just Beinonis, through a Kal va'Chomer that even damage done to Hedyot is paid with Meitav. When does Rebbi Akiva mention anything about a Kula of paying only Meitav of the Nizak? (<b>TOSFOS</b> DH v'Od)
</p><p>
(b) Why does Rashi write that the reason Hekdesh is more severe than Hedyot is that Rebbi Akiva follows Rebbi Shimon ben Menasya who rules that one whose Shor Tam gores a Shor of Hekdesh pays Nezek Shalem? Even if one would not have to pay Nezek Shalem when his Shor Tam gores a Shor of Hekdesh, logically Hekdesh still would be more severe than Hedyot since one must pay a penalty of Me'ilah for using an item of Hekdesh but not for using an item of Hedyot! In fact, for this reason the Gemara earlier (end of 6b) assumed that Rebbi Akiva was teaching that a Shor of Hedyot that gores a Shor of Hekdesh must pay Meitav through a Kal va'Chomer, even though it did not yet know that a Shor Tam that gores Hekdesh pays Nezek Shalem. (<b>DEVAR MOSHE</b> #104)
</p><p>
(c) Why does Rashi add at the end of his explanation the source for Rebbi Akiva and Rebbi Shimon ben Menasya's Halachah that a Shor Tam pays Nezek Shalem to Hekdesh? Rashi already explained the opinion of Rebbi Shimon ben Menasya and his source earlier (DH Meshalem Nezek Shalem).
</p><p>
Moreover, what does that source have to do with the Gemara's question here, 'What is the Kal va'Chomer?' Rashi should write only that Hekdesh is more severe because a Shor Tam that gores Hekdesh pays Nezek Shalem, without repeating the source. (<b>GE'ON TZVI</b>, <b>IMREI BINYAMIN</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>PNEI YEHOSHUA</b> explains that according to Rashi, when Rebbi Akiva uses the word 'Idis' he alludes to the Chidush that the Tana Kama, Rebbi Yishmael, teaches in the beginning of the Beraisa. Rebbi Yishmael does not intend to teach that one pays Meitav (for that is explicit in the Torah). Rather, he teaches that the Meitav mentioned in the Torah is not the more severe type of Meitav (i.e. the Meitav of the Mazik), but rather it is the more lenient payment, the Meitav of the Nizak. When Rebbi Akiva repeats that damages are paid from Idis, if he agrees that the Idis is the Idis of the Nizak he is repeating the statement of Rebbi Yishmael in order to emphasize that one pays only the lenient form of Meitav. Accordingly, his Kal va'Chomer for Hekdesh must also teach that this lenient ruling of Hedyot with regard to Meitav applies to Hekdesh as well (not like Rebbi Yishmael, who maintains that there is no payment at all for damage done to Hekdesh).
</p><p>
(b) The reason why Rashi writes that the Chumra of Hekdesh is that one pays Nezek Shalem when his Shor Tam damages Hekdesh is that Rashi understands that with regard to the Kal va'Chomer, the only Chumra or Kula that matters is where one <i>does</i> pay for damage done to both Hekdesh and to Hedyot, but the payment to one is greater in quantity or quality than the payment to the other. Hence, if one is exempt for damaging either Hekdesh or Hedyot but he is liable for damaging the other, that law does not prove that there should be a leniency with regard to paying a normal payment and not Meitav (when there is an obligation to pay).
</p><p>
Therefore, the fact that one pays Me'ilah to Hekdesh and not to Hedyot cannot prove that the payment to Hekdesh should be more severe than the payment to Hedyot, in the type of case in which damages are paid to both Hekdesh and Hedyot. Rashi needs to cite the Halachah of Rebbi Shimon ben Menasya, that although a Tam pays Chatzi Nezek to a Hedyot he pays Nezek Shalem to Hekdesh, which shows that even when both payments must be made, Hekdesh is more severe.
</p><p>
This is the question on the potential Kal va'Chomer which would teach that Hekdesh is <i>less</i> severe than Hedyot and that one does not pay Meitav when he pays to Hekdesh.
</p><p>
What is Rashi's source for this? Perhaps Rashi follows the 'Lishna Achrina' that he writes earlier (6b, DH Shor Re'ehu). Rashi there explains that one is exempt from paying for damages done to Hekdesh which is Mechubar (see previous Insight). If it is true that one is exempt for paying for damages for Hekdesh which is Mechubar even though one is liable to pay for damages done to an item of Hedyot which is Mechubar, this should refute any Kal va'Chomer which attempts to show that Hekdesh is more severe than Hedyot with regard to payments for damage. How, then, can Rebbi Akiva make a Kal va'Chomer to obligate one to pay Meitav for damaging Hekdesh, even according to Rebbi Shimon ben Menasya? (<b>TOSFOS</b>, DH v'Rebbi Akiva, asks a similar question according to the way he learns the Sugya, which conforms with Rashi's 'Lishna Kama.' However, the answers that he and the Rishonim suggest for that question have no bearing on the question according to Rashi's 'Lishna Achrina.')
</p><p>
Because of this question, Rashi is forced to learn that the fact that one is exempt from paying Hekdesh for damages done to Mechubar does not show that Hekdesh is weaker with regard to being paid Meitav when one <i>is</i> obligated to pay Meitav. This opinion of Rashi is expressed earlier (DH v'Chi Teima). The Gemara there states that even if one pays Idis to a lender, a Kal va'Chomer cannot teach that one would pay Idis for a debt that one owes to Hekdesh, since Hekdesh is weaker because it does not receive payment for damage done to it (when one's ox gores an ox of Hekdesh, as derived from 'Shor Re'ehu').
</p><p>
Instead of explaining the Pircha that Hekdesh is weaker since one is exempt from paying Hekdesh while he is obligated to pay Hedyot for damages, Rashi writes that Hekdesh is weaker because one is obligated to pay Idis for damaging a Hedyot whereas he does not pay Hekdesh at all. Why does Rashi mention the fact that one pays Idis for damage done to Hedyot? The answer is that the exemption from compensating Hekdesh cannot be a Pircha on a Kal va'Chomer which teaches a Halachah about Meitav. Rather, the Pircha is from the fact that there are fewer requirements to pay Idis to Hekdesh (and perhaps even no such requirements) than there are to pay Idis to Hedyot. Since there are fewer times where Hekdesh receives Idis, when one pays a debt to Hekdesh perhaps he may pay with ordinary fields (Beinonis) and not with Idis. 
</p><p>
Rashi in Gitin (49a), where he does not cite the 'Lishna Achrina,' is consistent with this explanation. Rashi there does not mention that Hedyot is more severe because Idis is paid to Hedyot, and he also does not mention that the Kal va'Chomer of Rebbi Shimon ben Menasya is based on the law that one pays Nezek Shalem when one's Shor Tam damages Hekdesh.
</p><p>
(c) The answer to the second question answers the third question as well. Why does Rashi repeat that Rebbi Akiva learns that a Shor Tam pays Nezek Shalem to Hekdesh from 'Shor Re'ehu'? Rashi was bothered by the following question: how can we eliminate the possibility that Rebbi Akiva is teaching a Kula by saying that Hekdesh is more severe than Hedyot since one must pay Nezek Shalem for damaging it? Since the Tana'im argue whether one is liable to pay for damages done to Hekdesh, perhaps Rebbi Akiva compromises and rules that when one damages Hekdesh he <i>is</i> liable; however, he does not have to pay more to Hekdesh than he pays to Hedyot. Hence, we do not find that Hekdesh is more severe than Hedyot with regard to receiving a better payment, and, therefore, if Hedyot receives only the Meitav of the Nizak, then perhaps Hekdesh also should receive only the Meitav of the Nizak.
</p><p>
The words 'Kal va'Chomer' which Rebbi Akiva uses mean that if we find that Hedyot -- which is paid Meitav for damages of Shen and Regel -- nevertheless gets paid only Meitav of the Nizak for damages done by Keren, then Hekdesh -- which is not paid Meitav for Shen and Regel (rather, one is exempt from payment because the verse that discusses Shen and Regel does not refer to Hekdesh, since Hekdesh cannot have a field for the Shen or Regel to damage) -- certainly is paid only Meitav of the Nizak for damages done by Keren.
</p><p>
(If the verse of Shen and Regel is not discussing Hekdesh, Hekdesh cannot be derived from Hedyot through a Binyan Av because the fact that Hekdesh does not receive payment for damages done to its Karka is a 'Pircha Kol d'Hu' which can be used to thwart a Binyan Av, even if such a Pircha is not considered a Pircha on a Kal va'Chomer, as explained above. See Chulin 116a.)
<br> 
<br>Why, then, does the Gemara ask that Rebbi Akiva must be making his Kal va'Chomer to show that Hekdesh is more severe? Rashi answers that it is impossible for Rebbi Akiva to make such a compromise and say that one pays Hekdesh the same way he pays Hedyot. The word 'Re'ehu' clearly limits to <i>Hedyot</i> the Halachos of the verse with regard to Shor. Therefore, one must either be completely exempt for damaging Hekdesh or one must be liable <i>more</i> for damaging Hekdesh. Since Rebbi Akiva maintains that one <i>is</i> liable for damaging Hekdesh, he must also maintain that one pays more for damaging Hekdesh than for damaging Hedyot. Hence, he must maintain that the Kal va'Chomer proves that Hekdesh is more severe. (M. Kornfeld)
</p><p>


<font><b>2) THE PURPOSE OF REBBI AKIVA'S 'KAL VA'CHOMER'</b></font><b>
<br>QUESTION:</b> The Gemara concludes that Rebbi Akiva's Kal va'Chomer is used to teach that even one who damages Hekdesh is obligated to pay, and to pay with Meitav.
</p><p>
If Rebbi Akiva maintains that one is liable for damage done by Keren to Hekdesh, as Rebbi Shimon ben Menasya rules, why does he need a Kal va'Chomer to teach that one is liable to pay for damages done to Hekdesh, and that one pays Meitav to Hekdesh? According to Rebbi Shimon ben Menasya, the verse does not distinguish between Hekdesh and Hedyot with regard to payments for damages, except in the case of a Shor Tam (which pays 'mi'Gufo' and does not pay Meitav). Accordingly, the same verse that teaches that Hedyot is paid with Meitav should also teach that <i>Hekdesh</i> is paid with Meitav! Why should a Kal va'Chomer be necessary? (<b>RASHBA</b>, Gitin 49a)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> in Gitin and the <b>TOSFOS SHANTZ</b> (cited by the Shitah Mekubetzes here) answer that Rebbi Akiva derives from the word 'Acher' ('u'Vi'er bi'Sdeh Acher,' Shemos 22:4) that the verse discusses only Hedyot, since 'Acher' means someone else similar to the Mazik. (Although the Gemara makes no such Derashah here, the Rishonim cite such a Derashah from Zevachim 7a.) How, though, will a Kal va'Chomer teach that one <i>is</i> liable for damages done to Hekdesh if the verse excludes payments to Hekdesh from the word 'Acher'?
</p><p>
The Rashba answers that the word 'Acher' is not a clear Derashah, and that once there is a Kal va'Chomer, logic dictates not to expound the word 'Acher' in such a way.
</p><p>
(b) The <b>TOSFOS SHANTZ</b> suggests further that Rebbi Akiva's Kal va'Chomer was necessary in order to teach that a Tam which damages Hekdesh and pays Nezek Shalem (as Rebbi Shimon ben Menasya rules) must pay with Meitav. Without the Kal va'Chomer one would have thought that one does not have to pay Meitav, since one never pays Meitav for damage done by Shor Tam, but rather one pays 'mi'Gufo.'
</p><p>
According to this answer, however, one must assume that when one pays Nezek Shalem for damage done by a Shor Tam to Hekdesh, he pays 'Min ha'Aliyah' -- from Meitav -- and not just 'mi'Gufo.' However, the Acharonim (in Gitin 49a) point out that it seems from other Rishonim that when one's Shor Tam damages Hekdesh, one pays Nezek Shalem only 'mi'Gufo,' since the principle of 'Dayo' ('it suffices to learn...') stops a Kal va'Chomer from obligating a person to pay more for damage done by his Shor Tam to Hekdesh than he would have to pay for damage done by his Shor Tam to Hedyot.
</p><p>
(c) According to the 'Lishna Achrina' of Rashi (end of 6b), the Gemara is easily understood. The verse that obligates one to pay Meitav for damage done by Shen and Regel to Hedyot does not discuss damage done to Hekdesh (since it discusses only damage done to land, and Hekdesh does not own land, as explained in Insights to 6b). Therefore, although the verse does not say specifically 'Re'ehu,' one still would think that he is not obligated to pay for damage done to Hekdesh had the Kal va'Chomer not proved that one <i>is</i> obligated to pay Hekdesh, since Hekdesh is more severe than Hedyot (for when a Shor Tam damages Hekdesh, one must pay Nezek Shalem). This may be the reason why Rashi favors the 'Lishna Achrina,' as explained in the previous Insight.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, he may not receive any (Rif's 
               text - he may receive even more) gifts of the poor!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2 (Rabah):</font></b> Rather, (in Reuven's area), 
               land is worth more in Nisan, and less in Tishrei.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Everyone else waits until Nisan to sell. Reuven 
                    cannot wait, and he must sell now.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  The seasonal cheapening of land is never 
                    worse than half the value. (Land worth 200 in 
                    Nisan is worth at least 100 in Tishrei.)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Culmination of Abaye's answer):</font></b> The same applies 
               to damages. They should be paid with Idis, at the 
               current price;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the victim demands a larger quantity of 
                    Beinonis (Beraisa #2 calls this Shavah Kesef), 
                    the damager can stipulate that he receive it at 
                    the higher price of Nisan.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection (R. Acha bar Yakov):</font></b> If so, the victim has 
          the lower hand if he wants to collect Beinonis or 
          Ziburis!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Torah entitled him to Idis. You cannot say 
               that he has no right to demand Beinonis or Ziburis 
               (without suffering a loss)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Acha bar Yakov):</font></b> The proper comparison to Rabah's 
          law is regarding a creditor (to whom the Torah did not 
          give the greatest privileges of collection)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A loan should be paid from Beinonis (at the 
               current price);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the creditor requests a larger quantity of 
               Ziburis, the borrower can stipulate that he receive 
               it at the higher price of Nisan.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection (R. Acha brei d'Rav Ika):</font></b> If that is the law, 
          people will refrain from lending!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Creditors will complain 'had I not lent my money, 
               I could have bought land at today's cheap price. 
               Because I lent my money, must I now receive land at 
               the higher price of Nisan?!'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Acha brei d'Rav Ika):</font></b> The proper comparison to 
          Rabah's law is regarding a Kesuvah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Kesuvah should be paid from Ziburis;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If she requests a smaller quantity of Beinonis, 
               the husband (or orphans) can stipulate that she 
               receive it at the higher price of Nisan.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PAYMENT WITH IDIS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> The contradiction has not been resolved! 
          ('From the best of his field' connotes only Idis. A 
          Beraisa learned from 'he will return' that one may give 
          Shavah Kesef.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #3 (Rava):</font></b> Whatever the damager gives (land or 
          any kind of Metaltelim) must be Meitav (highest quality).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> It says 'from the best of his field'! (He 
          need not give Meitav from Metaltelim.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #4 (Rav Papa):</font></b> All Metaltelim are considered 
          Meitav. If they can't be sold here, they can be sold 
          elsewhere;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Land cannot be sold elsewhere. Therefore, one who 
               pays with land must give Idis, so it will be easy to 
               sell.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rav Shmuel bar Aba of Akronya):</font></b> Does the 
          determination of what is considered Idis depend on this 
          person's property, or the world standard?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Yishmael, one pays the Idis of 
               the victim. Clearly, it depends on his property.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The question is according to R. Akiva:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Does 'the best of his (the damager's) field' 
                    exclude the Idis of the victim (but it suffices 
                    to give Idis of the world standard)?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Or, does 'the best of his field' teach that 
                    he must give his own best?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (R. Aba):</font></b> 'From the best of his field' clearly 
          means his own best!
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN A CREDITOR DOES NOT GET BEINONIS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Beraisa #1):</font></b> If a man only has Idis, all 
          (damages, debts and Kesuvos) are collected from Idis;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he only has Beinonis, all collect from 
               Beinonis. If he only has Ziburis, all collect from 
               Ziburis.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he has all three qualities, victims collect 
               from Idis, creditors from Beinonis, and Kesuvos from 
               Ziburis.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he has (only) Idis and Beinonis, damages 
               collect from Idis, and debts and Kesuvos are 
               collected from Beinonis;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If he has Beinonis and Ziburis, damages and debts 
               are collected from Beinonis, and Kesuvos are 
               collected from Ziburis;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> If he has Idis and Ziburis, damages collect from 
               Idis, and debts and Kesuvos are collected from 
               Ziburis.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Summation of question):</font></b> When he has Beinonis and 
               Ziburis, why does a creditor get Beinonis? If it 
               depends on the person's land, his Beinonis is his 
               Idis, so the creditor should get Ziburis!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the borrower had Idis and sold it 
          (the creditor already had a lien on the Beinonis).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Also Rav Chisda gave this answer.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support (Beraisa #2):</font></b> If he has Beinonis and Ziburis, 
          damages are collected from Beinonis, debts and Kesuvos 
          are collected from Ziburis.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> This contradicts Beraisa #1!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> Beraisa #1 discusses when the borrower 
               had Idis and sold it. Beraisa #2 discusses when he 
               never had Idis.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #2:</font></b> In both Beraisos, he did not (have or) 
               sell Idis;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In Beraisa #1, his Beinonis was like world Idis. 
                    In Beraisa #2, it is not.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #3:</font></b> In both Beraisos, his Beinonis is not 
               like world Idis;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The first Tana (of Beraisa #1) holds it depends 
                    on his land. Tana #2 holds that it depends on 
                    the world standard.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #4 (Ravina):</font></b> The Beraisos argue about 
               Ula's law.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Ula):</font></b> Mid'Oraisa, a creditor collects Ziburis. 
                    'You will stand outside, and the borrower will 
                    give to you a security (from his house).' 
                    Surely, the borrower will give a low quality 
                    security!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Chachamim enacted that creditors collect 
                    Beinonis, lest people be reluctant to lend.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  Tana #1 holds like Ula. Tana #2 holds that 
                    no enactment was made.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>COLLECTING FROM BUYERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a debtor sold (Idis, Beinonis and 
          Ziburis) to one person, or to three people at the same 
          time, they are all are in place of the seller. (Victims, 
          creditors and ex-wives collect from what they are 
          entitled to, i.e. Idis, Beinonis and Ziburis, 
          respectively.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they bought at different times, all collect 
               from the last buyer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If after collecting all his land there are still 
               debts, they collect from the previous buyer. When 
               his land is finished, they collect from the previous 
               buyer.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case in which one person bought 
          all the land?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He bought all three lands at the same 
               time.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> When three people bought (on the same 
               day), it is possible that they bought at different 
               times on that day, still we say that they are all in 
               place of the seller;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  When one person bought all the property, we need 
                    not teach that he is in place of the seller!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, he bought at three different times.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> When three people bought at different times, 
          all collect from the last. Surely, this is because the 
          previous buyers can say 'I left you room to collect from 
          (the seller. I.e., when I bought, he still had other 
          land. You must collect that other land before you can 
          take my property)';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also one person can say 'I first bought the Idis 
               and Beinonis, leaving you room to collect from the 
               Ziburis!'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the last land he bought was Idis.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, everyone should collect from Idis!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The buyer threatens them 'be satisfied with 
          what you are entitled to. If not, I will return the 
          document of sale of Ziburis to the seller, and you will 
          all collect Ziburis!'
<br>
<br>

sjt:
<font><b>1) LAND PURCHASED BY A SECOND BUYER FROM ONE WHO BOUGHT LAND FROM A BORROWER</b></font><b>
<br>QUESTIONS:</b> The Gemara teaches that when Reuven owes money to a lender and his property is Meshubad to that lender, and then he sells all of his fields to Shimon, and then <i>Levi</i> buys from Shimon the Idis and Ziburis fields, the lender may not collect his debt (owed to him by Reuven) from Reuven's Idis and Ziburis fields that are now in Levi's possession. The reason is that Levi may claim that he was particularly careful to purchase only the Idis and Ziburis and not the Beinonis -- from which the Malveh normally collects -- because 'I did not want to be responsible for the lien on the property.' Therefore, the Malveh must collect his debt from the Beinonis land that is in the possession of Shimon, and not from the fields that Levi bought from Shimon.
</p><p>
There are a number of questions on this Gemara.
</p><p>
(a) Why does the Gemara not say that the reason why the Malveh must collect from the property in the hands of Shimon is that it is 'Bnei Chorin,' and the rule is that the Malveh may collect only from 'Bnei Chorin' and not from 'Meshubadim' (he must collect from property that was not sold instead of collecting from property that was sold)? (<b>TOSFOS</b> DH Ratzah)
</p><p>
(b) Aside from the fact that the property in the hands of Shimon is 'Bnei Chorin' compared with the property in the hands of Levi, the Malveh should collect from Shimon because the Malveh's Shibud is on the Beinonis land and not on the Idis or Ziburis! Why does Levi need to present an argument that he was careful not to purchase the Beinonis and therefore the Shibud cannot be collected from his fields? He should simply say that there is no Shibud on the lands that he purchased. (<b>TOSFOS</b> DH Aval)
</p><p>
(c) If there is some reason for why the two arguments mentioned above do not apply in this case, then what is the logic of the argument presented by the Gemara to explain why the Malveh cannot collect from Levi? What is the difference if Levi was careful to avoid Beinonis or not? If there is a Shibud on the land he purchased (because the arguments mentioned above do not apply), the Malveh should be able to collect from the fields of Levi whether or not Levi wanted the Shibud to be on his property! The Shibud is already on the land; Levi's intentions at the time of the Kinyan should not affect the Shibud. (<b>NACHALAS DAVID</b>; see <b>SHITAH MEKUBETZES</b> to Kesuvos 92a, in the name of <b>TALMIDEI RABEINU YONAH</b>.)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> explains that the rule of collecting from 'Bnei Chorin' applies only to property that was never sold and is still in the hands of the borrower. Once property is sold it is no longer called 'Bnei Chorin,' even in comparison to land that was sold a second time. Therefore, the Malveh has the right to collect from Levi just as he has the right to collect from Shimon.
</p><p>
(b) <b>TOSFOS</b> explains that the Shibud on land for a debt applies not only to Beinonis, but to land of lower quality (Ziburis) as well. If the Malveh insists that he prefers to receive Ziburis rather than Beinonis, he may take Ziburis, as the Gemara says earlier (7b). Accordingly, the Malveh would have been able to collect the Ziburis which Levi bought if not for the fact that Levi may present the argument recorded in the Gemara (that he went out of his way not to purchase Beinonis so that the Malveh would not be able to collect from him).
</p><p>
Although Tosfos' opinion is accepted by most of the Rishonim, the Rosh here disagrees and rules that the Malveh is not entitled to choose between Beinonis and Ziburis; the borrower may insist on paying Beinonis and keeping the Ziburis. According to the Rosh, the question returns: why does the second buyer need to say that he was careful not to purchase Beinonis? Let him say that the Malveh has no right to collect from Ziburis from the first buyer (Shimon), and therefore the second buyer (Levi) may say that he purchased from Shimon all of the rights that Shimon had, and thus Levi has the right to refuse to pay Ziburis!
</p><p>
The <b>NACHALAS DAVID</b> answers that when the buyer does something to show that he is not interested in Ziburis, the Malveh may force him to pay with Ziburis even according to the Rosh. Since the first buyer sold the Ziburis, he has done an action showing his lack of interest in it, and therefore he no longer may force the Malveh to collect Beinonis. Since the first buyer cannot force the Malveh to collect Beinonis, if the second buyer's rights are based on those of the first buyer, he also cannot force the Malveh to collect Beinonis. That is why Levi needs a new argument.
</p><p>
Others explain that according to the Rosh, the case of the Gemara is where the Malveh has no option to collect from the Beinonis of the first buyer, either because the land was washed away or because the first buyer never had any Beinonis -- even though the second buyer <i>thought</i> that he was leaving behind Beinonis. (See <b>TOSFOS</b> DH Aval, and <b>RAMBAN</b> to Kesuvos 92a.)
</p><p>
(c) What difference, though, does Levi's intention make? The Shibud takes effect on the land because 'the property of a person serves as his guarantor (Arev)' (Rashi, Bava Metzia 67b, DH Ein Ba'al Chov). Accordingly, the intention of Levi when he buys the fields from Shimon should not be able to remove the Shibud from the property!
</p><p>
1. The <b>NACHALAS DAVID</b> answers that when Levi avoids buying Beinonis from Shimon, the rule that a Malveh cannot collect from 'Meshubadim' when there are 'Bnei Chorin' applies. As long as Shimon still has land that was not sold, it is considered 'Bnei Chorin' with regard to Levi and the Malveh must collect from that land and not from the Ziburis in the possession of the second buyer (Levi).
</p><p>
How can this be reconciled with what the principle mentioned earlier (in (a) above), that land that is in the hands of the first buyer is not called 'Bnei Chorin,' and therefore if the second buyer buys Beinonis the Malveh may collect from him? The Nachalas David explains that the land of the first buyer is not true 'Bnei Chorin,' but is similar to 'Bnei Chorin,' and therefore the Malveh is allowed to collect from Levi only when Levi knowingly bought land that was reserved for the Malveh.
</p><p>
The Nachalas David's approach is easier to understand according to the opinion of <b>RAV HAI GA'ON</b> and <b>RASHI</b>, as explained by the Shitah Mekubetzes in Kesuvos (92a). They rule that since the first buyer purchased all of the property of the borrower, he takes the place of the borrower with regard to collecting the loan. Rav Hai Ga'on rules for this reason that if the first buyer bought Idis and Beinonis from the borrower and sold Beinonis to a second buyer, the Malveh may choose to collect from the Idis which is in the hands of the first buyer, just as he may collect from 'Bnei Chorin' if the Loveh would still have property left unsold. Clearly, Rav Hai Ga'on treats the property of the first buyer as though it were 'Bnei Chorin.' 
</p><p>
2. The <b>RITVA</b> (Kesuvos 92a) writes that although the Malveh usually may defer the Takanah that entitles him to collect Beinonis and choose to collect Ziburis instead -- since the Takanah was made solely for his benefit in the first place, nevertheless he may not do so at the expense of the second buyer. When all of the property is in the hands of the first buyer, he may defer the Takanah since the first buyer bought all of the property of the borrower knowing that the Malveh will come to him to collect the debt. The second buyer, however, did not expect the Malveh to be interested in the Ziburis, since creditors almost always prefer to collect Beinonis. Since he did not anticipate that the Malveh would want Ziburis, the Malveh cannot collect from his Ziburis.
</p><p>
It is not completely clear why the rights of the Malveh are compromised by what the second buyer anticipated. It seems that the Chachamim did not want their Takanah to cause a loss to an unsuspecting second buyer, and therefore they revoked the rights of the Malveh to collect from Ziburis in this case. This is similar to the Takanah d'Rabanan not to collect a 'Milvah Al Peh' from land that buyers purchased from the borrower (see Bava Basra 175b), according to the opinion that 'Shibuda d'Oraisa'; the Chachamim did not want the unsuspecting purchasers to lose their property to the seller's creditor, and therefore they revoked the Malveh's rights to collect from that property.
</p><p>


<font><b>2) ARGUING A CASE IN COURT ON BEHALF OF SOMEONE ELSE</b></font><b>
<br>QUESTION:</b> The Gemara says that if Reuven sells a field to Shimon with Achrayos, and then Reuven's creditor comes and tries to take the field from Shimon, <i>Reuven</i> may defend Shimon's case in court in order to stop the Malveh from collecting the land from Shimon, since Shimon's loss ultimately will affect Reuven.
</p><p>
What difference does it make whether Reuven comes to court or not? If there is a valid claim which can prevent the Malveh from collecting, why does Shimon not use that claim himself, without bringing Reuven to court? (Reuven could always tell Shimon the claim out of court and let Shimon make the claim himself in court.)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> here (and in Kesuvos and Bava Metzia) explains that the reason why Reuven would have to come to court is that he has a claim of <i>certainty</i> ('Bari') that he makes against the Malveh's Shtar. Shimon, who does not know the details first-hand, at best can make only a tentative claim ('Shema') and say, 'I <i>think</i> that the Shtar is not valid (because Reuven paid you or because you owed money to Reuven for some other reason and therefore the debts canceled each other out).' A claim of 'Shema' has no validity against the Shtar. Reuven, in contrast, presents a claim of certainty ('Ta'anas Vadai') which carries weight against the Shtar because the Rabanan instituted a Shevu'as Heses whenever someone challenges a claimant who has a 'Ta'anas Vadai.' Therefore, only Reuven can cause the Malveh to swear a Shevu'as Heses in court.
</p><p>
<b>TOSFOS RABEINU PERETZ</b> asks what difference does it make if Reuven can cause the Malveh to swear a Shevu'as Heses? The Malveh must swear to <i>Shimon</i>, anyway, before he collects from him, because the Rabanan instituted another Shevu'ah which requires anyone who collects a debt from Yesomim or Lekuchos to swear that he was not paid already for the debt. (The Rabanan enacted that Beis Din speaks up for the Lekuchos, who are not expected to know how to counter the claim.)
</p><p>
<b>TOSFOS</b> in Kesuvos (92b) answers that the difference which Rashi gives for when Reuven makes the claim instead of Shimon (i.e. the ability to make the Malveh swear a Shevu'as Heses) applies where Shimon pardoned to the Malveh the Shevu'ah of Lekuchos. In such a case, only Reuven can make the Malveh swear through a 'Ta'anas Vadai' and a Shevu'as Heses.
</p><p>
(b) <b>TOSFOS</b> himself explains that the difference might be in a case in which Shimon announces in court that he has no evidence to disprove the claim of the Malveh. If afterwards he changes his mind and tries to bring testimony, Beis Din may not accept it (Sanhedrin 31a). Reuven, who never announced that he had no witnesses, may still bring witnesses to court to disprove the Malveh.
</p><p>
(c) The <b>RASHBA</b> and <b>NIMUKEI YOSEF</b> explain that Shimon might need Reuven to make the claim for him in court because of a case in which the land that Shimon bought is an Apotiki for the loan. The Halachah is that a buyer cannot redeem land that is an Apotiki for a loan; the Malveh is entitled the take the land itself. The borrower, however, may redeem the Apotiki by paying back, with money, the loan that he received, and thereby prevent the Malveh from collecting the Apotiki. Therefore, if Reuven comes to court and says that he will pay back the loan to the Malveh, he can prevent Shimon from losing the property.
</p><p>
However, if this is the case, then why is Reuven, the borrower, permitted to become involved in the case for the benefit of Shimon? Reuven is permitted to become involved only if Shimon's loss affects Reuven, since Reuven will need to reimburse Shimon if he loses the land. If Reuven agrees to pay the loan, it should make no difference to him whether Shimon wins the case or the Malveh wins; in either case he will have to pay someone back (either the Malveh or Shimon)!
</p><p>
They answer that Reuven still stands to benefit by preventing Shimon's land from being seized. When the Malveh collects the land as repayment for his loan, he prices the land at the value it was worth at the time Shimon purchased it. If it naturally rose in value (without Shimon investing anything into it) before the time the Malveh confiscates it from Shimon, the Malveh keeps the rise in value. Shimon, however, may claim from Reuven, the borrower, <i>full</i> reimbursement of his loss, including the increase in the land's value. Therefore, if Shimon loses his field, Reuven will have to pay <i>more</i> than he would have to pay if merely pays back the original loan.
</p><p>
(d) <b>TOSFOS</b> (Bava Metzia 14a) suggests that there would be a difference in the case of a Gilgul Shevu'ah. If the Malveh needs to make a Shevu'ah d'Oraisa to Reuven, the borrower, because of a different dispute they have, Reuven may demand that the Malveh make a Shevu'ah <i>d'Oraisa</i> that he did not yet receive the loan repayment through the Halachah d'Oraisa of 'Gilgul Shevu'ah.' This will make the Shevu'ah more severe than a Shevu'ah d'Rabanan, and therefore it is to Shimon's benefit for Reuven to come to court.
</p><p>
The <b>ME'IRI</b> cites others who suggest, in a similar vein, that the practical difference would be in a case in which Reuven has other claims for which he wants to make the Malveh swear. If Reuven represents this case for Shimon, he may make the Malveh swear to his other claims as well through the Halachah of Gilgul Shevu'ah (d'Rabanan). (According to the Me'iri, Reuven comes to court for his own benefit, and not for Shimon's benefit as the Gemara implies.)
</p><p>
(e) <b>TOSFOS RABEINU PERETZ</b> and <b>TOSFOS</b> (in Bava Metzia, in another answer) explain that it is beneficial for Reuven to come to court simply because he is more knowledgeable than Shimon and he might think of a claim that Shimon would not have thought to claim. Why, though, does Reuven need to come to court? Let Reuven simply make suggestions to Shimon and Shimon can make the claims for himself!
</p><p>
Perhaps the court would not let Reuven advise Shimon in the middle of the case, because the Mishnah in Avos (1:8; cited in Kesuvos 52b) teaches that a person should not act like 'Orchei ha'Dayanim.'
</p><p>
Tosfos here suggests further that a person may insist that his opponent come with him to a greater Beis Din. If Reuven has the strength to go to a greater Beis Din but Shimon does not have the strength, Reuven may insist that the Malveh go with him to a greater Beis Din.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, he can also threaten the victim (to 
          accept Beinonis). Why does the victim get Idis?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the seller died. Orphans have no 
          Mitzvah to pay their father's obligation (from their own 
          property. Even if the buyer will return the Ziburis, this 
          is like land the orphans bought, so the victim does not 
          collect from it.) The victim's lien is against the buyer.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection:</font></b> This is no reason why he cannot threaten the 
          victim!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (to Question (f)):</font></b> Rather, the buyer tells 
          them 'we do not collect from Meshu'abadim when there are 
          Bnei Chorin. This is an enactment to help the buyer. I do 
          not want the enactment!'
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	This is like Rava taught (elsewhere).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> If one says 'I don't want the enactment 
               that Chachamim made to help me' in a case like this, 
               this claim is accepted.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> To which case does Rava refer?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> He discusses Rav Huna's law, that a woman 
               can tell her husband 'do not feed me, and I will not 
               work for you.' (Chachamim enacted for her sake that 
               she works for her husband, and he feeds her.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	If Levi bought all three lands (Idis was the last), and 
          sold the Beinonis and Ziburis, clearly, everyone collects 
          from Idis. This is because they have a lien on it, and he 
          cannot give to them Beinonis or Ziburis in its place;
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> If he sold only the Idis, what is the law?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> Everyone collects from Idis.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> The first seller sold all rights he 
          had to the property. If Levi still had all the property, 
          he could tell (the creditors and ex-wives) to collect 
          from Beinonis and Ziburis, even though he bought the Idis 
          last;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He can say 'I don't want the enactment that we do 
               not collect from Meshu'abadim when the debtor still 
               has land' (for this would entitle them to collect 
               the Idis).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Also Levi sold all rights he had to the property, 
               which includes the right to say that the enactment 
               does not apply (so debts and Kesuvos will be 
               collected from Beinonis and Ziburis.)
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Implied answer #2 - Rava):</font></b> Everyone collects like 
          their normal law.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven sold all his fields to Shimon, and 
          Shimon sold one field to Levi, Reuven's creditor may 
          choose to collect from Shimon or Levi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if Shimon sold Beinonis. If he sold 
               Idis or Ziburis, Levi can say 'I was careful to buy 
               land you can collect from.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Also, this is only when Levi bought all the 
               Beinonis. If not, he can say, I left you room to 
               collect from Shimon.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Version #1 (Abaye):</font></b> If Reuven sold land to Shimon with 
          Achrayus (responsibility to compensate him if it is taken 
          away), and Reuven's creditor Levi collected it, Reuven 
          can take Levi to Beis Din (if he says that Levi was not 
          entitled to take it);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Levi cannot say, you have no claim against me 
               (only Shimon does), because Shimon will force Reuven 
               to compensate him.
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Version #2:</font></b> Even if Reuven sold to Shimon without 
          Achrayus, Reuven can take Levi to Beis Din.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven can say, I don't want Shimon to have 
               complaints against me (that I caused him a loss).
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ACHRAYUS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Abaye):</font></b> If Reuven sold land to Shimon without 
          Achrayus, and others protested, claiming that it is 
          theirs:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Before Shimon makes a Chazakah, he can retract 
               from the purchase. After making a Chazakah, he 
               cannot.
<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> Reuven can say 'you knew that you were taking a 
          chance.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is considered a Chazakah (regarding this 
          law)?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> It is when he walks around the borders.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #1:</font></b> This applies only if Shimon bought without 
          Achrayus. If he bought with Achrayus, he can retract.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #2:</font></b> Even if he bought with Achrayus, Reuven can 
          say 'when they legally take it from you, I will return 
          your money.'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THINGS WORTH MONEY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> Damages are paid with money or Idis.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Nachman - Beraisa):</font></b> 'He will return' 
          teaches that (anything) worth money may be given, even 
          bran.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa discusses when the damager has no 
          money or land.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If so, surely he may pay with anything!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that he must sell his 
          things so that he can pay with money. The Beraisa teaches 
          that this is not so.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Asi):</font></b> Money is like land.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What did Rav Asi come to teach?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He teaches that a damager may pay 
               with money or Idis.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rejection:</font></b> This is what Rav Huna taught!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, two brothers divided an inheritance. 
          Reuven took land, and Shimon took money. A creditor (of 
          the father) took the land. Shimon must compensate Reuven 
          him with money equal to half the value of the land taken.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #1 - Objection:</font></b> This is obvious. Surely, both 
          brothers must pay the debt!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Version #2 - Objection:</font></b> Shimon need not compensate him. 
          He can say 'I took money, knowing that you would not 
          compensate me if it were stolen;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Likewise, you knew that if a creditor would 
               collect the land, I would not compensate you!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, two brothers divided an inheritance. 
          A creditor took Reuven's portion. (Shimon may compensate 
          him with money or land.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection:</font></b> Rav Asi already taught this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If two brothers divided an inheritance, 
               and a creditor took Reuven's portion, the division 
               is nullified.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> Reuven is not compensated.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Asi):</font></b> Reuven receives a fourth of the value 
               (of what he lost) in money, v'Revi'a (and/or a 
               fourth) in land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rav says that the division is nullified. He holds 
                    that brothers who divided are like heirs. (They 
                    make a new division on what remains).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Shmuel says that Reuven is not compensated. 
                    He holds that brothers who divided are like 
                    buyers (without Achrayus).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Version #1:</font></b> Rav Asi says that Reuven 
                    receives a fourth in money or a fourth in land. 
                    He is unsure whether brothers are like heirs or 
                    like buyers (without Achrayus).
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'>  Version #2:</font></b> Rav Asi says that Reuven 
                    receives a fourth in money and a fourth in 
                    land. He is unsure whether brothers are like 
                    heirs or like buyers (with Achrayus).)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #3:</font></b> Rav Asi taught that a damager may pay with 
          money or Idis.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> That is what Rav Huna taught!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, it should say 'Rav Asi also taught...'
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>BEAUTIFYING MITZVOS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Zeira):</font></b> One must spend up to a third for Mitzvos.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br>
<br>

sjt:
<font><b>1) PAYING FOR DAMAGES WITH 'KESEF,' 'SHAVEH KESEF,' OR 'MEITAV SADEHU'</b></font><b>
<br>QUESTION:</b> Rashi explains that Rav Huna answers the question of Abaye earlier (7a), who asks about the apparent contradiction between the verse which permits a Mazik to pay for damages with <i>Kesef</i> (money) and the verse which requires that one pay with 'Meitav Sadehu' (the highest quality of land). Rav Huna answers that the verse means that the Mazik may pay either with Kesef or with Meitav Sadehu. It is not necessary to pay exclusively with land.
</p><p>
Rav Nachman asks that this does not answer the question of Abaye. The verse teaches that one may pay not only with Kesef but with <i>Shaveh Kesef</i> (any item of value). Why, then, does the Torah write that one must pay with Meitav Sadehu, implying that one must pay with land (or Kesef, which is considered like land), when one may pay even with Shaveh Kesef?
</p><p>
Rav Huna answers that Shaveh Kesef may be used only if the Mazik has no land or Kesef. One might have thought that the Mazik must sell his Shaveh Kesef in order to pay with Kesef or land. Therefore, the verse teaches that 'Shaveh Kesef' is like 'Kesef' and he does not have to sell his items of Shaveh Kesef in order to obtain Kesef or land.
</p><p>
What did Rav Huna mean when he answered originally 'either Kesef or Meitav'? The question of Abaye was not that the verse which allows payment of Kesef contradicts the verse of Meitav Sadehu, but that the verse that allows payment of <i>Subin</i> (Shaveh Kesef) contradicts the verse that requires payment with Meitav Sadehu! (See <b>NACHALAS DAVID</b>.)
</p><p>
<b>ANSWER:</b> The answer is that Rav Huna never intended that his statement 'Kesef or Meitav' be an answer to Abaye's question. The answer that he suggested was that one may use Subin only when one has no Kesef or land with which to pay. The statement of 'Kesef or Meitav' was necessary as an introduction to his answer, as follows.
</p><p>
One might have thought that the Torah requires a person to pay with Meitav of land even if he has Kesef with which he can pay, because land is considered a better form of payment (since it cannot easily be lost or destroyed). However, if this is true, the verse would not need to say that if one does not have land, he may pay with Kesef or with Shaveh Kesef. There would be no reason to assume that a person must purchase land with his Kesef or Shaveh Kesef in order to pay with land. One would not have considered that a possibility since it is not in his control to successfully persuade another person to sell land to him; perhaps he will find no one who wants to sell him land. Therefore, it certainly is preferable to pay with whatever he has rather than to wait for someone to sell him land.
</p><p>
However, now that Rav Huna emphasizes that Kesef is an equally acceptable form of payment as land, one might have considered the possibility that if the Mazik has neither Kesef nor land he may not pay with Shaveh Kesef but rather he must sell it and pay with the Kesef that he receives in exchange, since it is always possible to bring an item of value to the marketplace and receive money in return for it. Therefore, since payment of money is the best form of payment, it is necessary for the Torah to teach that payment of Shaveh Kesef is also acceptable. (M. Kornfeld)
</p><p>


<font><b>2) HALACHAH: 'MEITAV'</b></font><b>
<br>OPINIONS:</b> Rav Huna explains that Shaveh Kesef may be used to pay for damages only when the person has no land or Kesef. This appears to contradict the ruling of Rav Papa and Rav Huna brei d'Rav Yehoshua (7b) who rule that every form of Shaveh Kesef (except for land) is considered 'Meitav' and is as equally valid as Kesef as a form of payment. According to Rav Papa, it seems that a person may pay with Shaveh Kesef even if he has Kesef or land. What is the Halachah?
</p><p>
(a) The <b>RIF</b> and <b>ROSH</b> rule like Rav Papa, who says that one may always pay with Shaveh Kesef. The Rosh cites two reasons to justify this ruling. First, Rav Papa lived after Rav Huna, and therefore he is a later authority ('Basra') and the Halachah always follows the later Amora. Second, the Gemara later (10a) teaches that if a person wants he may pay for someone's ox that his ox killed with the flesh of dead oxen. The Gemara implies that even if one has Kesef, he may still pay with dead oxen (Shaveh Kesef). As the <b>NIMUKEI YOSEF</b> points out, most Rishonim follow this ruling.
</p><p>
(b) <b>RABEINU TAM</b> (cited by Tosfos DH Rav Huna) rules like Rav Huna. Why does he not rule like Rav Papa, who is the later Amora? The <b>ROSH</b> suggests that perhaps Rabeinu Tam rules like Rav Huna because the Gemara places his statement after Rav Papa's, implying that Rav Huna's is the conclusive ruling. Alternatively, perhaps Rabeinu Tam understands that Rav Huna and Rav Papa are not arguing with each other (see Tosfos). Rather, Rav Papa -- who says that all Shaveh Kesef is considered Meitav -- is explaining why a person does not have to pay with the <i>best</i> Subin that he has when he has no Kesef. He explains that when it comes to Shaveh Kesef, there is no significant difference between the best quality and the worst quality of a product. However, Shaveh Kesef is certainly less desirable than Kesef or land, and, therefore, if the Mazik has Kesef or land, the Torah requires that he pay with the Kesef or land and not with Shaveh Kesef.
</p><p>
(c) <b>RASHI</b> in Gitin (48b, DH Min ha'Idis, and 49a, DH Hacha b'Mai Askinan) writes that if a person has Kesef he may not pay with land (and certainly not with Shaveh Kesef). It is only when he has no Kesef that he may pay with land (or with Shaveh Kesef). The <b>NIMUKEI YOSEF</b> here quotes a similar ruling in the name of the <b>RAMAH</b>.
</p><p>
However, this ruling seems to contradict the statements of both Rav Huna and Rav Papa. (See <b>RASHASH</b> in Gitin.)
</p><p>
It seems that Rashi and the Ramah rule like Rav Papa. They maintain, however, that all of the Amora'im -- except for Rav Huna -- consider Kesef to be a better form of payment than land. Rav Huna is the one who suggests that one may pay with Kesef or with land, and that they are equal forms of payment. Accordingly, Rav Papa (7b) merely explains the reason for why a person who has no Kesef may pay with either Meitav Sadehu or with any quality of Shaveh Kesef. He explains that it is not necessary to pay with Meitav (the highest quality) of Shaveh Kesef since all Shaveh Kesef, aside for land, is considered Meitav. However, neither Shaveh Kesef nor Meitav of land is considered as preferable a payment as Kesef.
</p><p>
Rashi here does not seem to understand Rav Papa in this way. In a number of places he implies that it is the <i>Mazik's</i> decision whether to pay with land or with any other form of payment (2b, DH b'Meitav; 5a, DH Tachas Nesinah; 6b, DH Lo Ba). This is especially clear from Rashi earlier (7a, DH mi'Da'ato), where he explains that according to the Havah Amina of the Gemara, if the Mazik troubles the Nizak to bring him to Beis Din in order to collect compensation for the damages, the Mazik may not pay with Shaveh Kesef but rather he must pay with <i>Kesef</i>. As the <b>RASHASH</b> points out, Rashi should have written that he must pay with '<i>Meitav</i> [Karka]' (since the Gemara was trying to resolve a contradiction between the verse that allows payment with Shaveh Kesef and the verse that requires payment with 'Meitav Sadehu'; some manuscripts actually have the word 'Meitav' in the text of Rashi, instead of the word 'Kesef'). It seems that Rashi considers Meitav Karka and Kesef to be equal forms of payment, and the only question of the Gemara is whether Shaveh Kesef is an equally valid form of payment (according to Rav Papa it is an equally valid form of payment, and according to Rav Huna it is not). 
</p><p>

<b>HALACHAH:</b> The <b>TUR</b> (CM 419) and the <b>RAMBAM</b> (Hilchos Nizkei Mamon 8:10) rule like the <b>ROSH</b> and <b>RIF</b>, that a Mazik may pay with Shaveh Kesef if he prefers.
</p><p>
However, the Rambam and Tur add an ambiguous statement that 'if the Mazik has Shaveh Kesef, Beis Din does not confiscate his land for the payment of the damage.' The Acharonim differ over the interpretation of this statement.
</p><p>
The <b>BEIS YOSEF</b> infers from this statement that the Rambam rules that payment of Kesef or Shaveh Kesef is preferable to payment of Meitav Karka (this is the opposite of the way Rabeinu Tam rules). This is also the understanding of the <b>SHACH</b> (CM 419:2) and the <b>NIMUKEI YOSEF</b> (Bava Basra 92a) cited by the Shach. The Shach finds a source for this ruling in the Gemara later (14a), which implies that Shaveh Kesef is an equally acceptable form of payment as Kesef, while Karka is not. 
</p><p>
The Shach and the <b>VILNA GA'ON</b> add that the Rambam might have understood this to be the intention of Rav Huna in the Gemara here as well. Rav Huna, who says 'Kesef or Meitav,' means that one may pay with Kesef, and if <i>he does not have Kesef</i> he may pay with Karka. The Gemara asks that Shaveh Kesef is also as valid a form of payment as Kesef. It answers that Shaveh Kesef is as good as Kesef, and only when the Mazik has no Kesef or Shaveh Kesef is he allowed to pay with Karka. 
</p><p>
According to this way of understanding Rav Huna's statement, Rav Huna does not argue with Rav Papa. Both agree that Shaveh Kesef is considered like Kesef. (According to this interpretation, it is not clear how Rav Asi's statement that Kesef is like Karka is in agreement with Rav Huna, as the following Sugya asserts. See <b>NACHALAS DAVID</b>.)
</p><p>
Other Acharonim explain the words of the Tur and Rambam differently. They explain that the Tur and Rambam simply mean that the Mazik may choose to pay with whatever form of payment he prefers. They assume that the Mazik would not want to part with his land if he can use some other form of payment, and therefore they write that Beis Din cannot confiscate the Mazik's land against his will unless he has no other means with which to pay for the damage. (See <b>BACH</b> in the name of the <b>MAGID MISHNEH</b>, <b>ME'IRI</b> here, and <b>SEFER ME'IRAS EINAYIM</b>. The <b>VILNA GA'ON</b> infers from a slight difference of wording between the Rambam and the Tur that the Rambam rules the first way (like the Beis Yosef), and that the Tur rules the second way (like the Bach).)
</p><p>
According to this interpretation, the Rambam is in agreement with the Rif, and the Mazik may choose any form of payment he prefers.
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> One must spend a third of his wealth 
               to fulfill a Mitzvah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> It is unreasonable that if one 
               encounters three (expensive) Mitzvos, he must 
               exhaust all his wealth!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Correction (R. Zeira):</font></b> One must spend an extra third to 
          beautify a Mitzvah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> Is this a third of what the plain 
          Mitzvah costs, or a third of the beautified Mitzvah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This question is unresolved.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Chachamim of Eretz Yisrael, citing R. Zeira):</font></b> Up to an 
          extra third, one spends his own money to beautify a 
          Mitzvah. Above a third, Hash-m returns the money to him 
          (in this world).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>GENERAL RULES OF DAMAGES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Anything that a man must guard, he must pay 
          if it damages;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Anything for which he must pay some of the damage 
               it causes, he is responsible for all the damage.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(There is compensation for the following, if they are 
          damaged):</font></b> property to which Me'ilah does not apply; 
          property of members of the covenant; owned property.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	(One must pay for damage) in any place, except for the 
          premises of the damager, or the joint property of the 
          damager and victim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	When one damages, he must pay with Idis.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> Anything a man must guard, he must 
          pay if it damages.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven handed over an ox or pit to a Cheresh 
               (deaf-mute), lunatic or child, and the ox or pit 
               damaged, Reuven must pay. This is not true regarding 
               fire.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The ox is tied up and the pit is 
               covered. The corresponding case of fire is 
               (entrusting a Cheresh, lunatic or child with) a 
               coal.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, Reuven should be exempt in all 
               cases!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, the ox is loose and the pit is 
          uncovered. The corresponding case of fire is a flame.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection:</font></b> If so, why is Reuven exempt for fire?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> (A Mishnah teaches that if Reuven 
               sent a fire with a Cheresh, lunatic or child, and 
               the fire damaged, Beis Din cannot make Reuven pay.) 
               This is only if he sent a coal;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he sent a flame, Beis Din forces Reuven to 
               pay, because a flame is likely to damage.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, the ox is tied up and the pit is 
          covered. The case of fire is a coal.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven is liable if the ox or pit damage, for 
               oxen break loose on their own, and pits become 
               uncovered by themselves, but a coal dies out if left 
               to itself!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yochanan says, even if Reuven sent a flame 
          (with a Cheresh, lunatic or child) he is exempt. The 
          corresponding cases of an ox and pit are a loose ox and 
          an uncovered pit. Why is Reuven liable for the ox and pit 
          more than the flame?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Regarding the flame, we attribute the damage to 
          the way the Cheresh (or lunatic or child) held it. 
          (Regarding the ox or pit, the Cheresh did not cause the 
          damage.)
<br>

sjt:
<p>
<font><b>3) REWARDING A PERSON FOR SPENDING MONEY FOR A MITZVAH</b></font><b>
<br>QUESTION:</b> The Gemara teaches that one should spend up to a third of the value of a Mitzvah in order to beautify the Mitzvah (to make it more 'Mehudar'). The Gemara adds that in Eretz Yisrael they said that when a person spends up to a third, 'it is from his own,' and anything more than that 'is from Ha'Kadosh Baruch Hu.' This implies that a person will be rewarded if he spends more than a third for beautifying a Mitzvah, but not if he spends up to a third.
</p><p>
This is problematic, because if there is reward in this world for Mitzvos, then both should be rewarded in this world. If there is no reward in this world for Mitzvos, then neither one should be rewarded in this world. (See Kidushin 39b-40a.)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU CHANANEL</b> explains that 'from Ha'Kadosh Baruch Hu' has nothing to do with the reward that a person receives for beautifying a Mitzvah. Rather, it means that more than a third is voluntary, while up to a third is obligatory, and a person will be punished if he does not spend that much.
</p><p>
Alternatively, the Gemara means that a person should spend more than a third only if he sees that Hash-m has given him enough money to do so. He is not allowed to take money out of funds designated for his own needs if his funds are limited.
</p><p>
(b) The <b>RASHBA</b> writes that if a person spends more than a third for beautifying a Mitzvah, Hash-m will return to him the amount of money that he spends for the Mitzvah. The Rashba seems to refer to the Gemara in Beitzah (16a) which states that Hash-m repays a person for all of the money he spends for the needs of his Shabbos meals and for teaching Torah to his children. The Ritva there adds that this applies to money spent for any Mitzvah. Perhaps the Rashba learns that this applies only to money added to beautify a Mitzvah, and the Gemara cites the Se'udah of Shabbos and Talmud Torah as examples because a person often spends more than he needs for such Mitzvos.
</p><p>
(c) Neither <b>RASHI</b> nor <b>TOSFOS</b> seems to agree with these answers. Tosfos writes explicitly that a person 'will receive Peros in this world' for spending more than a third, implying that he will receive <i>reward</i> and not just <i>compensation</i>. The Acharonim explain that Rashi and Tosfos maintain that although a person does not receive reward for a Mitzvah in this world, he <i>does</i> receive reward for any efforts he expends in order to beautify a Mitzvah, and for the Zerizus that he expends in order to fulfill a Mitzvah. (See <b>LIKUTEI REBBI TZADOK HA'KOHEN</b>, end of <b>SEFER SICHAS MAL'ACHEI HA'SHARES</b>, p. 102; <b>KOL ELIYAHU</b> #16.) 
</p><p>


<font><b>4) ENTRUSTING A 'SHOR,' 'BOR,' OR 'ESH' WITH A 'CHERESH' TO GUARD</b></font><b>
<br>QUESTIONS:</b> A Beraisa teaches that a person who gives a Shor or Bor to a Cheresh, Shoteh, or Katan to guard is liable for any damage that it does. If he gives an Esh to a Cheresh, Shoteh, or Katan, he is exempt from any damages that result.
</p><p>
The Gemara asks what is the difference between a Shor or Bor and an Esh. Reish Lakish explains that the Beraisa is discussing a 'Gacheles,' an ember, when it refers to 'Esh,' and it is discussing a Shor that is tied up and a Bor that is covered. The reason why one is exempt for giving the Gacheles to a Cheresh, Shoteh, or Katan is because the Gacheles becomes extinguished by itself. <b>RASHI</b> explains that the Shor is prone to break out of the rope that holds it, and the cover of the Bor is prone to collapse if left unattended. Since the Cheresh is not capable of watching it properly so that it not cause damage, it is as if the owner left the Shor or Bor alone with no one to guard it, and therefore the owner is liable for any damage that it causes. In contrast, when a Gacheles is left alone and unguarded, it will become extinguished before it causes any damage, and therefore the owner is exempt.
</p><p>
Rebbi Yochanan argues with Reish Lakish and explains that the Esh for which one is exempt is a 'Shalheves,' a live flame, and the Shor and Bor are untied and uncovered, respectively. The reason why one is exempt for damage caused by the Shalheves is because 'the Cheresh's actions were involved.'
</p><p>
Rashi explains that the damage that the Shalheves caused was accomplished through the involvement of the Cheresh who brought the fire to the grain which it burned. The owner of the Esh is not liable because he did not cause the damage alone, but rather it was the Cheresh's contribution to the act that caused the damage. The Shor and Bor, on the other hand, which were left unguarded, caused damage without the involvement of the Cheresh.
</p><p>
There are a number of questions on this Sugya.
</p><p>
1. Why does Rashi write, in his explanation of Reish Lakish, that if one leaves a Bor covered he is liable for any damage caused by the cover collapsing? The Mishnah later (52a) states clearly that even if one digs a pit, it suffices to cover it with a strong cover, and one does not have to worry that it will cave in unexpectedly. (<b>TOSFOS</b> DH Shor)
</p><p>
2. According to Reish Lakish, why does the Beraisa say that one is liable for leaving a Shor or Bor in the hands of a Cheresh, Shoteh, or Katan, while one is exempt for leaving an Esh with him? The Beraisa should say simply that one is liable for leaving a Shor or Bor <i>unguarded</i>, while he is exempt if he leaves an Esh (Gacheles) unguarded since it will become extinguished before it causes damage, as Rashi himself writes later (10b, DH Peshita). (<b>RABEINU PERETZ</b>)
</p><p>
3. The Gemara later (59b), in which Rebbi Yochanan originally makes his statement that one is exempt when he leaves even a Shalheves with a Cheresh, says that Rebbi Yochanan agrees that one is liable for leaving an Esh in the hands of a Cheresh when he leaves a torch together with combustible material in the hands of the Cheresh, because in such a case it is clearly the owner's negligence (in leaving a flame and combustible material with the Cheresh) that causes the damage. In what way, though, is it more clear that his act caused the damage when he leaves combustible material with the fire? Even a flame, Shalheves, without fuel can cause damage when left alone, as Reish Lakish implies when he says that only a Gacheles, and not a Shalheves, can be left unguarded without fear that it will cause damage.
</p><p>
If Rebbi Yochanan disagrees with Reish Lakish on this point and maintains that a Shalheves will also become extinguished by itself, then he should compare a Shalheves, too, to a Bor that is covered and to a Shor that is tied up (just as Reish Lakish compares a Gacheles to such a Shor and Bor). (<b>TOSFOS</b> DH ul'Rebbi Yochanan)
</p><p>
<b>ANSWERS:</b>
<br>(a) According to Rashi, when Reish Lakish discusses a covered Bor and a bound Shor, he refers to a Bor that is covered with a weak covering and a Shor that is bound with a weak rope. The Mishnah exempts the owner only if he covers it with a proper, strong cover (<b>RA'AVAD</b>; see Tosfos). 
</p><p>
Why, then, does Reish Lakish mention that the Bor is covered at all, if a Bor with an insufficient cover is the same as Bor with no cover? He should compare the Gacheles to an uncovered pit, since a weak cover does not accomplish anything. (<b>RABEINU PERETZ</b>)
</p><p>
The answer is that Reish Lakish wants the Shor and Bor to be similar to a Gacheles. Although a Gacheles will soon become extinguished, it still can cause damage before it becomes extinguished. Nevertheless, since the time in which it can cause damage is limited, it is not expected to actually cause damage during that time. In this sense, the Gacheles can be compared to a Bor that is covered with a weak cover. There is a chance that the Bor will cause damage because the cover might cave in, but its damage is not certain to occur, in contrast to an uncovered Bor. The Beraisa is distinguishing between a partial protection in <i>quality</i> (in the case of Shor and Bor) and a partial protection in <i>quantity</i> (in the case of Esh, where it is considered guarded from the time that it becomes extinguished, and thus is not expected to do damage). The partial protection of a Shor and Bor is not sufficient protection to exempt the owner, because the possibility that it will do damage (by breaking loose from its rope, or by its cover caving in) is continual and will not come to an end (like a Gacheles, which will eventually become extinguished). 
</p><p>
The <b>GILYON</b> cited by the Shitah Mekubetzes answers the second question and explains why the Beraisa needs to mention that the owner gave his item to a Cheresh, Shoteh, or Katan altogether. The Beraisa wants to teach that even when one gives the Gacheles to a Cheresh, Shoteh, or Katan, he is exempt because he was not expected to assume that the Cheresh would take the fire and use it to cause damage. Although the Cheresh does not guard the flame, he normally does not use it to cause damage. Therefore, if he does cause damage with it, the owner is exempt. (See also <b>RASHI</b> DH Me'amya.)
</p><p>
With regard to the third question, according to Rashi it seems that the difference between a Shalheves and a torch with combustible material is that although the Shalheves, if left unguarded, will cause damage to anything that approaches it, nevertheless it cannot approach, on its own, property that is resting elsewhere. Therefore, if it causes damage to grain that is not adjacent to it, it can do so only through the help of the Cheresh. The owner is exempt because he had no reason to suspect the Cheresh of bringing the fire close to someone else's property. On the other hand, the case in which one is liable when he leaves a torch with combustible material in the hands of the Cheresh refers to a case in which the combustible material leads to the grain that was damaged. If the fire does damage, the owner is liable even if the Cheresh brought it to the grain, since the fire would have spread there by itself. (See <b>ME'IRI</b> (59b) in the name of 'Yesh Mefarshim.')
</p><p>
(Reish Lakish, on the other hand, maintains that even a Shalheves can damage property that is not near it, because flames tend to jump haphazardly. See <b>RABEINU YEHONASAN MI'LUNIL</b>, cited by the Shitah Mekubetzes (59b).) 
</p><p>
(b) <b>TOSFOS</b> takes a different approach to the Sugya. Tosfos explains that the cover of the Bor is a strong cover. Had he not given over the Bor to a Cheresh to guard, the owner would have been exempt. When he gives the Bor over to a Cheresh he is liable because the Cheresh is likely to remove the cover and cause damage with the Bor, since the Bor was entrusted to him. Thus, the owner was negligent in giving him the Bor to guard.
</p><p>
This answers the first two questions. Giving the Shor or Bor to a Cheresh is worse than leaving the Shor or Bor by itself.
</p><p>
Tosfos understands the difference between a Shalheves and a torch with combustible material to be that a Cheresh <i>is</i> able to guard a Shalheves but he is <i>not</i> able to guard a torch with combustible material. The Cheresh can provide only preventative protection by ensuring that no new element should cause the fire to do damage, but rather the fire should remain as it is. The Cheresh cannot provide active protection by stopping a fire that is already spreading (or a Shor which is untied, or a Bor which is uncovered and which will cause damage unless one covers it). (<b>TALMID RABEINU PERETZ</b> cited by the Shitah Mekubetzes)
</p><p>
This explains why Rebbi Yochanan compares a Shalheves to an open Bor; both are prone to do damage when not guarded. Nevertheless, one is exempt for damage caused by the Shalheves because the Cheresh is able to guard it. Therefore, if any damage that the Cheresh causes was unexpected, the owner is exempt from liability for the damage.
</p><p>
According to this approach, Rebbi Yochanan certainly would exempt the owner of a Shor that is tied and a Bor that is covered when he gives them to a Cheresh to watch. Rebbi Yochanan maintains that a Cheresh can even <i>guard</i> an easily-guarded item, and thus he certainly is not suspected of undoing the protection that is already in place (in contrast to the view of Reish Lakish).
</p><p>
The <b>RASHBA</b> offers a similar explanation for the Gemara. (However, it is possible that the Rashba exempts the owner of the Shalheves not because he may rely on the Cheresh to guard the flame, but because anytime the Cheresh involves himself in the damage that is caused, the owner is automatically exempt from liability.)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE STRINGENCIES OF EACH TYPE OF DAMAGER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> There are stringencies of an ox over a pit, 
          and vice-versa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Stringencies of an ox over a pit:</font></b> an ox pays 
               Kofer if it kills a person, and 30 Shekalim if it 
               kills a slave. One may not benefit from an ox 
               sentenced to be killed, and its nature is to move 
               and damage;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Stringencies of a pit over an ox:</font></b> a pit is prone 
               to damage from the beginning, and it is Mu'ad (pays 
               full damage) from the beginning.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	There are stringencies of an ox over a fire, and vice-
          versa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Stringencies of an ox over fire:</font></b> an ox pays 
               Kofer, and 30 Shekalim for a slave. One may not 
               benefit from an ox sentenced to be killed. One is 
               liable for handing over an ox to a Cheresh, lunatic 
               or child;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> The stringency of fire over an ox:</font></b> fire is Mu'ad 
               from the beginning.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	There are stringencies of fire over a pit, and vice-
          versa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Stringencies of a pit over fire:</font></b> a pit is prone 
               to damage from the beginning, and one is liable for 
               handing over a pit to a Cheresh, lunatic or child;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Stringencies of a fire over a pit:</font></b> its nature is 
               to move and damage, and it is liable even for things 
               unfitting for it to consume.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa should also teach that an ox is 
          liable for Kelim, but a pit is not!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The Beraisa is like R. Yehudah, who 
          obligates a pit also for Kelim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection (Seifa):</font></b> A fire is liable even for things 
          unfitting for it to consume, but a pit is not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is considered fit and unfit for a 
               fire to consume?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Wood is fit, and Kelim are unfit.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Since the Beraisa exempts a pit, it cannot be 
               like R. Yehudah!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, the Beraisa is like Chachamim. The 
          Beraisa did not list all the stringencies.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Defense of Answer #1:</font></b> Really, the Beraisa can be like 
          R. Yehudah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It obligates a fire even for things unfitting for 
               it to consume, i.e. scorching a plowed field or 
               rocks.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> The Beraisa should also teach that 
          an ox is liable for damaging blemished Korbanos, but a 
          pit is not!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Answer #2, the Beraisa is like 
               Chachamim. We can say that also this case was 
               omitted.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> However, according to the opinion that the 
               Beraisa is like R. Yehudah, the Beraisa would not 
               omit only one case. What else was omitted?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> It omits an ox that threshed in a plowed field 
          (this does not apply to a pit).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection:</font></b> That is included in 'its nature is to move 
          and damage'!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A PARTIAL DAMAGER THAT PAYS FULL DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One who is responsible for part of the 
          damage...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa #1):</font></b> One who is responsible for part of the 
          damage is responsible for all of the damage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case is, Reuven dug a nine Tefachim pit, and 
               Shimon completed it to 10 Tefachim. Shimon is 
               liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #1:</font></b> This is unlike Rebbi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> If Reuven dug a nine Tefachim pit, 
               and Shimon completed it to 10, Shimon is liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi says, Shimon is liable for death (if an 
               animal dies in the pit). Both are liable for damage.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> Our Mishnah (like Beraisa #1 explained) is 
          even like Rebbi. It refers to liability for death.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2 - Suggestion:</font></b> Our Mishnah is unlike Rebbi.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection (Rav Papa):</font></b> It is even like Rebbi. It refers 
          to liability for death. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> This is not the only case when one 
          responsible for part of the damage is responsible for all 
          of the damage!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one handed an ox over to five people, and one 
               of them (Reuven) was negligent (and left), and it 
               damaged, he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> If it cannot be guarded without 
                    Reuven, obviously, he is liable!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it could be guarded without 
               Reuven.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection:</font></b> If so, he is exempt! (We conclude that 
               R. Zeira's question is ill-founded. There is no 
               Chidush in his case that should be taught.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Sheshes):</font></b> The Mishnah should also teach 
          the case of adding fuel to a fire!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>
<br>

sjt:
<font><b>1) A 'BOR' WHICH DAMAGES FOOD ITEMS</b></font><b>
<br>QUESTION:</b> The Gemara says that the owner of a Bor is obligated for damages caused to items that are covered ('Nizkei Tamun'). <b>RASHI</b> (DH Shiyer) explains that this refers to a case in which a donkey falls into a Bor while carrying a sack full of grain. If the grain becomes ruined, the owner of the Bor is obligated to pay for it even though it was inside of a sack.
</p><p>
It seems from the words of Rashi that, normally, the owner of a Bor is <i>obligated</i> for damage done to food by his Bor. Although the Gemara (28b) derives from the verse that one is obligated for ''Chamor' (Shemos 21:33) v'Lo Kelim' -- one is not obligated to pay for damage done to Kelim that fall into his Bor -- this does not apply to food items, but only to Kelim.
</p><p>
<b>TOSFOS</b> (DH Shiyer) asks that the Gemara later (48b) implies that food <i>is</i> in the same category as Kelim, and the owner of a Bor is <i>exempt</i> from damage done to food. The Gemara there says that if a Bor spoils a person's water, the owner of the Bor is exempt because 'water is like Kelim' (see also Rashi there, DH u'Mayim Kelim). The Gemara must be referring to an <i>animal</i> that is inside of a sack that falls into a Bor, as Rashi explains later (26a, DH she'Ken Yeshno b'Bor). How will Rashi explain that Gemara?
</p><p>
<b>ANSWERS:</b>
<br>(a) According to the <b>MESHECH CHOCHMAH</b> cited earlier (see Insights to 4b), Rashi exempts the owner of a Bor that is ten or more Tefachim deep from damages done to a person (Nizkei Adam), because a person is not expected to fall into a Bor since he avoids potentially fatal obstacles. The owner of the Bor did not have to protect it from people falling into it. The Meshech Chochmah adds that the same logic might apply to the reason why the Torah exempts a Bor from Nizkei Kelim, damages done to Kelim. A person does not normally load his Kelim upon a donkey, lest the donkey stumble and the Kelim fall and break.
</p><p>
If this logic is correct, perhaps the Torah only exempts a person from damage caused to fragile or breakable Kelim, because people do not load them onto animals lest they break. However, people <i>do</i> load food upon animals, since food is not likely to become ruined if the animal stumbles. Even if the sack containing the food tears, the food itself can be washed and used. However, this applies only to solid food. Liquid food -- which requires a container when transported -- will become lost entirely if its container breaks, and therefore it is not usually loaded upon an animal. That is why the Gemara later (48b) writes with regard to damage caused by a Bor to water that it has the same Halachah as damaged caused by a Bor to Kelim. (M. Kornfeld)
</p><p>
(b) <b>RASHI</b> (3a) writes that the verse in the Torah discusses only a Bor that is ten Tefachim deep. As explained earlier (see Insights to 4b), the verse excludes damages caused to a person by a Bor only when the Bor is ten Tefachim deep. However, one is exempt for damages caused by his Bor to Kelim even if the Bor is less than ten Tefachim deep (see Gemara 53b). How can such damages be excluded from the verse, which is discussing a Bor that is ten Tefachim deep?
</p><p>
Perhaps there is a different reason for why a nine-Tefach Bor is exempt from Nizkei Kelim. It is exempt not because of the Mi'ut of the verse in the Torah (''Chamor' v'Lo Kelim') but because a nine-Tefach Bor is liable only for causing damages and not for causing death. Any damage that happens to a Kli is not considered damage but is considered Misah, the 'death' of the Kli (see <b>RASHI</b> to 28b, DH v'Chelim Peturin).
</p><p>
Hence, there might be a difference between a ten-Tefach Bor and a nine-Tefach Bor with regard to damage done to food. The Torah excludes a ten-Tefach Bor only from damage done to Kelim (''Chamor' v'Lo Kelim'). That is why Rashi here, who is discussing a ten-Tefach Bor like the Bor of the Mishnah, writes that the owner of the Bor is liable for damages done to Tevu'ah (produce). However, a nine-Tefach Bor, which can cause only damage and not death, incurs no liability for damage done to Kelim or to food, since any damage done to such items is considered to be the 'death' of the item. That is why the Gemara (48b) states that the owner of a Bor is exempt for damage caused to water; it is discussing a Bor that cannot cause death (i.e. a nine-Tefach Bor).
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the fire would not have spread without the 
                    extra fuel, obviously, he is liable!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it would have spread without the 
               extra fuel.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection:</font></b> If so, he is exempt! (Rav Sheshes' 
               question is ill-founded.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> It should also teach the case of 
          the following Beraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If five men sat on a bench without 
               breaking it, and a sixth man sat on it, and it 
               broke, he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> The sixth man was fat.
<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 it would not have broken without him, 
                    obviously, he is liable!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, it would have broken without 
               him.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection:</font></b> If so, he should be exempt!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Surely, the Beraisa teaches a Chidush. 
               What is it?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2:</font></b> Rather, without him, it would have 
               broken in two hours. Because he sat on it, it broke 
               in one hour.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The others can say 'had you not sat on it, we 
                    would have left before it broke!'
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Objection:</font></b> He can say 'without the five of you, I 
               would not have broken it alone!'
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #3:</font></b> Really, it would not have broken 
               without him. The case is, he did not sit on it. He 
               only leaned on the men sitting on it.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'>  Question:</font></b> What is the Chidush?
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that (damage 
               caused by) his force is unlike (damage by) his body. 
               The Beraisa teaches that this is not so. 
               (Presumably, the Mishnah did not teach this case, 
               for the last man did all the damage.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah should also teach the case of the 
          following Beraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If 10 men hit Reuven, each with a 
               different stick, and he died, whether this was at 
               the same time or one after the other, they are 
               exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah ben Beseira says, if they hit him one 
               after the other, the last one is liable, for he 
               hastened the death.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The Mishnah discusses damages, not death.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2:</font></b> We do not list cases about which there is an 
          argument.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> We were willing to establish the Mishnah 
          unlike Rebbi!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> We can say that the Mishnah is like Rebbi, 
          unlike Chachamim. We will not establish it like an 
          individual (R. Yehudah ben Beseira), unlike Chachamim.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHO GETS THE CARCASS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One who is responsible to pay for the 
          damage...
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	The Mishnah does not say 'one who is responsible for 
          the damage', rather, 'one who is responsible to pay for 
          the damage'. This teaches like the following Beraisa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'Payments for his damage' (taught in 
               the Mishnah) teaches that the owner (of an animal 
               that was killed) takes the carcass (i.e. he receives 
               the difference between the value of a live animal 
               and the carcass).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (R. Ami):</font></b> We read 'one who strikes an animal 
          Yeshalmenah (will pay for it)' like 'Yashlimenah (will 
          complete it, i.e. pay the decreased value)'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Kahana):</font></b> 'He will bring Ed (a witness), 
          the Tereifah he will not pay' - we read this 'Ad (up to 
          the difference between a live animal and a Tereifah, he 
          will pay. For) the Tereifah (itself), he need not pay 
          (rather, he gives back the Tereifah)'.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Chizkiyah):</font></b> 'The carcass will be to him' - 
          to the victim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Tana d'Vei Chizkiyah) Suggestion:</font></b> Perhaps it is to the 
          damager!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection:</font></b> It is not that way.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> If it were to the damager, the Torah 
          should have said only 'an ox for an ox.' It added 'the 
          carcass will be to him' to teach that it is to the 
          victim.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	We need all these verses.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had the Torah taught only about a man who strikes 
               an animal, one might have thought that is because it 
               is uncommon; but Tereifos are common, perhaps there 
               it is to the damager (Shomer);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it taught only about a Tereifah, one might 
               have thought that this is because it died by itself, 
               but if one struck an animal, the carcass would be to 
               the damager;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Had it taught only about these two cases, we 
               would attribute the law to the above reasons (it is 
               uncommon, or the man actively damaged); but it is 
               common for an animal to fall in a pit and it happens 
               by itself, so the carcass would be to the damager. 
               The verse teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Rav Kahana):</font></b> Without the verse 'the carcass 
          will be to him', could we really think that the damager 
          must keep the Neveilah?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'He will return' teaches that 
               (anything) worth money may be given, even bran.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Summation of question:</font></b> The damager can pay with (even 
               other) carcasses if he wants, all the more so with 
               the victim's carcass!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> The verse teaches that the victim suffers 
          any loss in value of the carcass from the time of damage 
          until the payment.
<br>

sjt:
<p>
<font><b>2) A HEAVY PERSON WHO BREAKS A BENCH</b></font><b>
<br>QUESTION:</b> The Beraisa teaches that if five people sat on a bench and it did not break, and then one person came and sat on it and it broke, the last person is liable to pay for the damages. Rav Papa says that this refers to a person 'like Papa ben Aba.' Rashi says that Papa ben Aba was heavy.
</p><p>
What is the significance of the fact that the person who broke the bench was heavy? Would the Halachah differ if the person was not heavy?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Kegon) in the name of the <b>RASHBAM</b> explains that when a person is invited into the home of another, the invitation includes permission to sit on any of the seats or benches in the house, but only if the person is not extremely overweight. If the person is extremely overweight, the invitation does not include permission to sit on the benches in the house. Therefore, if the person who broke the bench was not very heavy, he would not be obligated to pay for the damages since he was permitted to sit down on them. He is considered a 'Sho'el' (borrower) who is exempt from paying for an item that breaks in its normal course of usage ('Meisah Machmas Melachah'). A person like Papa bar Aba, however, would not have permission to sit on the bench, and thus he would be liable for damaging it.
</p><p>
The Rishonim ask a number of questions on this approach. 
</p><p>
According to the Rashbam, even if the heavy person was not the last person to sit on the bench but was the first person to sit down, he should be liable if the bench breaks since the others (who are of normal weight) used the bench with permission, while he used it without permission. (<b>RABEINU YESHAYAH</b> cited by the Shitah Mekubetzes)
</p><p>
Moreover, when the Gemara suggests that the bench eventually would have broken without the last person sitting on it but since he sat there it broke sooner, the Gemara finds it necessary to explain why the other people sitting on the bench are exempt. The Gemara says that they could claim, 'Had you not sat down, we would have been able to sit longer, and therefore we should not be liable.' The Gemara rejects this claim by asserting that they should have arisen immediately when they saw the heavy person sit down next to them on the bench.
</p><p>
Why, though, do the others need any excuse to exempt themselves? The reason they are exempt is because they sat there with permission because they are of normal weight! (Ibid.)
</p><p>
<b>RABEINU YESHAYAH</b> answers that one question answers the other. The fact that the Beraisa obligates the heavy person only because he is the last one who sat there implies that the other people who sat on the bench are also overweight. That is why the last person to sit down is liable only if he is the <i>last</i> one to sit there. Otherwise, he would be exempt and the heavy person who <i>did</i> sit there last would be obligated instead, since he sat there without permission. (Although the other heavy people also sat there without permission, 'the bench would not have broken if he (the last one) had not sat there.')
</p><p>
This answers the second question. The Gemara needs to find an excuse to exempt the first people who sat on the bench because they, too, were heavy (and sat there without permission), which is clear from the fact that the person who broke the bench is liable only because he was <i>last</i>. (See <b>TALMID RABEINU PERETZ</b> cited by the Shitah Mekubetzes who offers a different answer to these two questions.) 
</p><p>
(b) <b>TOSFOS</b> cites <b>RABEINU TAM</b> who answers that Rav Papa explains that the person who broke the bench was heavy because the Gemara concludes that that person is liable since he leaned on the people who were sitting on the bench. He put his weight on the bench and, at the same time, prevented the others from standing up. If he was not very heavy, he would not have been able to prevent the others from standing up. 
</p><p>
According to this approach, Rav Papa actually answers his own question. Rav Papa asked why the Gemara does not explain that the Mishnah's case is the same as the case of the Beraisa, in which the last person broke the bench? Rav Papa himself immediately answers that in the Beraisa's case the last person pushes down on the bench and on the people on it, thereby causing <i>all</i> of the damage and not just the final blow. (According to Rabeinu Tam, the proper Girsa is 'Amar Rav Papa' and not 'v'Amar Rav Papa' as it appears in our texts.) The Gemara then articulates why Rav Papa finds it necessary to explain the Beraisa in this way. (<b>RASHBA</b>)
</p><p>
According to Rabeinu Tam, it cannot be proven from this Gemara that a person is permitted to sit on a bench in any house into which he is invited.
</p><p>
(c) The <b>ME'IRI</b> writes that Rav Papa made his comment in a light-hearted manner. He was commenting that it must have been a very heavy person who broke the bench. (Rav Papa himself was known to be heavy (Bava Metzia 84a), and perhaps he was giving himself as an example when he said this, saying that he would have broken the bench had he sat there.)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LOSS IN VALUE OF THE CARCASS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue about who suffers loss in 
          value of the carcass.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> '(The Shomer) will bring Ed' - he 
               brings Edim (witnesses) that it became Tereifah 
               through Ones (beyond his control) to exempt himself;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Aba Sha'ul says, he brings Edudah (the carcass) 
               to Beis Din.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> The first Tana holds that the victim 
               suffers regarding loss in value of the carcass; Aba 
               Sha'ul holds that the damager suffers the loss.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> All agree that the victim suffers the loss. 
          They argue about who must toil to retrieve it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support (Beraisa - Others):</font></b> 'He will return money to 
          the owner, and the carcass' teaches that the owner of the 
          pit must take the carcass out of the pit.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> What is the case of toil to retrieve 
          it?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is worth one Zuz in the pit, and four Zuz 
               on the edge of the pit, the pit owner toils for his 
               profit!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The case is, it is worth one Zuz in the 
          pit, and also on the edge of the pit.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Is that ever the case?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Yes! This is like people say, a beam is worth 
          one Zuz in the city, and the same as in the wilderness.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>FOR WHOM DO WE EVALUATE (THE VALUE OF THE CARCASS)?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> We do not evaluate (the value of the carcass 
          towards the required payment) for thieves or robbers, 
          only for damagers. My father and I say, even for a 
          borrower.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Does he mean, even for a borrower we do 
          evaluate, or we do not?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> A man borrowed an axe and broke it. Rav 
          obligated him to pay the full value of an axe.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that we do not evaluate for borrowers.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> To the contrary! Rav Kahana and Rav Asi 
          asked Rav if that was really the law, and Rav was silent!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that we do evaluate for borrowers!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Ula):</font></b> We evaluate for thieves or robbers.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Papi):</font></b> We do not evaluate for them.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	The Halachah is, we do not evaluate for them, but we do 
          evaluate for a borrower, like Rav Kahana and Rav Asi.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>OTHER TEACHINGS OF ULA (FROM R. ELAZAR)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Ula):</font></b> If a fetal sac that partially left the womb on 
          Sunday, and part came out on Monday, the days of Tum'ah 
          (of childbirth) start from Sunday.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Are you being stringent? This 
          stringency will lead to a leniency, for she will consider 
          herself to be Tehorah two weeks from Sunday!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> Rather, she is concerned lest she became 
          Teme'ah on Sunday, but she counts days of Tum'ah only 
          from Monday.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Ula teaches that (even) part of a fetal sac 
          always contains (part of) a child. A Mishnah teaches 
          this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a fetal sac (of an animal) 
               partially left the womb, one may not eat it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> What is a sign (that there was) a child in a 
               woman, is also a sign in an animal.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> From the Mishnah, one might have thought that a 
          fetal sac does not always contain a child. The Mishnah 
          decrees when part of the sac left due to when the entire 
          sac left. Ula teaches that this is not so.
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN PAYMENT FOR DAMAGES AND PAYMENT FOR STOLEN ITEMS</b></font><b>
<br>QUESTION:</b> Shmuel teaches that 'Ein Shamin' -- we do not appraise the payments of a Ganav and Gazlan, but only the payments of Nezikin. The Gemara concludes that for a Sho'el, one who borrowed an item, we do appraise the payment.
</p><p>
What does this 'appraisal' mean? The Gemara earlier teaches that a person may pay for damages with any object of value which he appraises to be worth the value of the damage. The Gemara (10b) teaches that for this reason if one's ox gores someone else's ox, the Mazik must pay only the difference in value between the live ox and the dead ox, since he may insist that the Nizak accept the dead ox as the first installment of the payment owed.
</p><p>
In what way is the Halachah of the payment of a Ganav and Gazlan different from the Halachah of the payment of a Mazik? Moreover, the Gemara cites no source for Shmuel's ruling. Why should the payment of a Ganav and Gazlan differ from the payment of a Mazik?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> writes that a Ganav may not return the carcass of an ox he stole as part of the payment for stealing the ox. Rather, he must return a fit ox. For Nezikin, however, the Mazik may pay the dead ox as part of his payment, as the verse says, 'veha'Mes Yiheyeh Lo' -- 'the carcass shall be his' (Shemos 21:36).
</p><p>
What does Rashi mean? The Gemara earlier explains that this verse, 'veha'Mes Yiheyeh Lo,' is not necessary to teach that the Mazik may use the carcass as payment because the word 'Yashiv' (Shemos 21:34) already teaches that a Mazik may pay back with any form of Shaveh Kesef.
</p><p>
Also, does Rashi mean to say that a Ganav cannot pay back with Shaveh Kesef? The Gemara earlier (5a) says that the acts of stealing of a Ganav and Gazlan are called Avos Nezikin since they must pay from Meitav like the Avos Nezikin, which implies that they <i>may</i> pay with Shaveh Kesef.
</p><p>
It seems that Rashi's intention is to explain the way the <b>MAHARI KOHEN TZEDEK</b> (in the Shitah Mekubetzes) explains. The Mahari explains that Shmuel rules like Rav Huna (9a) who argues with the Gemara earlier (7b) and says that one may not pay for Nezikin, l'Chatchilah, with Shaveh Kesef (see Insights to 9a). According to Rav Huna, the verse 'veha'Mes Yiheyeh Lo' indeed teaches that there is one form of Shaveh Kesef which <i>may</i> be used l'Chatchilah, even if the Mazik has Kesef or Meitav (Karka), and that is the Neveilah, the carcass, of the ox that was gored. Rashi explains that Shmuel means to say that a Ganav or Gazlan may not even pay with the Neveilah of the ox that he stole l'Chatchilah when he has Kesef or Karka with which to pay.
</p><p>
The Gemara later (94a) explains why this should be so. The Gemara says that Shmuel's ruling is based on the fact that a Ganav acquires the item that he stole through a Shinuy (by changing it in a significant way). The Mahari Kohen Tzedek says that this explains Shmuel's ruling in the following manner. When one's ox gores another's ox, the carcass remains the property of the Nizak. Therefore, when the Mazik gives the carcass to the Nizak, he is not really 'paying' him, but rather he is simply saying that he never damaged this part of the value of the ox (i.e. the carcass). Since it is not a form of payment for damage done, it does not have to be Kesef or Meitav. A Ganav, in contrast, acquires the entire ox when it dies, and therefore the carcass belongs to him. If he returns it to its rightful owner, it can be returned only as a form of payment for the ox that he stole. Since, l'Chatchilah, he must pay back with Kesef or Meitav, this payment is not acceptable. 
</p><p>
The <b>RIVAM</b>, as cited by <b>TOSFOS</b> in Bava Metzia (97a; see also <b>RASHBA</b> here in the name of 'Yesh Mefarshim'), offers a similar explanation. Like Rashi, he explains that Shmuel refers only to using the carcass as payment. Although a person may pay l'Chatchilah with Shaveh Kesef, Beis Din will never suggest to a person that he pay with Shaveh Kesef when Beis Din sees that he intends to pay with Kesef. However, Beis Din <i>will</i> suggest to a Mazik that he give the Neveilah to the Nizak rather than paying for the value of the carcass, since the Mazik never damaged that part of the animal (as mentioned above), and it still belongs to the Nizak. If a Ganav stole an ox and the ox died, Beis Din will <i>not</i> suggest that he give the carcass back to the one from whom he stole, since he was Koneh the ox through a Shinuy, and thus giving back the carcass is a form of payment, and Beis Din never suggests to a person that he pay with Shaveh Kesef if he does not think of it himself.
</p><p>
(b) <b>RABEINU CHANANEL</b> and the <b>SHE'ILTOS</b> (end of #111) write that a Ganav and Gazlan must pay back a complete ox or a Kli similar to the one that he stole. He may <i>not</i> pay back with Shaveh Kesef. (Tosfos seems to understand this to be Rashi's intention as well.)
</p><p>
Tosfos explains that the source for Shmuel's ruling, according to this interpretation, is in the Yerushalmi (end of Bava Kama 1:1) which derives from the verse, 'Asher Gazal' (Vayikra 5:23), that a Ganav must return an item similar to the one he stole. Therefore, a Ganav must pay back the same type of item he stole, or the amount of money of the value of that item.
</p><p>
If the verse says that he must return something similar to what he stole, why should he be able to return money? The Rosh explains that since money is used with ease to purchase a similar item, it is also called 'k'Ein she'Gazal.' Tosfos Rabeinu Peretz (see Hagahos of Rav Binyamin Zev Prag) cites proof from the Gemara later (66a) that one may repay a Gezeilah with money.
</p><p>
The <b>RASHBA</b> also cites this explanation, but he implies that the Ganav and Gazlan must pay an <i>object</i> similar to what they stole, and they may not pay with money, according to Shmuel.
</p><p>
The Rishonim cite support for this explanation of Shmuel from the incident cited by the Gemara in which Rav told a Sho'el that he must pay back a 'complete ax,' based on the logic that 'Ein Shamin l'Sho'el.' 
</p><p>
(c) The <b>RASHBAM</b> cited by Tosfos in Bava Metzia (96b) and by Tosfos Rabeinu Peretz here does not accept the explanation of Rabeinu Chananel, that a Ganav may not pay back with Shaveh Kesef, because the Gemara (5a) explains that a Ganav pays with Meitav (like a Mazik). The Rashbam also does not accept that the Gemara here relies on a verse that is expounded only in the Yerushalmi. Therefore, he explains that Shmuel means only that the Ganav <i>does</i> have to pay 'Pechas Neveilah,' whereas a Mazik does not have to pay Pechas Neveilah, as the Gemara explains earlier (10b).
</p><p>
The logic for this is the same as the logic of the explanation of the Rivam. The reason why a Mazik does not pay Pechas Neveilah is that the Neveilah always remained in the possession of the Nizak, and it lost value while in the Nizak's possession. A Ganav, however, acquires the object that he breaks, and therefore even the remains of the object are his, and he must reimburse the person from whom he stole with the full value of the object. If the carcass of the animal that he stole depreciates before he gives it as payment to its original owner, it has depreciated in his possession and at his expense, and not at the owner's expense. (The Rashbam suggests that this is the intention of the Yerushalmi cited by Tosfos as well.)
</p><p>


<font><b>2) A 'SAFEK TUM'AH' OF A 'YOLEDES'</b></font><b>
<br>QUESTION:</b> Ula teaches in the name of Rebbi Elazar that if a 'Shilya' (placenta, or, more specifically, the fetal membranes in which the fetus forms, which are attached to the placenta) partially emerges from the womb on one day and completely exits the next day, mi'Safek it is assumed that the birth occurred on the first day and whatever the woman touched on that day are considered Tamei, because she has the status of a Yoledes. The Gemara explains that Rebbi Elazar's intention is to teach that every part of the Shilya has inside of it some part of the child, and thus if part of the Shilya emerged, then certainly part of the baby also emerged. This implies that if it was possible for part of the Shilya to emerge without any of the baby, the woman would be Tahor on the first day because of a Sfek Sfeika: first, perhaps part of the Shilya that emerged did not include any part of the child, and second, even if it did include part of the child, perhaps it did not include most of the child (or, as <b>TOSFOS</b> says, the head of the child; see <b>TOSFOS RABEINU PERETZ</b>).
</p><p>
Why would the woman be Tahor on the first day if there is a Sfek Sfeika concerning her status? The Halachah is that any Safek Tum'ah in Reshus ha'Yachid is deemed to be Tamei, even when there is a Sfek Sfeika (Taharos 6:4; see Insights to Kesuvos 9a). Hence, the woman should be Tamei in Reshus ha'Yachid even if there is a Sfek Sfeika concerning her Tum'ah. If, on the other hand, she is in Reshus ha'Rabim, she should be <i>Tahor</i> even if every part of the Shilya contains the child and there is only one Safek. (<b>TOSFOS</b> DH d'Ein)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> explains that the Gemara here is not discussing whether or not the woman is Metamei Taharos (as Rashi explains), but rather it is discussing the prohibition of the woman to her husband.
</p><p>
What is the difference whether the Sugya is discussing Tum'ah for Terumah or Tum'ah to her husband? The <b>SHEV SHEMAITSA</b> (1:12) explains that Tosfos is teaching that the Isur of a Nidah to her husband is not an Isur of Tum'ah (even though the Isur to her husband comes at the same time as her Tum'ah). Rather, it is a matter of Isur Arayos, and therefore the rules of Safek Tum'ah (which is deemed Tamei in Reshus ha'Yachid and Tahor in Reshus ha'Rabim) do not apply to the Isur to her husband. 
</p><p>
Not all Acharonim agree with the Shev Shemaitsa on this point (see <b>SHA'AREI YOSHER</b> 1:13-14). In <b>CHIDUSHEI REBBI SHIMON</b>, the son of Rav Shimon Shkop points out that according to the Shev Shemaitsa, if a woman becomes a Safek Nidah in Reshus ha'Rabim, she should be deemed Asur to her husband even though she is Tahor and permitted to eat Terumah. Also, the fact that the Isur to her husband remains until she immerses herself in a Mikvah for her Tum'as Nidah indicates that the Isur to her husband <i>is</i> related to Tum'ah. He suggests, therefore, that Tosfos' intention is as follows.
</p><p>
<b>RAV CHAIM OZER GRODZENSKY</b> (Achiezer 1:1:2) writes that although the Torah decrees that a Safek Tum'ah in Reshus ha'Yachid is Tamei, its Tum'ah is not necessarily related to the type of Tum'ah that caused the Safek. Its Tum'ah, rather, is a Gezeiras ha'Kasuv of Tum'ah due to 'Safek Tum'ah.' For example, when a Nazir becomes Tamei to a Safek Tum'as Mes in Reshus ha'Yachid, he will <i>not</i> need to be Megale'ach. Although the Halachah is that he is definitely Tamei, his Tum'ah is not Tum'as Mes but rather the Tum'ah of a Gezeiras ha'Kasuv, and a Nazir is Megale'ach only for Tum'as Mes. Since his Tum'as <i>Mes</i> is a Safek, he cannot be Megale'ach.
</p><p>
Accordingly, the same applies to Safek Tum'as Nidah. Although a Sfek Sfeika of Tum'as Nidah is definitely Tamei in Reshus ha'Yachid, her Tum'ah is not that of a Nidah, but that of a Gezeiras ha'Kasuv. The only Tum'ah that can prohibit a woman to her husband is the Tum'ah of a Nidah. Therefore, with regard to the Isur to her husband she will be Tahor and permitted to him if there is a Sfek Sfeika regarding her Tum'as Nidah.
</p><p>
According to this explanation, even if a woman is Tahor from Tum'as Nidah because the Safek regarding her Tum'ah arose in Reshus ha'Rabim, she will be Tahor to her husband as well since a woman can be Asur to her husband only if she has the <i>Tum'ah</i> of a Nidah. 
</p><p>
(b) <b>TOSFOS RABEINU PERETZ</b> suggests that the rule of Safek Tum'ah in Reshus ha'Yachid or in Reshus ha'Rabim does not apply to a Safek that arises regarding the woman's status as a Nidah. The rule applies only to questions regarding whether a person <i>came in contact</i> with Tum'ah and might therefore be Tamei. It does not apply to questions whether or not the Dam Nidah came out of the woman's body, since the Dam does not make the woman Tamei through contact with it but rather through the fact that it emerged from her body.
</p><p>
This principle is based on the teaching of Tosfos in Nidah (2a, DH m'Es l'Es, and 17b, DH v'Ein).
</p><p>
(c) The words of <b>RASHI</b> (DH d'Ein) imply a new approach. Rashi does not call the questionable birth a Sfek Sfeika. Rather, he calls it 'two Chumros.' Rashi might mean that if part of a Shilya does not necessarily contain part of the child, then it is so far-fetched to say that most of the child was in the small part of Shilya that emerged from the womb that it does not warrant being considered a Safek altogether. In lieu of legitimate cause for concern that the woman is Tamei, the woman would be Tahor even in Reshus ha'Yachid. (See Insights to Kesuvos 9a.) 
</p><p>
According to this approach, Rashi may understand that the Gemara requires a Rov of the child to be born in order for there to be Tum'as Leidah. As Tosfos Rabeinu Peretz points out, other Sugyos imply that it suffices for the <i>head</i> to emerge in order for there to be Tum'ah (and a Rov of the baby is not necessary). Rashi, however, cannot explain that the birth of the head creates Tum'ah, because if that would be so, the case would involve a legitimate Sfek Sfeika: first, whether any part of the child was in the Shilya, and second, even if some part was in the Shilya, perhaps that part was not the head. If it is a Sfek Sfeika, she should be deemed Tamei in Reshus ha'Yachid, as Tosfos asks.
</p><p>
Rashi therefore explains that the case involves a single Safek: was or was not most of the child in the part of the Shilya that emerged?
</p><p>
<b>REBBI AKIVA EIGER</b> asks that according to Rashi, who maintains that most of the child must be born in order to make the mother Tamei, there is only a single Safek regarding the Tum'ah and not a Sfek Sfeika. Why, then, should the Halachah be more lenient even if it is possible for part of a Shilya not to have any part of the child in it?
</p><p>
Rashi answers by saying that the reason for leniency in such a case is not because of a Sfek Sfeika but because the possibility that most of the child was in the part that emerged would be too removed to consider it a Safek. (M. Kornfeld)
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Ula):</font></b> If a firstborn boy became Tereifah within 30 
          days, we do not redeem him.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rami bar Chama) Suggestion:</font></b> Perhaps 'you will surely 
          redeem (a firstborn son)' applies even if he became 
          Tereifah within 30 days!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'Only' teaches that you do not.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Ula):</font></b> A large (i.e. work) animal is acquired through 
          Meshichah (taking to one's domain).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> It is acquired through Mesirah 
          (handing over).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Ula holds like the following Tana.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Chachamim say, both large and small 
               animals are acquired through Meshichah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, both are acquired through lifting 
               them.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Ula):</font></b> If brothers split an inheritance, we evaluate 
          the value of the clothes each brother is wearing (it is 
          as part of his share), but not what his children are 
          wearing.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> Sometimes, we don't even evaluate what a 
          brother is wearing, such as an eldest brother (who pleads 
          on behalf of his brothers). They want that he be dressed 
          nicely, so his words will be heeded!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Ula):</font></b> If a Shomer handed over (what was given to him) 
          to another Shomer, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Not only a Shomer Chinam who gave to a Shomer 
               Sachar, who elevated the level of guarding, is 
               exempt. Rather, even a Shomer Sachar who gave to a 
               Shomer Chinam, who lowered the level of guarding, is 
               exempt, for he gave it to one with understanding.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Rava):</font></b> If a Shomer handed over to another Shomer, he 
          is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Not only a Shomer Sachar who gave to a Shomer 
               Chinam, who lowered the level of guarding, is 
               liable, for he lowered the level of guarding. 
               Rather, even a Shomer Chinam who gave to a Shomer 
               Sachar, who raised the level of guarding, is liable, 
               for the depositor can say that he doesn't trust the 
               oath of the second Shomer.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Ula citing R. Elazar):</font></b> The law is, we collect debts 
          from slaves.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (Rav Nachman):</font></b> Did R. Elazar say that we 
          collect slaves even from orphans?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (Ula):</font></b> No, we collect only from the borrower 
          himself.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Question:</font></b> That is no Chidush. We collect even the shirt 
          that a borrower is wearing!
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the slave was made an Aputiki 
          (special collateral to pay the loan. It is collected even 
          if it was sold):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> If one made his slave an Aputiki and sold 
               him, a creditor collects the slave;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If one made his ox an Aputiki and sold it, a 
               creditor does not collect it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the difference between them?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> People hear about making a slave an 
               Aputiki, but not about making an ox an Aputiki. (It 
               is unfair that one who bought an ox lose it, for he 
               did not knew about the Aputiki.)
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ARE SLAVES LIKE LAND?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Ula, after Rav Nachman left):</font></b> Really, R. Elazar said 
          that we collect slaves even from orphans.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> Ula evaded me (he feared lest I challenge 
          him).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Cases occurred in which the judges of Nehardai 
          collected slaves from orphans, and R. Chana bar Bizna did 
          so in Pumbedisa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman (to the creditor):</font></b> Return the slaves. 
               If not, I will collect from your house!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rava):</font></b> R. Elazar, Ula, the judges of 
               Nehardai and R. Chana bar Bizna all say that we 
               collect. On whom do you rely to oppose this?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> I rely on a Beraisa:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Avimi - Beraisa):</font></b> Pruzbul (a document handing 
                    over loans to Beis Din, so they will not be 
                    cancelled in Shemitah) takes effect on (is 
                    valid only if the lender has) land. It does not 
                    take effect on slaves;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Metaltelim (movable objects) can be 
                    acquired Agav (along with an acquisition of) 
                    land, but not with an acquisition of slaves.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ACQUISITION AGAV LAND AND SLAVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue about whether or not slaves 
          are like land.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> Shimon was buying slaves and land. 
               If he did a Chazakah to acquire the slaves, he did 
               not acquire the land. If he did a Chazakah to 
               acquire the land, he does not acquire the slaves.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he was buying land and Metaltelim, if he did a 
                    Chazakah to acquire the land, he did acquired 
                    the Metaltelim. If he made a Kinyan on the 
                    Metaltelim, he did not acquire the land.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If he was buying slaves and Metaltelim, if 
                    he did a Chazakah to acquire the slaves, he did 
                    not acquire the Metaltelim. If he made a Kinyan 
                    on the Metaltelim, he did not acquire the 
                    slaves.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> If he did a Chazakah to acquire the 
               slaves, he acquires the Metaltelim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Tana #1 (of Beraisa #1) holds that 
               slaves are like Metaltelim. Tana #2 holds that they 
               are like land.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1 - Rejection (Rav Ika brei d'Rav Ami):</font></b> All 
          agree that slaves are like land;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first Tana holds that Metaltelim are acquired 
               only with land like 'fortified cities in Yehudah' 
               (the source for acquisition Agav land), i.e. 
               stationary land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> Property without Achrayus (a lender 
                    cannot collect it from one who bought the 
                    property from the borrower, i.e. Metaltelim) is 
                    acquired with property with Achrayus (land), 
                    through money, a document or Chazakah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Question:</font></b> What is the source of this?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Answer (Chizkiyah):</font></b> 'He gave them... gold, 
                    silver and choice gifts with fortified cities 
                    in Yehudah'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #2 - Rejection (Rav Ika brei d'Rav Ami):</font></b> All 
          agree that slaves are like Metaltelim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Tana #2 said that Metaltelim are acquired with 
               slaves. He refers to the clothes that the slave is 
               wearing.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why does it help if he is wearing them? A 
          slave is like a moving Chatzer (yard), which does not 
          acquire Metaltelim inside it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps the Beraisa discusses when 
               the slave is standing still.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Rava taught that anything that does 
               not acquire when it moves, does not acquire when it 
               stands still.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> If the slave is tied up (he cannot move), what 
          he is wearing is acquired with him.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Beraisa #3):</font></b> A Chazakah to acquire the land 
          also acquires the slaves!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> That is when the slaves are standing in the 
          land.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Inference):</font></b> If so, Beraisa #1 says that they are not 
          acquired even when standing in the land!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> This is like Version #1, that slaves are like 
          Metaltelim. Metaltelim are acquired with land only if 
          they are on that land'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Version #2, slaves are like land. 
               What difference does it make whether or not they are 
               in the land?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> If Reuven was buying lands in different 
               places, he makes a Chazakah on one and acquires them 
               all.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Counter-question:</font></b> According to Version #1, slaves 
               are like Metaltelim. What difference does it make 
               whether or not they are in the land? We hold that 
               Metaltelim are acquired with land even if they are 
               not on that land!
<br>
<br>

sjt:
<font><b>1) IS AN 'EVED' LIKE 'KARKA'</b></font><b>
<br>QUESTION:</b> The Gemara cites a Machlokes Amora'im concerning whether or not a lender of a loan with a Shibud may collect Avadim for his loan just as he may collect Karka. The Gemara explains that the Machlokes Amora'im depends on whether an Eved is like Karka or like Metaltelin. Other Halachos that are dependant on this question include whether a Pruzbul may take effect on an Eved, and whether Avadim may be acquired through Kinyan Agav with Karka. 
</p><p>
Why do the Amora'im debate this point? The Mishnah later (96b) itself discusses this explicitly. In the Mishnah there, Rebbi Meir and the Chachamim argue whether or not Avadim are like Karka, and whether or not the Halachah of 'v'Heshiv Es ha'Gezeilah' applies to stolen Avadim. (Rebbi Meir says that they are not like Karka.) Moreover, the Mishnah in numerous places teaches that all of the Halachos that are unique to Karka apply to Avadim because of a Hekesh which compares Avadim to Karka (for example, there is no Shevu'ah, Ona'ah, or Tashlumei Kefel for Avadim (Bava Metzia 56a)). (<b>TOSFOS</b> DH Ana)
</p><p>
<b>ANSWER: TOSFOS</b> explains that with regard to Halachos that are mid'Oraisa, the Chachamim (and Mishnah) who argue with Rebbi rule that Avadim are comparable to Karka. The Amora'im in the Gemara here are discussing Halachos instituted by the Rabanan. Perhaps with regard to Halachos d'Rabanan, Avadim are not like Karka, even according to the Chachamim who argue with Rebbi Meir.
</p><p>
The words of Tosfos are difficult to understand. There is a general principle that 'Kol d'Sakun Rabanan k'Ein d'Oraisa Takun' -- the Rabanan made their enactments similar to the laws of the Torah. Accordingly, Avadim should be like Karka even with regard to enactments of the Rabanan. Moreover, according to Tosfos the Amora'im should argue whether a Shevu'ah d'Rabanan (such as Nishba'in v'Notlin, Shevuos 44b) may be made on Karka, and yet there is no such Machlokes.
</p><p>
It seems that Tosfos' intention is to differentiate between the Takanah d'Rabanan of Shibud Nechasim and Halachos that are mid'Oraisa because of the logic of the <b>RASHBAM</b> (Bava Basra 128a, DH Rav Nachman). The Rashbam explains that the reason Shibud takes effect only on Karka is that a person is not 'Somech Da'as' -- he does not rely on collecting anything other than Karka, since movable items can easily be hidden from him. Therefore, the Rabanan instituted that a Shibud takes effect only on land. (See also <b>TOSFOS</b> to Yevamos 99a, DH Mani.)
</p><p>
The same logic clearly applies to a Pruzbul. The reason why a Pruzbul may be made only when the borrower owns land is that land is considered to be collected the moment Beis Din wants to collect it, since the owner cannot hide it from Beis Din's grasp (see Rashi DH Chal Al ha'Karka).
</p><p>
According to Rashi in Gitin (37a), the reason why the borrower must own Karka in order for the Pruzbul to take effect is that it is unusual for a lender to lend money if the borrower has no land, and the Rabanan did not institute the enactment of Pruzbul in unusual circumstances. According to this reasoning as well, the reason why a person normally lends money to someone who has land is that he knows that the land cannot be hidden from him and will be Meshubad to his loan. 
</p><p>
The <b>NIMUKEI YOSEF</b> in the name of the <b>RE'AH</b> (34b of the pages of the Rif) adds that this is also the reason why the Chachamim instituted that Metaltelin are acquired through a Kinyan Agav with Karka. He explains that because land is immutable, a person always considers Metaltelin secondary to Karka. Therefore, when he makes a Kinyan on Karka, Metaltelin -- which are secondary to the land -- are automatically acquired together with the land.
</p><p>
Accordingly, Tosfos may intend to say that the reason why the Rabanan singled-out land from other possessions is different from the reason why the Torah singled-out land from other possessions. When the Torah gives a unique status or particular Halachah to land, it does so because the ownership a person can exercise over his land is not as strong as his ownership of Metaltelin: he cannot take it with him anywhere or do with it as he pleases. The same applies to Avadim which a person cannot change as he pleases, since the Eved is a living person. That is why, when the Torah singles-out land, it does so to teach that a certain Halachah does <i>not</i> apply to it as it applies to Metaltelin. In contrast, when the Rabanan single-out land to teach that a certain enactment applies only to land and not to Metaltelin, they do so because a person feels more confident ('Somech Da'as') with land than with Metaltelin. Hence, the rule that 'Kol d'Sakun Rabanan...' obviously does not apply, since the Takanah d'Rabanan here is not k'Ein d'Oraisa but it follows an entirely different logic. 
</p><p>
This approach answers the second question as well. If the Rabanan would enact a Shevu'ah, they certainly would say that the Shevu'ah cannot be made on land, k'Ein d'Oraisa, since the Torah's logic for singling-out land with regard to Shevu'ah applies even to a Shevu'ah d'Rabanan. Therefore, 'Kol d'Sakun Rabanan k'Ein d'Oraisa Takun' applies and teaches that a Shevu'ah d'Rabanan cannot be made on land.
</p><p>
The Nimukei Yosef takes this approach further and asserts that even if Kinyan Agav is mid'Oraisa, it still may be true that the reason why Karka is unique with regard to this Halachah d'Oraisa is not the same reason why Karka is unique with regard to Shevu'ah and other Halachos. The reason is that a person is 'Somech Da'as' more on Karka. Hence, the Gemara here might even follow the opinion that 'Shibuda d'Oraisa' (which is the Halachic opinion, as the Rashba points out).
</p><p>
 
<br> 
<br><font><b>2) ACQUIRING 'AVADIM' THROUGH ACQUIRING LAND</b></font><b>
<br>QUESTIONS:</b> The Gemara cites a contradiction between two Beraisos concerning whether a person may acquire Avadim by making a Chazakah on Karka. The Gemara answers that -- whether Avadim are like Karka or like Metaltelin -- the contradiction between the Beraisos may be answered by explaining that one <i>can</i> acquire Avadim with Karka when the Avadim are standing in the land, and one <i>cannot</i> acquire Avadim with Karka when the Avadim are not standing there.
</p><p>
The Gemara asks what difference does it make whether or not the Eved is standing in the land? Even if the Eved is not standing in the land, he should be acquired through a Kinyan on the Karka. (If Avadim are like Metaltelin, then the Eved should be acquired through Kinyan Agav, and if they are like Karka, then the Eved should be acquired through Shmuel's Halachah that one can acquire ten fields through a Chazakah on a single field.) 
</p><p>
The Gemara answers that the reason why the Avadim must stand in the field in order to be acquired with the field is that they move by themselves (and therefore they are not comparable to other Metaltelin or other Karka). (See Chart.)
</p><p>
(a) It is clear that neither Kinyan Agav nor the Kinyan of Shmuel applies in every case in which a person transfers Karka together with other Metaltelin or Karka. Kinyan Agav applies only when a person specifies that he wants the buyer to acquire the Metaltelin through Kinyan Agav with the Karka (Kidushin 27a). The Halachah of Shmuel applies only when the buyer has already paid for all of the fields that he wants to acquire, and not just for the field on which he performs the Chazakah (Kidushin 27b). Why, then, does the Gemara assume that the Beraisos are discussing a situation in which Kinyan Agav or the Halachah of Shmuel applies? Perhaps the Beraisos are discussing a situation in which those Halachos do not apply. The reason why the Eved must stand on the Karka is in order that he be acquired through <i>Kinyan Chatzer</i>; if he is in the Chatzer he can be acquired, and if he is not in the Chatzer he cannot be acquired. (<b>TOSFOS</b> DH Lamah Li)
</p><p>
(b) If the Gemara is not discussing Kinyan Chatzer, then what logic is there to differentiate between whether the Eved is standing in the land or not? If Kinyan Agav, or the Halachah of Shmuel, does not apply to Metaltelin or to movable Karka, then it should make no difference whether or not the Eved is standing in the land.
</p><p>
<b>ANSWERS:</b>
<br>(a) The Rishonim offer different answers to the first question.
</p><p>
1. <b>TOSFOS</b> explains that an Eved normally is <i>not</i> prevented from fleeing when he is inside a field (that is, he is not 'Mishtamer l'Da'as Ba'alo'), and therefore the Gemara assumes that the Beraisa is not discussing Kinyan Chatzer, since a normal Chatzer would not work to acquire an Eved in such a situation.
</p><p>
2. <b>RABEINU YESHAYAH</b> (in the Shitah Mekubetzes) explains that the Beraisa which says that an Eved <i>can</i> be acquired through a Chazakah on Karka is actually a quote from a longer Beraisa, and that longer Beraisa is identical to the Beraisa quoted earlier in all of the cases except in the case of Karka acquiring an Eved. Accordingly, the Beraisa taught that a person cannot acquire Metaltelin through an Eved. If the Beraisa would have been discussing Kinyan Chatzer in the case of Karka acquiring an Eved, it would not have said that Metaltelin cannot be acquired through an Eved since -- if the Eved is bound and the Metaltelin are resting on top of him -- the Kinyan of the Eved works for the Metaltelin on top of him as well.
</p><p>
3. With regard to the opinion that an Eved is considered like Karka, the question assumes that a piece of land can be Koneh other Karka (i.e. the Eved) through Kinyan Chatzer. Perhaps, however, this assumption is not correct, and an Eved <i>cannot</i> be acquired through Kinyan Chatzer if an Eved is considered like Karka.
</p><p>
Is there any basis in the Rishonim to prove that Karka can be acquired through Kinyan Chatzer?
</p><p>
There are several sources in the Rishonim for such a ruling. Tosfos and Rabeinu Yeshayah -- who find it necessary to explain how the Gemara knows that one does not acquire the Eved through Kinyan Chatzer (even though they are addressing the opinion that an Eved is like Karka) -- clearly maintain that one <i>can</i> acquire Karka through Kinyan Chatzer. (The <b><b><b>OR</b></b> SAME'ACH</b>, Hilchos Gerushin 1:6, cites a source for this ruling from the Gemara in Bava Basra 87a, which says that one acquires what grows in the land through Kinyan Chatzer.)
</p><p>
The <b>NIMUKEI YOSEF</b> (Bava Basra 5a) rules that if a person builds a wall on his friend's land and he sells that wall to the owner of the land, the buyer acquires the wall through Kinyan Chatzer (even though the wall is attached, Mechubar, to the ground and is considered like Karka). Furthermore, the <b>RASHBA</b> in Gitin (22b) writes that the verse specifically teaches that one may not write a Get on Karka; without the verse a Get written on Karka would have been valid. However, the Rashba himself (77b) maintains that a Get may be delivered to the woman only through Kinyan Chatzer (or Kinyan Yad, placing it in the hand of the woman, where the hand is like her Chatzer; see Insights to Gitin there). The words of the Rashba imply that it is possible to transfer something that is attached to the ground (and has a status of Karka) to the woman through Kinyan Chatzer.
</p><p>
However, the <b>NESIVOS HA'MISHPAT</b> (241:3) cites proof from a Gemara in Gitin to the contrary. The Gemara in Gitin (22a) teaches that if one person owns a flower pot and another person owns the seeds inside of it, and he sells the seeds to the owner of the flower pot, the owner of the flower pot must make a Chazakah on the seeds to acquire them and he does not acquire them through Chatzer merely because the seeds are in his flower pot. If Kinyan Chatzer would work on Karka, the owner of the flower pot should acquire the seeds through Kinyan Chatzer.
</p><p>
The <b><b><b>OR</b></b> SAME'ACH</b> answers that a flower pot cannot be considered a Chatzer which is supporting the seeds inside of it because what is inside the flower pot -- which has holes in it (it is an Atzitz Nakuv) -- receives its nourishment from the ground, and thus it is considered attached to the ground beneath the pot. Hence, the pot is merely like a towel wrapped around a plant which is attached to the ground.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> You must say that Metaltelim that move 
               are unlike Metaltelim that do not move.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> We can likewise say that land that moves is 
          unlike land that does not move!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Slaves are land that moves. Shmuel discusses 
               (regular) land. All land is connected.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>OWNERSHIP OF KODSHIM KALIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Property to which Me'ilah does not apply.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Inference):</font></b> Me'ilah does not apply to them, but they 
          are Kodshim!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Who is the Tana of the Mishnah?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> The Mishnah discusses Kodshei 
          Kalim. It is like R. Yosi ha'Glili, who says that they 
          are the property of their owner.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'He transgressed in Hash-m (and denied 
               his fellowman)' includes Kodshei Kalim, which 
               (pertain to Hash-m and) are (also) a person's 
               property.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one was Mekadesh with his portion of 
          Kodshim, whether Kodshei Kodoshim or Kodshei Kalim, the 
          Kidushin is invalid.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Suggestion:</font></b> This Mishnah is unlike R. Yosi ha'Glili!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> It can even be like R. Yosi ha'Glili. He 
          said that Kodshei Kalim are the property of the owners 
          only in the life of the animal;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> After slaughter, he agrees that they are 
               considered Hashem's, just we are allowed to eat 
               them.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Does R. Yosi ha'Glili really hold that 
          Kodshei Kalim are the property of the owners in the life 
          of the animal?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> An unblemished Bechor (male firstborn 
               animal) may be sold when alive. If it is blemished, 
               it may be sold alive or slaughtered; he (the Kohen) 
               may use it to be Mekadesh a woman.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> This is only nowadays. Since it 
               cannot be offered, Kohanim own it;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  When the Mikdash stands, Kohanim do not own it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Rava - Beraisa - R. Yosi ha'Glili):</font></b> 'He 
               transgressed in Hash-m' includes Kodshei Kalim, 
               which are a person's property.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Ravina):</font></b> The Beraisa discusses a Bechor 
               in Chutz la'Aretz, according to R. Shimon;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He holds that if they were brought to the Mikdash 
                    unblemished, they are offered. L'Chatchilah, we 
                    do not bring them.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Summation of question):</font></b> If R. Yosi ha'Glili says 
               that they are a person's money while they are alive, 
               Ravina should rather have answered that the Beraisa 
               is like R. Yosi ha'Glili!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Gifts to the Kohen are unlike other Kodshei 
          Kalim. They are Hashem's (just the Kohen is allowed to 
          eat them).
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHICH KODSHIM KALIM ARE CONSIDERED PERSONAL MONEY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Yosi ha'Glili):</font></b> 'He transgressed in 
          Hash-m' includes Kodshei Kalim, which are a person's 
          property;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Ben Azai says, this includes Shelamim;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Aba Yosi ben Dostai says, Ben Azai said 'only a Bechor 
          (is a person's property).'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 - Question:</font></b> Ben Azai said 'this includes 
          Shelamim' (i.e. but not all Kodshim Kalim). What did he 
          come to exclude?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He excludes a Bechor.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Shelamim requires Semichah (pressing 
               on the animal's neck), accompanying flour and wine 
               offerings, and waving the chest and foreleg, and 
               still, we say that it is the owner's money. All the 
               more so, a Bechor is the owner's property!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> He excludes Ma'aser of animals.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> It says about Bechor 'Lo Sipadeh (it 
               will not be redeemed).' It may be sold unblemished 
               when alive, and if blemished, alive or slaughtered;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It says about Ma'aser 'Lo Yiga'el (it will not be 
               redeemed)'. (We learn from a Gezeirah Shavah from 
               Cherem that) it may not be sold, alive or 
               slaughtered, unblemished or blemished. (Therefore, 
               it is not considered the owner's property.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #2 (Ravina) Question:</font></b> Aba Yosi ben Dostai said 
          that Ben Azai said 'only a Bechor.' What did he come to 
          exclude?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He excludes a Shelamim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> A Bechor is Kodesh from the moment it 
               is born, and still, it is the owner's property. All 
               the more so, a Shelamim is the owner's property!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> He excludes Ma'aser.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> It says about Bechor 'Lo Sipadeh.' It 
               may be sold unblemished when alive, and if 
               blemished, alive or slaughtered;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It says about Ma'aser 'Lo Yiga'el.' It may not be 
               sold, alive or slaughtered, unblemished or 
               blemished. 
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Aba Yosi said that Ben Azai said only a 
          Bechor (implying, nothing else)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is left difficult.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rava):</font></b> The Mishnah says 'property in which there is no 
          Me'ilah.' This refers to property to which the law of 
          Me'ilah does not apply to, i.e. a person's property.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If so. the Mishnah should have said so 
          explicitly!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is left difficult.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>KODSHIM THAT DAMAGEF</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Aba):</font></b> If a Shelamim damaged, we collect from the 
          meat, not from the Eimurim (the parts of a Korban offered 
          on the Mizbe'ach).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious! The Eimurim are to Hash-m!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that we collect from the 
          meat the complete (half) damage, even though the Eimurim 
          were partners in the damage. He teaches that this is not 
          so.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> According to which Tana is this?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is like Chachamim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> This is obvious! Chachamim say that when 
               we cannot collect from one of two damagers, we do 
               not collect extra from the other to compensate.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is like R. Nasan.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> He says that when we cannot collect from one of two 
               damagers, we collect extra from the other to 
               compensate!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> This can be like either Tana'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It can be like Chachamim. They said that one 
               damager does not pay the other's share only when 
               there are two damagers. When there is one damager, 
               perhaps they admit that we collect from wherever we 
               can!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It can be like R. Nasan. He said his law only 
               regarding a pit, for the victim can claim 'my ox is 
               in your pit. What I cannot collect from the ox that 
               pushed my ox, I will collect from you;'
<br>
<br>

sjt:
<font><b>1) THE TYPE OF 'KODSHIM KALIM' WHICH IS 'MAMONO'</b></font><b>
<br>QUESTION:</b> Rebbi Yosi ha'Glili maintains that Kodshim Kalim are considered 'Mamono,' the personal property of the owner (and, consequently, if a person denies that he received the owner's Kodshim Kalim to guard for him, and then it is discovered that he did receive them, he must bring a Korban Shevu'as ha'Pikadon). 
</p><p>
Rebbi Yosi ha'Glili does not specify which type or types of Kodshim Kalim are considered 'Mamono.' The Beraisa cites two Tana'im who disagree about which types of Kodshim Kalim are considered 'Mamono.' Ben Azai, according to the Tana Kama, says that the Korban Shelamim is considered 'Mamono.' Aba Yosi ben Dusta'i quotes Ben Azai as saying that only a Bechor is considered 'Mamono.'
</p><p>
The Gemara explains this Machlokes in two ways (see Chart). According to the Lishna Kama, Ben Azai is not saying that only Shelamim is 'Mamono' and not Bechor, because there is a Kal va'Chomer: If a Korban Shelamim -- which requires Semichah, Nesachim, and Tenufah of the Chazeh v'Shok and, therefore, is more Kadosh than Bechor -- is considered the owner's personal property, then certainly a Bechor -- which does not have all those requirements -- is considered his personal property. Why, then, does Ben Azai (according to the Tana Kama) limit the teaching of Rebbi Yosi ha'Glili to Shelamim? Bechor should certainly be considered personal property! The Gemara answers that it must be that Ben Azai means Shelamim <i>and</i> Bechor, and he excludes Ma'aser Behemah which is <i>not</i> 'Mamono.' 
</p><p>
Ravina presents another version (the Lishna Basra) of this Kal va'Chomer. Ravina contends that the Kal va'Chomer refers to the words of Aba Yosi. Why does Aba Yosi say that only a Bechor is the property of its owner? A Bechor is <i>more</i> Kadosh than Shelamim, since it is 'Kadosh m'Rechem,' holy from birth. If a Bechor is considered personal property, certainly a Korban Shelamim is 'Mamono' as well! It must be that Aba Yosi maintains that both Bechor and Shelamim are considered personal property, and when he says 'Bechor' he intends to exclude only Ma'aser Behemah which is not considered 'Mamono' (and for which one is not liable to bring a Korban Shevu'as ha'Pikadon). 
</p><p>
This Sugya is difficult to understand for a number of reasons.
</p><p>
1. Why does the Gemara in the Lishna Kama ask what type of Korban does Ben Azai intend to exclude? The Gemara earlier (12b) teaches that only a Bechor in Chutz la'Aretz is considered personal property according to Rebbi Yosi ha'Glili, since it cannot be brought as a Korban. A Bechor in Eretz Yisrael is more Kadosh and is not considered 'Mamono.' Accordingly, the Gemara should explain that Ben Azai means that <i>only</i> a Shelamim is considered 'Mamono,' while a Bechor in Eretz Yisrael is <i>not</i> considered 'Mamono.' (<b>SHITAH MEKUBETZES</b>, quoting the <b>ROSH</b> in the name of the <b>MAHARAM MI'ROTENBURG</b>; <b>MAHARAM MI'LUBLIN</b>, <b>PNEI YEHOSHUA</b>)
</p><p>
2. If the Kal va'Chomer, according to the Lishna Kama, is a proper Kal va'Chomer, and Bechor is less Kadosh than Shelamim since it does not need Tenufas Chazeh v'Shok, then the Kal va'Chomer should teach that even a Bechor in Eretz Yisrael is considered 'Mamono' since it, too, does not need Tenufas Chazeh v'Shok! (<b>ROSH</b> in the name of the <b>MAHARAM MI'ROTENBURG</b>; <b>SHITAH MEKUBETZES</b> in the name of the <b>ROSH</b> and <b>GILYON</b>)
</p><p>
3. If the Gemara maintains that only a Bechor in Chutz la'Aretz is 'Mamono' since it cannot be offered as a Korban, then instead of saying that a Shelamim is more Kadosh than a Bechor because it requires Tenufas Chazeh v'Shok the Gemara should say that it is more Kadosh than a Bechor of Chutz la'Aretz because it is brought as a Korban, while a Bechor of Chutz la'Aretz is not brought as a Korban at all! (<b>SHITAH MEKUBETZES</b> quoting <b>GILYON</b> and the <b>MAHARI KOHEN TZEDEK</b>; see also <b>TOSFOS RABEINU PERETZ</b>, <b>RASHASH</b>.)
</p><p>
4. If the Kedushah m'Rechem of a Bechor makes it more Kadosh than a Shelamim, then why does the Lishna Kama not use that as a Pircha to its Kal va'Chomer from Shelamim? The Gemara should ask that perhaps a Shelamim is considered 'Mamono' even though it requires Tenufas Chazeh v'Shok, while a Bechor is not considered 'Mamono' because it is Kadosh m'Rechem! (<b>ROSH</b> in Shitah Mekubetzes)
</p><p>
5. if Aba Yosi is saying that a Bechor in Chutz la'Aretz is the property of its owner, then how can the Lishna Basra say that Shelamim is certainly the property of its owner since it is not Kadosh m'Rechem? Even if it is not Kadosh m'Rechem, it is more Kadosh than a Bechor in Chutz la'Aretz since it is offered as a Korban upon the Mizbe'ach! (<b>RABEINU PERETZ</b>, <b>RASHASH</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SHITAH MEKUBETZES</b> cites the <b>GILYON</b> who answers the first question, why the Gemara does not explain that Ben Azai means to exclude a Bechor in Eretz Yisrael, which is not 'Mamono,' by explaining that the wording of Ben Azai implies that he intends to exclude a particular Korban which, under <i>all</i> circumstances, is not 'Mamono.' A Bechor is the property of its owner when born in Chutz la'Aretz but not when born in Eretz Yisrael, and therefore Ben Azai cannot be trying to exclude Bechor.
</p><p>
The <b>TALMIDEI RABEINU YISRAEL</b> in the Shitah Mekubetzes write a similar answer. They add that this is also why the Gemara does not say that Ben Azai is trying to exclude the actual Chazeh v'Shok of a Shelamim, which certainly are the property of 'Gavoha.'
</p><p>
The second, third, and fourth questions answer each other, as the Gilyon in the Shitah Mekubetzes explains (see also <b>PEROS YOSEF</b>). When the Gemara says that a Bechor is less Kadosh than a Shelamim, it refers specifically to a Bechor in Chutz la'Aretz. The fact that it is not able to be sacrificed and brought upon the Mizbe'ach offsets the Chumra of Kadosh m'Rechem, such that it can be called 'less Kadosh' than a Shelamim which requires Tenufas Chazeh v'Shok and which is offered upon the Mizbe'ach. This also seems to be the intention of <b>RASHI</b> (DH Bechor Miba'i) who points out that this Kal va'Chomer was stated only with regard to a Bechor in Chutz la'Aretz, which is not offered on the Mizbe'ach.
</p><p>
This answers the second question. A Bechor in Eretz Yisrael indeed is more Kadosh than a Shelamim since it is Kadosh m'Rechem and because it is sacrificed.
</p><p>
This answers the third question as well. The Gemara does not write that the reason a Bechor is less Kadosh is that it is not sacrificed because that Kula is offset by the Chumra that it is Kadosh m'Rechem.
</p><p>
This also answers the fourth question. The reason why the Gemara does not challenge the Kal va'Chomer by pointing out that a Bechor should be more Kadosh than a Shelamim because it is Kadosh m'Rechem is that the Bechor under discussion is a Bechor in Chutz la'Aretz which cannot be sacrificed, and that factor counterbalances the Chumra of Kadosh m'Rechem.
</p><p>
The fifth question involves the Gemara's Lishna Basra (Ravina). How can Ravina make a Kal va'Chomer to show that Shelamim is less Kadosh than a Bechor if the Bechor under discussion is a Bechor in Chutz la'Aretz which is not brought as a Korban, while a Shelamim <i>is</i> brought as a Korban? Shelamim should be more Chamur, as the Lishna Kama itself says!
</p><p>
The <b>TALMIDEI RABEINU PERETZ</b> answer that the Lishna Basra is not explaining Rebbi Yosi ha'Glili in the same manner that the Gemara earlier did. Rather, the Lishna Basra is assuming that Rebbi Yosi ha'Glili considers even a Bechor in Eretz Yisrael to be 'Mamono,' the property of its owner. Consequently, Ben Azai is discussing a Bechor in Eretz Yisrael which <i>is</i> brought as a Korban, and since it is Kadosh m'Rechem it indeed is more Kadosh than a Shelamim which is not Kadosh m'Rechem (even though a Shelamim requires Tenufas Chazeh v'Shok). 
</p><p>
How can we assert that Ravina is arguing with the previous Gemara, when it was Ravina himself (12b) who stated that Rebbi Yosi ha'Glili is discussing a Bechor in Chutz la'Aretz?
</p><p>
The <b>TALMIDEI RABEINU PERETZ</b> answer that there are two different Amora'im with the name Ravina. (See also Shitah Mekubetzes to Beitzah 17a.) 
</p><p>
In summary, according to Rashi the Lishna Kama maintains that only a Bechor in Chutz la'Aretz is 'Mamono,' while the Lishna Basra (Ravina) maintains that even in Eretz Yisrael a Bechor is considered 'Mamono.' 
</p><p>
(b) The <b>ROSH</b> in the name of the <b>MAHARAM MI'ROTENBURG</b>, and the <b>RA'AVAD</b> in the Shitah Mekubetzes, say exactly the opposite. They answer the first three questions by explaining that the Lishna Kama <i>argues</i> with Ravina and explains that Rebbi Yosi ha'Glili considers even a Bechor in Eretz Yisrael to be 'Mamono.' That is why the Gemara does not suggest that Ben Azai is excluding a Bechor in Eretz Yisrael from being 'Mamono'; the Kal va'Chomer the Gemara states indeed <i>does</i> teach that a Bechor in Eretz Yisrael is considered 'Mamono' because it does not require Tenufas Chazeh v'Shok, and is less Kadosh than Shelamim. 
</p><p>
With regard to the third question, why the Gemara does not mention that a Bechor is less Kadosh because it cannot be sacrificed, this question is not a question if the Gemara is discussing a Bechor in Eretz Yisrael, which <i>can</i> be sacrificed.
</p><p>
The fourth question was why the Gemara does not suggest that Bechor is <i>more</i> Kadosh than Shelamim because it is Kadosh m'Rechem, and why the Gemara does not ask this as a Pircha on the Kal va'Chomer (this question is what forced Rashi to explain that the Lishna Kama <i>does</i> agree with Ravina and is discussing a Bechor in Chutz la'Aretz). The Rosh writes that the Gemara does not mean to present an absolute Kal va'Chomer. Rather, it seeks to compare Bechor and Shelamim and to determine which of the two is slightly more Chamur than the other. The verse that teaches that Korbanos are 'Mamono' does not specify <i>which</i> Korbanos are considered 'Mamono,' and therefore the Gemara seeks to determine which Korbanos are 'Mamono' based on logical considerations. The Lishna Kama maintains that if logic dictates that a Shelamim is 'Mamono' even though it requires Tenufas Chazeh v'Shok, a Bechor should also be 'Mamono' since the Kedushah m'Rechem will not make it more Kadosh than something that requires Tenufas Chazeh v'Shok.
</p><p>
Ravina, who explains (12b) that Rebbi Yosi ha'Glili is discussing a Bechor in Chutz la'Aretz, is consistent with his own reasoning in not accepting the Lishna Kama. He maintains that the fact that a Bechor is Kadosh m'Rechem would make it more Kadosh than a Shelamim, even though the Bechor does not require Tenufas Chazeh v'Shok. Therefore, a Bechor in Eretz Yisrael is not considered 'Mamono.' In the Lishna Basra, Ravina explains that Rebbi Yosi ha'Glili is discussing a Bechor in Chutz la'Aretz, and even a Bechor in Chutz la'Aretz logically is more Kadosh than a Shelamim since its Kedushah is m'Rechem. (This is how he answers the fifth question.)
</p><p>
In summary, according to the Rosh in the name of the Maharam mi'Rotenburg, the Lishna Kama maintains that Rebbi Yosi ha'Glili considers even a Bechor in Eretz Yisrael to be 'Mamono,' while the Lishna Basra maintains that only a Bechor in Chutz la'Aretz is 'Mamono' (the opposite of answer (a)).
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Here, one cannot say that the meat without the 
                    Eimurim caused all the damage!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> If a Korban Todah damaged, we collect from the 
          meat, not from the bread brought with it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The Chidush is in the end of his teaching. The 
          victim eats the meat, and the Miskaper (the one obligated 
          to offer the Korban, i.e. the damager) brings the bread.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> This is also obvious!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that since the Korban is 
          invalid without the bread, the one who will eat the meat 
          must bring the bread. He teaches that this is not so. The 
          bread is the obligation of the owner of the Korban.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>FOR WHICH PROPERTY MUST DAMAGES BE PAID?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Property of members of the covenant.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What does this come to exclude?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It need not exclude Nochrim. A later Mishnah 
               exempts the ox of a Yisrael that gores the ox of a 
               Nochri!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> That Mishnah explains our Mishnah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Specific property.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What does this come to exclude?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> It excludes when we do not 
          know which animal damaged.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> A later Mishnah teaches that two oxen 
               of two men were chasing an animal, and we do not 
               know which damaged it, they are exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> That Mishnah explains our Mishnah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> It excludes Hefker property.
<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 a man's ox gored a Hefker ox, surely he is 
                    exempt. No one can ask him to pay!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, a Hefker ox gored a man's ox.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> He can take the ox that damaged!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, someone else took it before 
               the victim.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3 (Ravina):</font></b> If Reuven's ox damaged, and Reuven 
          made it Hekdesh or Hefker, he is exempt.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support (Beraisa - R. Yehudah):</font></b> Even if the owner made 
          his animal Hekdesh or Hefker after it damaged, he is 
          exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We learn from 'the owner was warned, and it 
               killed' - the killing and bringing to trial must 
               like one (the animal had one owner the entire time).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Is this enough? We should also require 
               the final verdict in the same status - 'the ox will 
               be stoned' is the final verdict!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Correction:</font></b> Indeed, the killing, bringing to 
               trial and final verdict must like one.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHERE IS ONE LIABLE FOR DAMAGE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Except in the premises of the damager.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	This is because he can say 'your ox had no right to be 
          on my property.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> ...And the joint property of the damager and 
          victim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> One is liable for Shen and Regel in the 
          joint property of the damager and victim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah means 'except in the premises of the 
               damager (where he is exempt). In the joint property 
               of the damager and victim, when he damages, he must 
               pay.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> One is exempt for Shen and Regel in the 
          joint property of the damager and victim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah means 'except in the premises of the 
               damager, or in the joint property of the damager and 
               victim (where he is exempt). 'And when he damages, 
               he must pay' comes to include Keren.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	This is like Shmuel (who says that Keren was not yet 
          mentioned in the Mishnah. 'Ox' refers to Regel);
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Rav says that 'ox' includes all damages of an 
          ox. What does 'when he damages, he must pay' come to 
          include?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'When he damages, he must pay' comes 
          to include a Shomer Chinam, a borrower, a Shomer Sachar, 
          and a renter, when an animal in their Reshus damaged 
          (this will be explained);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Tam pays half-damage, a Mu'ad pays full damage.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the wall broke down at night, or robbers made 
               an opening and the animal went out and damaged, the 
               Shomer is exempt.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What case does this discuss?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The lender's animal damaged the 
               borrower's animal (and the lender must pay).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rejection:</font></b> Had it damaged someone else's animal, the 
               borrower would have needed to pay (for not guarding 
               it properly). Should the lender pay for damage to 
               the borrower's animal?!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, the borrower's animal damaged the 
          lender's animal.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection:</font></b> Had another's animal damaged the lender's 
          animal, the borrower would have had to pay full damage. 
          If the borrower's (Tam) animal did the damage, should he 
          pay only half-damage?!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really the lender's animal damaged the 
          borrower's animal. The case is, the borrower accepted 
          only to guard the lender's animal from being damaged, but 
          not from damaging.
<br>

sjt:
<p>
<font><b>2) AN OX THAT GORED AND THEN BECAME 'HEKDESH' OR 'HEFKER'</b></font><b>
<br>OPINIONS:</b> Ravina cites a Beraisa in which Rebbi Yehudah teaches that if one's Shor gored and killed a person, and before the Gemar Din the owner was Mafkir or Makdish his Shor, the owner is exempt from paying for the damages. This is derived from a Derashah from the verse, 'v'Hu'ad bi'Va'alav... v'Hemis Ish' (Shemos 21:29), which teaches that both the Negichah and the passing of the verdict in court must occur when the Shor is in the same state, under the same ownership ('Shavin k'Echad').
</p><p>
Rebbi Yehudah discusses the Halachah only in the case of an owner who was Mafkir or Makdish his animal after it gored. What is the Halachah in a case in which the owner <i>sells</i> the animal to someone else after it gored?
</p><p>
(a) The <b>RASHBA</b>, <b>NIMUKEI YOSEF</b>, <b>RAMBAM</b> (Hilchos Nizkei Mamon 8:4) and all of the other Rishonim say that the exemption of Rebbi Yehudah applies only when the owner was Mafkir or Makdish the animal. If he sold the animal to someone else, the Negichah and Gemar Din are still considered to be 'Shavin k'Echad' since the Gemar Din took place while the animal had an owner. As long as the animal had an owner and was not ownerless, it makes no difference who the owner was in order for the owner at the time of the damage to be obligated to pay. That is why Rebbi Yehudah mentions that the owner is exempt only when he was Mafkir or Makdish the animal before the Gemar Din, such that it had <i>no</i> owner.
</p><p>
(b) However, <b>RASHI</b> (DH li'Me'utei, DH v'Hu'ad, DH Shavin) writes that the animal must have the <i>same</i> owner until the Gemar Din, according to Rebbi Yehudah, in order to be obligated to pay. This implies that if the animal was sold to someone else before the Gemar Din, neither owner has to pay. Rashi states this more clearly later (44b, DH Im Ad, and 98a, DH Machur), as the <b>LECHEM MISHNEH</b> (Hilchos Nizkei Mamon 8:4) and the <b>GILYON HA'SHAS</b> (90b) point out (see also <b>RASHASH</b> here). 
</p><p>
The <b>NETZIV</b> points out that Rashi's source might be from the fact that Rebbi Yehudah cites the verse, 'v'Hu'ad bi'Va'alav.' According to the other Rishonim, the Derashah is actually from the end of the verse, from the words, 'ha'Shor Yisakel v'Gam Be'alav Yumas' -- 'the Shor shall be stoned and also its owner shall die,' implying that there <i>was</i> an owner at the time that it was put to death, and that the Shor was not made Hefker or Hekdesh, as <b>TOSFOS</b> (DH she'Ne'emar) writes. Why, then, does Rebbi Yehudah quote the earlier verse?
</p><p>
According to Rashi, Rebbi Yehudah needs to cite the verse of 'v'Hu'ad b'Va'alav' in order to show that the owner at the time of the Negichah was also the owner at the time of the Sekilah of the Shor (see Rashi DH v'Hu'ad).
</p><p>
According to Rashi, why does Rebbi Yehudah say only that the verse exempts the owner from payment when he is Mafkir or Makdish the animal? He should be exempt even if he sold it!
</p><p>
Perhaps Rebbi Yehudah mentions Hekdesh and Hefker since the Beraisa here and the Tosefta (4:6) record this Halachah of Rebbi Yehudah as a sequel to the Halachah which he teaches in the Mishnah later (44b). Rebbi Yehudah teaches there that if the Shor that gored was Hefker or Hekdesh at the time that it gored, it is exempt from Misah and is not killed. Rebbi Yehudah now adds that if the Shor is Hefker or Hekdesh at the time of the Gemar Din, its [former] owner is also exempt from paying. Since, with regard to <i>Misas ha'Shor</i> Rebbi Yehudah mentions Hefker and Hekdesh (because selling the ox before the Gemar Din does not exempt the Shor from Misah), he continues to discuss a Shor of Hefker and Hekdesh even though his Halachah (that the owner is exempt from payment) applies equally to a Shor that was sold.
</p><p>
Alternatively, Rebbi Yehudah mentions only a Shor that was made Hefker or Hekdesh in order to teach an additional Chidush: If the former owner is exempt from payment even when he was the ox's only owner (since Hekdesh and Hefker is akin to being ownerless), certainly he is exempt when he sells it to someone else, in which case the Shor has two owners (the former owner and the present owner).
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LIABILITY IN JOINT PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> If the wall broke down at night, or 
          robbers made an opening and the animal went out and 
          damaged, the Shomer is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Inference):</font></b> Had the wall broken down during the 
               day, he would be liable. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b>If he did not accept to guard it from damaging, he 
               should be exempt!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The Seifa teaches that if the Shomer accepted 
          to guard the animal from damaging, he is liable. If the 
          wall broke down at night, or robbers made an opening and 
          the animal went out and damaged, the Shomer is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Beraisa #1):</font></b> One is liable for Shen and Regel 
          in joint property or an inn!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This refutes R. Elazar (who exempts for Shen and 
               Regel there - 13b)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Tana'im argue about this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #2 - R. Shimon ben Elazar):</font></b> There are 
               four general rules in damages: 
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In the property of (only) the victim, one is 
                    liable for everything;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  In the property of (only) the damager, one 
                    is exempt for everything;
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  In the property of the victim and damager, 
                    such like a joint yard or a valley, one is 
                    exempt for Shen and Regel, and liable for Keren 
                    and its Toldos. A Tam pays half-damage, and a 
                    Mu'ad pays full damage.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b>  In property not of the victim and damager, 
                    such a yard that is not of both of them or a 
                    valley, one is liable for Shen and Regel. For 
                    Keren and its Toldos, a Tam pays half-damage, 
                    and a Mu'ad pays full damage.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Contradiction:</font></b> Beraisa #2 exempts for Shen and 
               Regel in a joint yard or a valley. Beraisa #1 
               obligates for these!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'>Answer:</font></b> In Beraisa #2, the case is, they both have 
               rights to use the yard for fruit and animals;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In Beraisa #1, they may use it only for Peros. 
                    Regarding Shen, it is like the victim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Support:</font></b> Presumably, the joint yard is like the case it 
          is taught with. In Beraisa #1, it is like an inn (where 
          people do not bring animals). In Beraisa #2, it is like a 
          valley (where people bring animals).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> If both may put Peros in the yard, 
          this is not considered 'it consumed in another's field'!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> Since he may not bring animals there, 
          it is considered another's field.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (R. Acha mi'Difti):</font></b> Just like the Tana'im 
          don't argue, perhaps also the Amora'im don't argue!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Ravina):</font></b> This is correct!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Alternatively, we can say that they argue. 
          R. Elazar holds like R. Zeira (if the damager can bring 
          fruit there, it is not called another's field), and Rav 
          Chisda holds like Abaye.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>FOUR GENERAL RULES ABOUT PAYMENT FOR DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Shimon ben Elazar):</font></b> There are four 
          general rules in damages. In the property of (only) the 
          victim, one is liable in all.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Inference:</font></b> It says in all, not for all. This implies 
          that it pays full damage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like R. Tarfon, who says that Keren pays 
               full damage in the victim's Reshus.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> In Reshus not of the victim and 
          damager, such a yard that is not of both of them, or a 
          valley, one is liable for Shen and Regel.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What does 'Reshus not of the victim and 
               damager' mean?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> It belongs to someone else.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> The Torah obligates only when 
                    'it consumed in another's field', i.e. the 
                    Peros of the field's owner!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it is not of both of them, only 
               of one (the victim). The Mishnah continues, for 
               Keren and its Toldos, a Tam pays half-damage, and a 
               Mu'ad pays full damage.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is like Chachamim, who say that Keren pays 
                    half-damage in the premises of the victim!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Summation of question):</font></b> Can the Reisha be like 
               R. Tarfon, and the end as Chachamim?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Shmuel):</font></b> Yes!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Ravina):</font></b> The entire Beraisa is like R. 
          Tarfon;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Seifa says, it is 'Reshus not of the victim 
               and damager' (rather, only of the victim) regarding 
               Peros;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Both are allowed to bring their animals in.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Regarding Shen, it is the Reshus of the victim. 
                    Regarding Keren, it is like a Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, R. Shimon ben Elazar only gave three 
          general rules, not four (since the last rule is already 
          known from the previous rules)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Nachman bar Yitzchak):</font></b> He gives three rules 
          in four places.
<br>
<br>

sjt:
<font><b>1) THE DOMAIN OF THE 'NIZAK'</b></font><b>
<br>QUESTION:</b> The Beraisa lists four categories of Halachah concerning Shen, Regel, and Keren: a Reshus which belongs to the Mazik (Reshus ha'Mazik), a Reshus which belongs to the Nizak (Reshus ha'Nizak), a Reshus which belongs to both the Mazik and the Nizak, and a Reshus which belongs to neither the Mazik nor the Nizak. The Gemara explains that the Reshus which belongs to both of them refers to a Chatzer into which they both have permission to bring their oxen or their fruits, such as a valley ('Bik'ah'). In such a place, one is exempt for damages of Shen v'Regel, and one is obligated to pay Chatzi Nezek for damages of Keren (Tamah). The reason one is exempt for Shen v'Regel in such a Chatzer is that it is considered like Reshus ha'Rabim, since the Mazik had permission to bring his Shor there. (See Rashi DH ud'Rav Yosef. The Rishonim explain that this is the logic behind the Halachah that one is exempt for Shen v'Regel in Reshus ha'Rabim. In a place where one's Shor is permitted to walk, he does not have to 'hold on to its legs' and walk behind it to make sure that it does not trample the property of others (see Gemara 19b). Rather, people grant each other permission to walk their animals in a normal manner through public places, and they take responsibility to watch their items so that they should not be damaged by another person's Shor. See Rosh 1:1, and Shitah Mekubetzes 16a, 'veha'Nachash,' in the name of Gilyon.)
</p><p>
The Gemara asks what the Beraisa is referring to when it mentions a Reshus that belongs to neither of them, in which one is obligated for Shen v'Regel and one is obligated for Chatzi Nezek for Keren Tamah. The field must belong to the Nizak, since the Beraisa teaches that one is liable for damages of Shen v'Regel in such a field, and the law is that one is liable for Shen v'Regel only in the Chatzer of the Nizak.
</p><p>
Ravina explains that the Beraisa is referring to a Reshus that does not belong to both of them, but rather belongs to only one of them, the Nizak, with regard to placing Peros there. Both the Mazik and the Nizak, however, have permission to bring their oxen into the Chatzer. Since the Mazik does not have Reshus to bring his fruit there, it is considered Chatzer ha'Nizak with regard to Shen v'Regel, and thus the Mazik is liable. Since he <i>does</i> have permission to bring his <i>Shor</i> there, it is considered Reshus ha'Rabim with regard to Keren, and therefore he pays only Chatzi Nezek for Keren Tamah (even according to Rebbi Tarfon).  
</p><p>
Why does Ravina consider such a Chatzer to be a Chatzer ha'Nizak with regard to Shen? As mentioned earlier, when a Shor does damage in a Bik'ah, what makes the owner exempt from Shen v'Regel is the fact that his Shor is permitted to be in the field. Wherever his Shor is permitted to walk, he does not have to 'hold on to its legs' and walk behind it to make sure that it does not trample the property of others (see Gemara 19b). Therefore, in a Chatzer where both the Mazik and Nizak have permission to bring their oxen, the Mazik should be exempt from Shen v'Regel even though he cannot bring his fruit there! (<b>TOSFOS</b> DH Lo)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU TAM</b> emends the Girsa in the Gemara (and also the Gemara at the beginning of 16a) because of this question. He explains that the fourth case of the Beraisa is a Chatzer into which <i>neither</i> the Mazik nor the Nizak has permission to bring his Shor. (With regard to bringing their Peros there, Rabeinu Tam preserves the Girsa of our text, that only the Nizak has permission to bring his fruit there.)
</p><p>
Since the Mazik does not have permission to bring his Shor there, he is liable for Shen v'Regel, exactly as explained in the question above. Since the Nizak does not have permission to bring <i>his</i> Shor into that Chatzer, that Chatzer does not have the Chumra of Reshus ha'Nizak with regard to Keren, according to Rebbi Tarfon (when the Shor of the Mazik damages the Shor, and not the Peros, of the Nizak), and therefore one pays only Chatzi Nezek for damage done by his Shor Tam.
</p><p>
According to this Girsa, why does the Gemara explain that only the Nizak has permission to bring his Peros into the Chatzer? That is irrelevant; what matters is whether the Mazik or Nizak has permission to bring his <i>Shor</i> there! Even if both of them have permission to bring fruit there, the Mazik should be liable for Shen v'Regel since he cannot bring his ox there. Rabeinu Tam answers that Ravina wanted to explain the Beraisa even according to the opinion of Rebbi Zeira, who argues with what the above explanation and maintains that if the Mazik shares the Reshus with regard to putting Peros there, he is exempt from Shen v'Regel, even though he has no permission to bring his Shor there. Although the Gemara earlier refuted Rebbi Zeira's opinion, Ravina did not want the Beraisa to be a disproof to Rebbi Zeira.
</p><p>
The <b>RA'AVAD</b> in the Shitah Mekubetzes cites a third Girsa in which the Gemara explains that the fourth case of the Beraisa is a Chatzer which belongs to neither the Mazik nor the Nizak with regard to putting their Peros there <i>and</i> for putting their oxen there. Why, then, is it considered a Chatzer ha'Nizak to obligate the Mazik for Shen v'Regel? The answer is that both the Nizak and the Mazik have permission to use the Chatzer for <i>other</i> uses, such as to sit in the Chatzer. This solves not only the problem that Rabeinu Tam had with his explanation (the Gemara indeed does not limit the ownership, with regard to other uses, to the Nizak and not to the Mazik), but it also explains why the Beraisa calls this Chatzer 'neither his (the Nizak's) nor his (the Mazik's),' instead of calling it 'a jointly-owned Chatzer.' According to Rabeinu Tam (and according to the Girsa of our text), the Chatzer <i>does</i> belong to one of them with regard to Peros, and thus the Beraisa should call it a 'Chatzer that is not jointly-owned' rather than a Chatzer that belongs to neither. According to the Ra'avad, the Chatzer indeed belongs to neither of them with regard to both Peros and oxen.
</p><p>
(b) <b>RASHI</b>, however, records the Girsa as it appears in our text, that the Chatzer <i>is</i> jointly owned with regard to bringing oxen there, and, nevertheless, the Mazik is liable for Shen v'Regel. How is this to be reconciled with the Gemara earlier that teaches that the Mazik is exempt from Shen v'Regel if his Shor damages the Nizak's fruits in a Bik'ah since he is permitted to bring his Shor there?
</p><p>
1. The <b>TOSFOS HA'ROSH</b>, cited by the Shitah Mekubetzes, answers that according to Rashi two requirements are necessary in order to give a Chatzer the status of a Reshus ha'Rabim with regard to Shen v'Regel. The first requirement is that the Mazik must have permission to bring his Shor there. The second is that the Chatzer must belong to the Mazik with regard to Peros as well. If the field does not belong to the Mazik, either for bringing his Shor there or for placing his Peros there, it is still considered 'Sdeh Acher' (the Nizak's field). A Bik'ah is considered Reshus ha'Rabim since the Mazik may bring both his oxen and Peros there. The fourth case of the Beraisa, however, is not considered Reshus ha'Rabim with regard to Shen, even though the Mazik is permitted to bring his Shor there, since the Mazik cannot bring his Peros there and therefore it is still called 'Sdeh Acher.' 
</p><p>
(Rebbi Zeira, who argues with this point earlier in the Gemara, maintains that a 'Sdeh Acher' is defined only by ownership with regard to <i>Peros</i>. Even if the Mazik does not have permission to bring his Shor there, as long as he has permission to bring his Peros there it is not considered 'Sdeh Acher' and the Mazik is exempt from Shen v'Regel. According to this answer, and according to Rebbi Zeira, the reason why one is exempt for Shen v'Regel in Reshus ha'Nizak is simply due to a Gezeiras ha'Kasuv that teaches that the Torah 'had mercy on him' and exempted him in some cases, as the Tosfos ha'Rosh writes in Kesuvos 41a.)
</p><p>
2. The <b>NIMUKEI YOSEF</b>, and the <b>SHITAH MEKUBETZES</b> in the name of <b>TALMIDEI RABEINU YISRAEL</b>, explain that since the Nizak has permission to bring fruits into the Chatzer while the Mazik does not, whenever the Nizak has fruits in the Chatzer the Mazik may not bring his Shor there. He has permission to bring his Shor there only when the Nizak has no fruit in the Chatzer. This is why the Beraisa teaches that the Mazik is liable for Shen v'Regel even though he has permission to bring his Shor into the field; at the time the fruit which the Shor damaged were in the field, the Shor was not supposed to be there.
</p><p>
According to this explanation, whether or not a field is a Reshus ha'Rabim with regard to Keren depends entirely on whether or not the Mazik had permission to bring his Shor into the field at the time the damage was done. 
</p><p>
3. Ravina here is quoting Rava. Perhaps Rava agrees with Rebbi Zeira that the definition of a Reshus ha'Nizak with regard to Shen v'Regel depends entirely on who has permission to put Peros there. Ravina himself, who maintains that the definition of Reshus ha'Nizak with regard to Shen v'Regel depends on whether the Mazik has Reshus to bring his Shor there, would not agree with Rava's explanation of the Beraisa and thus would explain the Beraisa the way the Gemara originally suggests (that the Reisha expresses the view of Rebbi Tarfon, and the Seifa expresses the view of the Rabanan).
</p><p>


lvr: 41
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WE EVALUATE THE DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> An evaluation of money, Shavah Kesef, in 
          front of Beis Din, and according to witnesses (the entire 
          Mishnah will be explained below);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Free men, members of the covenant, and women are 
          included in damages;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The victim and damager are involved in payments.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What does 'an evaluation of money' 
          refer to?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> The evaluation (of damage) is 
          made in money.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Our Mishnah teaches like the following Beraisa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a cow damaged a cloak or was 
               damaged by it, we do not say that the victim 
               receives the damager. Rather, we evaluate the 
               damage. (Tosfos, and Rashi according to the Bach.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>CONDITIONS TO PAY DAMAGES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Shavah Kesef.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Shavah Kesef' teaches that Beis Din 
          collects only if the damager has land (this will be 
          explained);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the victim seized Metaltelim, Beis Din 
               collects the damages from them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> How does 'Shavah Kesef' teach that Beis Din 
          collects only if the damager has land?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rabah bar Ula):</font></b> It is something Shavah 
          (worth) all the money you pay for it, i.e. there is no 
          law of Ona'ah (returning what one overcharged). This 
          refers to land.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> Ona'ah does not apply to slaves and 
          documents, either!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rabah bar Ula):</font></b> Rather, it is something that 
          can be acquired through money.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> Also slaves and documents can be acquired 
          through money!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi):</font></b> It is Shavah Kesef, but not money 
          itself;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Everything except land is considered money, for 
               it can be taken elsewhere and sold.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Yehudah bar Chinena):</font></b> Our Mishnah teaches 
          'Shavah Kesef', i.e. Beis Din collects only if the 
          damager has land;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Beraisa):</font></b> 'He will return' teaches 
               that (anything) worth money may be given, even bran.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Huna brei d'Rav Yehoshua):</font></b> We collect from 
          orphans only if they inherited land. (From the damager 
          himself, we collect from anything.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> If the victim seized Metaltelim, Beis 
          Din collects the damages from them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>If he seized from orphans, why does he collect?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> We answer like Rava said (elsewhere). The case 
          is, he seized Metaltelim in the life of the damager.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> In front of Beis Din...
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	This excludes one who sold his property before going to 
          Beis Din.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> May we infer that if a borrower sold his 
          property before going to Beis Din, Beis Din will not 
          collect from the sold property?!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, the Mishnah teaches that only a 
          Beis Din of experts may judge damages.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> According to witnesses...
<br> <b>    <b><font color='darkgreen'>(r)</font></b></b>  	This excludes one who admits to a fine, and witnesses 
          came later. Such a person is exempt.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Question:</font></b> This is like the opinion that if one admits 
          to a fine, and later witnesses come, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that one is liable in 
               this case, what does the Mishnah teach?
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LAWS OF COLLECTING DAMAGES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer:</font></b> The Chidush is the Reisha, which says 'free 
          men, members of the covenant.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Free men' excludes slaves. 'Members of the 
               covenant' excludes Nochrim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Mishnah needed to teach about both.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had it taught only about slaves, one might have 
                    thought that this is because they have no 
                    lineage, but Nochrim have lineage, so they 
                    collect damages;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Had it taught only about Nochrim, one might 
                    have thought that this is because they have 
                    only seven Mitzvos, but slaves have Mitzvos 
                    (that women have), so they collect damages.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Women are included in damages.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> 'A man or woman who will do any 
          sin' equates men and women for all punishments;
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(D'Vei R. Elazar):</font></b> 'These are the Mishpatim (laws) that 
          you will put in front of them' equates men and women for 
          all Dinim (monetary laws);
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(D'Vei Chizkiyah):</font></b> 'And (an ox) will kill a man or 
          woman' equates men and women regarding death.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	The Torah needed to teach all of these:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it taught only about punishments, one might 
               have thought that this is so she will get atonement, 
               but (monetary) judgments are for men;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it taught only about Dinim, one might have 
               thought that this is so she can do business and earn 
               a living, but only men get punishments for 
               atonement, for they are obligated in all the 
               Mitzvos;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Had it taught only about these two, one might 
               have thought that this is for atonement and 
               business, but Kofer (ransom to atone for one whose 
               animal killed someone) would apply only to a man 
               (who was killed);
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Had it taught only about Kofer, one might have 
               thought that this is because a life was lost, but in 
               other cases, women are not like men.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IS HALF-PAYMENT FOR THE DAMAGE OF A TAM A FINE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The damager and victim both participate in 
          payments.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> A Tam that pays half-damage is Mamon (a 
          proper obligation. It is not a fine.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Huna brei d'Rav Yehoshua):</font></b> It is a fine.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Papa holds that oxen are not considered 
               guarded. Really, the owner should pay full damage;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Torah was lenient, because he was not yet 
                    warned to guard it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Huna brei d'Rav Yehoshua holds that oxen are 
               considered guarded. Really, the owner should be 
               exempt;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Torah fined him, to encourage him to guard 
                    his ox.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The damager and victim are both involved in 
          payments.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> This is like the opinion that half-damage is 
          Mamon. The victim loses half of what he deserves.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that it is a fine, the 
               victim receives what he does not deserve. Can we say 
               he participates in the payments?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah refers to the decrease in value of 
          a carcass, which the victim suffers.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> A previous Mishnah already taught this! 
          'Payments of damage' teaches that the victim deals with 
          the carcass!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah teaches this about a Tam, and about 
          a Mu'ad. It needs to teach about both.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it taught only about a Tam, one might have 
               thought that because the damager was not yet warned 
               to guard his ox, the Torah did not make him lose the 
               decreased value of the carcass (but regarding a 
               Mu'ad, he would lose this);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it taught only about a Mu'ad, one might have 
               thought that because he pays full damage, the Torah 
               does not make him suffer the decrease in value of 
               the carcass (but for a Tam, he does).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The difference between Tam and Mu'ad, is 
          that a Tam pays half-damage (up to) its own value, and a 
          Mu'ad pays full damage, even above its own value.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If half-damage is a fine, the Mishnah should 
          also say that a Tam does not pay due to the owner's 
          admission!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The Tana did not list all differences.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Surely, he did not omit only one thing. What 
          else did he omit?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> He omitted that only a Mu'ad pays Kofer.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Objection:</font></b> (Perhaps) our Mishnah is like R. Yosi 
          ha'Glili, who says that a Tam pays half-Kofer!
<br>
<br>

sjt:
<font><b>1) 'VEHA'NIZAK VEHA'MAZIK B'TASHLUMIN'</b></font><b>
<br>QUESTION:</b> The Gemara is bothered by the wording of the Mishnah (14b), 'veha'Nizak veha'Mazik b'Tashlumin,' which implies that the Nizak helps the Mazik pay him. In what way does he help? The Gemara explains that according to the opinion that Chatzi Nezek is 'Mamon,' he helps the Mazik by relinquishing half of the value of the damages which the Mazik otherwise would have to pay. According to the opinion that Chatzi Nezek is 'Kenas,' the Nizak helps the Mazik pay by absorbing the loss if the carcass of the dead ox decreases in value before the case comes to court.
</p><p>
Can these words of the Mishnah be read in a straightforward, simple way?
</p><p>
<b>ANSWER:</b> The <b>VILNA GA'ON</b> (Bi'urei ha'Gra on the Mishnah) suggests an ingenious interpretation of the Mishnah which explains the simple meaning of the wording of the Mishnah.
</p><p>
He explains that the words 'veha'Nizak veha'Mazik' belong with the preceding words and not with the following word, 'b'Tashlumin.' The Mishnah thus reads, 'Woman are included in the [laws of] Nezek, and the Nizak, and the Mazik.' The Mishnah is teaching that women are the same as men with regard to Nezikin in three ways. First, women are included in the general category of Nezek, such that if an ox harms a man's wife the owner of the ox must pay the husband just as he would have to pay had the ox gored the husband himself. 
</p><p>
'Veha'Nizak' means that if the woman is not married and an ox gores her ox, then the owner of the Shor ha'Mazik must pay her for her ox, just as he pays when his ox damages a man's ox.
</p><p>
'Veha'Mazik' means that if the woman owns an ox that gores another person's ox, she must pay for the damages just as a man must pay when his ox causes damage. 
</p><p>
Why, then, does the Gemara understand the Mishnah to mean that 'the Nizak is together with the Mazik' with regard to Tashlumin? The Vilna Ga'on explains that the Gemara infers this from an extra word in the Mishnah. The Mishnah should have said simply that 'woman are included in the [laws of] Nezek, and the Nizak, and the Mazik.' Why does it add the word 'b'Tashlumin,' 'with regard to payments,' when it is obvious that the Mishnah is referring to payments?
</p><p>
From this extra word in the Mishnah the Gemara infers that the Mishnah is teaching an additional Chidush -- that the Nizak also is involved in the payments, like the Mazik. 
</p><p>
Perhaps this interpretation also explains why the Gemara cites three verses to teach that women are included in Nezek. 
</p><p>
The first verse, which states that women are like men with regard to all punishments in the Torah, teaches that if her Shor damages someone else's property, she must pay, just like a man.
</p><p>
The second verse, which states that women are like men with regard to all monetary cases (Dinim), teaches that if a woman comes to court with a monetary claim, the court responds to her just as they respond to a man. This teaches that a woman is entitled to the claim of a Nizak, a claimant for damages, just like a man.
</p><p>
The third verse, which states that if a Shor kills a woman the owner must still pay Kofer, teaches that a woman is included in Nezek, and her husband or her heirs must be paid for whatever damages were caused to her.
</p><p>
Why, then, does the Gemara explain the need for each verse with a 'Tzerichusa,' if each one already teaches a different thing? It is because one might have learned one from the other with a Binyan Av, if not for the 'Tzerichusa' that prevents one from learning the Halachos of one verse without the other. (M. Kornfeld)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If one said 'my ox killed Ploni', 
          or 'it killed Ploni's ox', he pays due to his own 
          admission.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This refers to a Tam (this shows that 
               it is Mamon)!
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	Rejection No, it refers to a Mu'ad.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Inference):</font></b> A Tam would not pay due to its own 
          admission.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question (Reisha):</font></b> If one said 'my ox killed Ploni's 
          slave' he does not pay due to his own admission.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If (q) is correct, the Mishnah could have 
               distinguished within the first case. He pays due to 
               his own admission for a Mu'ad, but not for a Tam!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah discusses only a Mu'ad.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IS HALF-PAYMENT FOR THE DAMAGE OF A TAM A FINE? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> The general rule is, any payment more than 
          the damage is not paid due to an admission.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Inference):</font></b> Any payment less than the damage is paid 
          due to an admission.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. The inference is that any payment equal 
          to the damage is paid due to an admission.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Do you say that less than the damage is paid 
          due to an admission?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If so, why did the Mishnah say 'any payment more 
               than the damage is not paid due to an admission?' It 
               should have said 'any payment not equal to the 
               damage is not paid due to an admission', to include 
               more or less!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Huna brei d'Rav Yehoshua is refuted.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	The Halachah is, half-damage is a fine.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> This was refuted. It cannot be the Halachah!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The refutation was because the Mishnah did not 
          say 'any payment not equal to the damage is not paid 
          regarding the person's admission.' The Mishnah could not 
          say this, for it is not always true;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A tradition from Moshe from Sinai teaches that 
               half-damage of pebbles is not a fine.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Since we say that half-damage is a fine, if a dog ate a 
          sheep, or a cat ate a chicken, this is abnormal (hence a 
          Toldah of Keren), so we do not collect it in Bavel (like 
          all other fines).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if it ate a large sheep or chicken. 
               It is normal for them to eat small ones.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	If the victim seized payment, we do not make him return 
          it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	If the victim requested to fix a time to go to Eretz 
          Yisrael to judge the case, we comply. If the damager does 
          not agree, we excommunicate him.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	In any case, we excommunicate him until he removes the 
          damager.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Nasan):</font></b> 'Do not put blood in your 
               house' forbids one to have a wild dog or a rickety 
               ladder in his house.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>TAM AND MU'AD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> There are five Tam damagers, and five Mu'ad 
          damagers:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An animal is not Mu'ad to gore, push, bite, 
               crouch or kick;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shen is Mu'ad to eat food fitting for it. Regel 
               is Mu'ad to break things while it walks;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> A Mu'ad ox; an ox that damages in the victim's 
               premises; and man.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	A wolf, lion, bear, leopard, Bardelus, and snake are 
          Mu'ad;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Elazar says, if they are domesticated, they are not 
          Mu'ad, except for a snake, which is always Mu'ad.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara):</font></b> Since it says that Shen is Mu'ad to eat 
          fitting food, this must be in the victim's premises, and 
          it says that a Tam pays half-damage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Chachamim, who say that Keren pays 
               half-damage in the victim's premises.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The Reisha calls an ox that damages in the 
          victim's premises Mu'ad. This is like R. Tarfon!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Is the Reisha like Chachamim, and the Seifa is 
               like R. Tarfon?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Shmuel):</font></b> Yes!
<br>

sjt:
<p>
<font><b>2) DAMAGE CAUSED BY ONE'S LION</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that a lion, wolf, bear, leopard, and snake are always considered 'Mu'adim' to do damage, unlike Shor and other more docile animals. 
</p><p>
Why are these wild animals different from other animals? According to the opinion (15a) that maintains that the payment of Chatzi Nezek is a Kenas, it makes sense why the Mishnah singles out these animals. The reason the payment of Chatzi Nezek is a Kenas is that a Shor is 'b'Chezkas Shimur,' it is assumed not to do damage and thus the owner should not be obligated to pay. These animals, in contrast, are considered Mu'adim from the start because they are not 'b'Chezkas Shimur'; one must expect them to do damage.
</p><p>
However, according to the opinion that maintains that Chatzi Nezek is Mamon because a Shor is not 'b'Chezkas Shimur' (and thus the owner should have watched his Shor more carefully), what is the difference between these wild animals and an ox? Just as the Torah exempts the owner of an ox from Chatzi Nezek because of a Gezeiras ha'Kasuv, the owner of any of these animals should also be exempt from half of the Nezek because of the same Gezeiras ha'Kasuv!
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (16a, DH veha'Nachash), the <b>ROSH</b>, and <b>RASHBA</b> explain that indeed these animals are Mu'adim only if they damage in the way they normally damage. If they damage in such a way, the owner must pay Nezek Shalem because it is a Toldah of <i>Shen</i>. If they damage in an unusual way, the owner must pay only Chatzi Nezek, and even if they damage in a normal way in Reshus ha'Rabim, the owner will be exempt, as he is exempt for Shen in Reshus ha'Rabim.
</p><p>
(Tosfos points out that when a Nachash kills an animal or walks on it, it should not be considered a Toldah of Shen, since the Gemara in Ta'anis teaches that a Nachash 'does not have Hana'ah from its prey' (since it does not necessarily kill in order to eat). The Gemara earlier (4a) teaches that having Hana'ah from what it damages is one of the defining characteristics of Shen, and therefore any damage that a Nachash does must be a Toldah of <i>Regel</i>. The <b>RASHBA</b> (2b) argues that the damage of the Nachash could also be a Toldah of <i>Shen</i>, since the Nachash does derive Hana'ah from <i>biting</i> and killing what is near it, even though it does not derive Hana'ah by eating it afterwards. According to the Rashba, even a Hana'ah that is not derived from the damage itself, but rather from the act that causes the damage, also puts it into the category of Shen.)
</p><p>
According to this answer, what is the Mishnah teaching? It is obvious that any animal that damages in its normal manner is Shen v'Regel! Moreover, why does the Gemara (16a) ask that the Mishnah should count more than five forms of an animal becoming a Mu'ad, since these animals are also Mu'adim? These animals were already included in the Mishnah when it counted Shen v'Regel as Mu'adim! 
</p><p>
The <b>TOSFOS HA'ROSH</b> answers that the Mishnah is teaching that these animals are even Mu'adim to eat animals that are larger than they. Other animals, in contrast, are Mu'adim only to eat animals that are smaller (as the Gemara says earlier). 
</p><p>
(b) <b>RASHI</b> on the Mishnah (DH Harei Elu Mu'adim) implies that the owner of these wild animals is liable for Nezek Shalem for <i>any</i> damage they cause, even damage that is unusual. This is also the ruling of the <b>RAMBAM</b> (Hilchos Nizkei Mamon 1:6, cited by the Hagahos ha'Gra to 16a), according to the way the <b>TUR</b> (CM 389) understands his ruling .(The <b>MAGID MISHNEH</b>, however, learns that the Rambam rules like Tosfos.) It seems that they maintain that nothing is considered an unusual type of damage for these animals.
</p><p>
The Gemara (16b) seems to support the explanation of Tosfos. Shmuel teaches that if a lion killed another animal and ate it right away ('Toref'), the owner of the lion is liable when the damage was done in Reshus ha'Rabim. If the lion eats an animal live ('Daras') in Reshus ha'Rabim, the owner is exempt because it is an act of Shen in Reshus ha'Rabim. This clearly implies that there is such a thing as an unusual manner of damage for a lion, which is included in the category of Keren, and the owner should have to pay only Chatzi Nezek for such damage since it is unusual for the animal to do it. (Rashi himself writes on 16b, DH Chayav, that even a lion only obligates its owner to pay Chatzi Nezek if it causes damage in an unusual manner.)
</p><p>
The <b>LECHEM MISHNEH</b> (Hilchos Nizkei Mamon 1:6) and the <b>VILNA GA'ON</b> (Hagahos ha'Gra, CM 389:15, 16, 20) explain that the Rambam does not rule like Shmuel (see Hilchos Nizkei Mamon 3:7) because the Gemara asks a number of questions on Shmuel's ruling, and the <b>RIF</b> also omits Shmuel's ruling. This is why the Rambam rules that no damage is considered unusual for these animals.
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>OTHER RESOLUTIONS OF THE MISHNAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #2 (R. Elazar):</font></b> The entire Mishnah is like R. 
          Tarfon. The Reisha discusses a field in which only the 
          victim may leave fruit, and both the victim and damager 
          may have animals;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding Shen, it is like the victim's yard. 
               Regarding Keren, it is like Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection (Rav Zevid of Neharda'a - Mishnah):</font></b> Shen is 
          Mu'ad to eat what is fitting for it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> It is not Mu'ad for something it does not 
               normally eat.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Eating something it does not normally eat is Keren. 
               R. Tarfon obligates full damage in the victim's 
               Reshus!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #3 (Rav Zvid):</font></b> The entire Mishnah is like 
          Chachamim. It is abbreviated, and means as follows. There 
          are five Tam damagers. If they damage repeatedly, they 
          become Mu'ad.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shen and Regel are Mu'ad from the beginning. This 
               is in the victim's premises.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 - Objection (Ravina - a later Mishnah):</font></b> An 
          ox that damages in the victim's premises. What is the 
          case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah would ask 'what is the case' only 
               about something that was already taught! (According 
               to Rav Zvid, the Mishnah did not discuss Keren in 
               the victim's premises.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #4 (Ravina):</font></b> The Mishnah is abbreviated. It 
          means as follows. There are five Tam damagers. If they 
          damage repeatedly, they become Mu'ad;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shen and Regel are Mu'ad from the beginning;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Mu'ad that the Torah mentions is one of the 
               five Tam damagers that damaged repeatedly;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If an ox damaged in the victim's premises, R. 
               Tarfon and Chachamim argue about this;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> There are also other Mu'adim - a wolf, lion, 
               bear, leopard, Bardelus, and snake.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	A Beraisa explains exactly like Ravina.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #2 - Question:</font></b> The Mishnah says that there are 
          (only) five Tamim and five Mu'adim. There are more!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also a wolf, lion, bear, leopard, Bardelus, and 
               snake are Mu'adim!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> The Mishnah is abbreviated. It means 
          as follows. There are five Tam damagers (like he 
          explained in Version #1)... 
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CROUCHING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> An animal is not Mu'ad to crouch...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1 (R. Elazar):</font></b> This refers only to big Kelim. 
          It is normal for it to crouch and break small Kelim.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support (for R. Elazar - Beraisa):</font></b> An animal is Mu'ad 
          to walk and to break and crush people, animals and Kelim. 
          (It crushes small people, animals and Kelim by 
          crouching.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps it crushes them against a wall 
          (without crouching).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2 (R. Elazar):</font></b> It is abnormal to crouch and 
          break not only big Kelim, rather, even small Kelim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> An animal is Mu'ad to walk and to 
          break and crush people, animals and Kelim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (R. Elazar):</font></b> Perhaps it crushes them against a 
          wall.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #3 - Question (Mishnah):</font></b> An animal is not Mu'ad 
          to crouch;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Beraisa):</font></b> ...(It is Mu'ad 
               to)...crush people, animals and Kelim.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Elazar):</font></b> It is Mu'ad to crouch on small 
          Kelim, but not on big ones.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>OTHER MU'AD ANIMALS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A wolf, lion...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is a Bardelus?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yosef):</font></b> It is an Apa (snake?).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Meir):</font></b> (In addition to those of 
          our Mishnah), even a Tzavu'a (hyena?) is Mu'ad; 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>R. Elazar says, even a snake.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> Tzavu'a is an Apa. (R. Meir said 
               that it is not listed in our Mishnah!) 
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Bardelus is Apa, i.e. a female Tzavu'a. R. Meir 
          adds, even a male Tzavu'a. (Some switch the genders.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A male Tzavu'a changes every seven 
               years. It becomes a bat, then a small bat, then a 
               Kimush, then a Chu'ach, then a Shed (demon).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A human spine becomes a snake after seven years 
               if he does not bow at 'Modim'.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Meir):</font></b> (In addition to those of 
          our Mishnah), even a Tzavu'a; 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>R. Elazar says, even a snake.
<br>
<br>

sjt:
<font><b>1) AGADAH: THE SPINE THAT BECOMES A SNAKE</b></font><b>
<br>QUESTION:</b> The Gemara teaches that if a person, during his lifetime, does not bow down at the blessing of 'Modim' in the Shemoneh Esreh, after seven years in the grave his spine turns into a snake (Nachash). (The Girsa of the Tur (OC 121) is 'after seventy years,' meaning after he passes away.) Why is this an appropriate punishment for one who does not bow during Modim?
</p><p>
<b>ANSWER: TOSFOS</b> (16b, DH v'Hu) explains the intent of the Gemara here based on the Gemara in Berachos (12a) which teaches that when a person bows at 'Modim' he should 'straighten himself like a snake' (and bring his head up first). Hence, one who does not bow during 'Modim' is punished measure-for-measure, and his spine becomes a snake.
</p><p>
Why, though, is one required to bow like a stick, and to rise like a snake, during 'Modim'?
</p><p>
The Acharonim explain that the point of 'Modim' is to show one's humility before Hash-m, Who grants a person everything he needs for his daily life. The Gemara in Sotah (9b) teaches that Hash-m originally made the snake the king of the beasts, but the snake was not grateful and it became arrogant and wanted even more. Hash-m punished the snake, saying, 'I originally created you to walk with an upright stature, but now that you did not humble yourself you will walk upon your stomach.' The snake, therefore, is a symbol of the punishment that befalls a person who does not humble himself and does not recognize that everything he has is a gift from Hash-m. When a person bows down, he should bow like a stick, reminding himself that there is a Master in Heaven Whose word he must obey (for a king rules with his stick; see Sotah 40a and Shabbos 52b). 
</p><p>
When a person rises after bowing, he must remember that even when standing erect he should not do so in an arrogant manner. The Gemara here teaches that if a person does not bow during Modim and thereby commits the sin of the Nachash by standing erect and not recognizing Hashem's dominion, after he dies his spine that did not bend will turn into a Nachash. (See <b>MAHARSHA</b>, and <b>MAHARAL</b> in Chidushei Agados and Nesivos Olam, Nesiv ha'Avodah #10). 
</p><p>
(b) The sin of the snake was the sin of Esav, who refused to recognize Hashem's dominion and arrogantly wanted everything for himself (see Rashi to Bereishis 33:9). The Nachash is equated with Esav in Midrashim which associate both of them with Sama'el, the Satan, which causes people to act in denial of Hashem's presence. (See Rashi to Sukah 29a and Sotah 10b; regarding the Nachash, see Zohar, Bereishis 35b.)
</p><p>
<b>TARGUM ONKELUS</b> (Bereishis 25:27) describes Esav as 'Nachash Yarchan' (according to the Girsa of the Ba'alei ha'Tosfos in Pane'ach Raza). This might mean that Esav shared the trait of the Nachash with regard to his 'Yerech,' his thigh. The thigh is the place from which a person begins to bow. Just as the Nachash stood with an erect posture and did not humble itself, Esav, too, did not bow and humble himself to Hash-m. Yakov, who knew this, realized that the way to overcome Esav was by humbling himself and bowing down to Hash-m. That is why, when he met Esav upon his return from Lavan, he greeted his brother by bowing down seven times (see Bereishis 33:3).
</p><p>
Similarly, the Gemara in Kidushin (29b) relates that when Rav Acha bar Yakov was faced with a fearsome Nachash, he vanquished it by bowing down seven times in prayer to Hash-m (see Insights there).
</p><p>
(c) This comparison between Esav and the Nachash lends support to the assertion of the <b>MAHARSHA</b> (Bava Kama 3b) that the four Avos Nezikin correspond to the four exiles. The Maharsha writes that Mav'eh corresponds to Esav, or Galus Edom, according to both interpretations of Mav'eh: if Mav'eh is <i>Adam</i>, it alludes to Esav who is called 'Edom.' If Mav'eh is <i>Shen</i>, it alludes to Esav whose profession is the Cherev (the Maharsha apparently means that the damage of the sword is referred to as eating, as in Yeshayah 1:20). According to the Midrash that compares Esav to the Nachash, Mav'eh alludes to Esav because Esav's poison is that of the snake, which is expressed from its teeth (Bava Kama 23b). The Maharsha adds that the verse the Gemara brings to show that Mav'eh is Shen, 'Eich Nechpesu <i>Esav</i> Niv'u Matzpunav' (Ovadyah 1:6), is a verse that describes Esav. 
</p><p>
Rav Mordechai Aran in <b>NIFLA'OS MI'TORASECHA</b> (Erech Mav'eh) points out that the only place in the Torah in which the word 'Mav'eh' appears as Roshei Teivos (the first letters of four consecutive words) is the verse (Bamidbar 10:9),' v'Chi Savo'u <i>M</i>ilchamah <i>B</i>'Artzechem <i>A</i>l <i>H</i>a'Tzar ha'Tzorer Eschem, va'Hare'osem ba'Chatzotzeros....' Remarkably, this is the same verse that the <b>RAMBAN</b> (Mitzvas Aseh #5) cites as the source in the Torah to pray to Hash-m during a time of trouble, corresponding to the verse of '... Im Tiv'ayun Be'ayu' (Yeshayah 21:12), which the Gemara cites as the source that Mav'eh means Adam <i>who prays to Hash-m</i>!
</p><p>
Rav Aran points out that this explains the appearance of Mav'eh in this verse, according to the opinion that Mav'eh is Shen. It is the Shen of Esav which is the Shen of the Nachash and the Satan. The Zohar (Vayakhel 196b) explains that this verse describes the war against Sama'el, who is defeated by the blowing of the Shofar, 'va'Hare'osem b'Chatzotzeros,' on Rosh Hashanah.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Contradiction (Mishnah - R. Elazar):</font></b> If it (a 
               wolf, lion...) is domesticated, it is not Mu'ad!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Correction:</font></b> The Beraisa should say 'R. Elazar says, 
          (only) a snake is Mu'ad.'
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>HOW LIONS NORMALLY EAT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> If a lion ate from an animal (without killing 
          it) in Reshus ha'Rabim, it is exempt. If it first killed 
          the animal, it is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is exempt for eating without killing, for this 
               is normal. Shen is exempt in a Reshus ha'Rabim;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it first killed the animal, it is liable, for 
               this is abnormal. Keren is liable in a Reshus 
               ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Is it really abnormal for a lion to kill an 
          animal? 'A lion tears (kills) for its cubs'!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> A lion tears for its cubs, but not for itself.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> 'And it chokes (kills prey, and brings it) to 
          female lions.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> It chokes to bring prey to female lions (but 
          not for itself to eat).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> 'And it fills (holes of) its dwelling with 
          torn animals.'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It kills to fill its dwelling, but not to eat 
          immediately.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Also a Chayah (i.e. just like a 
          lion) that entered the victim's premises, tore an animal 
          and ate meat, pays full damage.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, it tore the animal to store it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> It says that it ate meat!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It tore it intending to store it, then it 
               reconsidered and ate it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection #1:</font></b> How would we know this?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection #2:</font></b> Shmuel said that one pays if it 
               kills. He should be concerned lest it tore to store 
               up, then reconsidered!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman bar Yitzchak):</font></b> The Beraisa means 
          that if it tore an animal to store it or it ate meat 
          without killing, it pays full damage.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #3 (Ravina):</font></b> Shmuel discusses a domesticated 
          lion, according to R. Elazar.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> If so, even eating without killing should be 
          considered abnormal!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Correction:</font></b> Ravina did not explain Shmuel. Rather, he 
          meant that the Beraisa discusses a domesticated lion, 
          according to R. Elazar.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> If so, it should only pay half-damage!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, it became Mu'ad.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why was this taught regarding Toldos 
          of Shen? It is a Toldah of Keren!
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  	This is left difficult.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>THE DIFFERENCE BETWEEN TAM AND MU'AD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The difference between Tam and Mu'ad is that 
          Tam pays half-damage mi'Gufo (up to its own value), and 
          Mu'ad pays full damage from the Aliyah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is 'the Aliyah?'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (R. Elazar):</font></b> It is the Me'ulah (best) of the 
          damager's property.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> 'They buried (Chizkiyahu) in Ma'alei 
               of the tombs of the house of David' - near the best 
               of the family, David and Shlomo.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>AGADIC TEACHINGS OF R. ELAZAR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> 'They buried (Asa) in the bed... full of 
          fragrances and Zenim' - what are these?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (R. Elazar):</font></b> They are many types of 
          fragrances.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (R. Shmuel bar Nachmani):</font></b> They are fragrances 
          that incite people to Zimah (immorality).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> 'They dug a pit to trap me' - people 
          suspected Yirmiyahu that sinned with a Zonah;
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Shmuel bar Nachmani):</font></b> They suspected that he sinned 
          with a married woman.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, R. Elazar learns from 'a Zonah is a 
          deep pit';
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Shmuel's source?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> A married woman who has adultery is also a 
          Zonah!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> 'All their counsel is upon me, to die' 
          applies to Bi'ah with a married woman, not with a Zonah!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> They cast him into a pit of mud (to kill him).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rava):</font></b> 'They should stumble in front of you' - 
          (Yirmiyahu requested that those who seek to harm him,) 
          even when they give Tzedakah, make them stumble, by 
          presenting them with unworthy recipients, so they will 
          not get reward.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HONORABLE BURIAL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	'They honored (Chizkiyahu) in his death' - they learned 
          by his grave.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Nasan and Rabanan argued about whether they learned 
          for three days or for seven, or according to another 
          version, for 30 days.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa - R. Yehudah):</font></b> 'They honored (Chizkiyahu) in 
          his death' - 36,000 people with bare shoulders (from 
          having torn their garments) walked in front of him;
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Nechemyah:</font></b> They did the same for Achav (surely, the 
          verse discusses a greater honor for Chizkiyahu)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, they put a Sefer Torah on his bed, and 
               said that he fulfilled all that is written in it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Also we do that nowadays!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #1:</font></b> We take out a Sefer Torah, but we do not put 
          it on the bed.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #2:</font></b> We put it on the bed, but we do not say that 
          he fulfilled all that is written in it.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah):</font></b> I asked R. Yochanan about this. 
          He needed to relieve himself. He didn't answer until he 
          washed his hands, put his Tefilin back on and blessed on 
          them.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (R. Yochanan):</font></b> We even say that one fulfilled 
          the Torah, but we do not say that he taught Torah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Learning is great because it leads to 
          fulfilling (this shows that fulfilling is greater)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Fulfilling is greater than learning, but 
          teaching is greater than fulfilling.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> 'Happy are you who put seeds on all 
          water, who send oxen and donkeys (to thresh and carry the 
          grain)' - anyone who engages in Torah and Chesed merits 
          the inheritance of two tribes;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Putting seeds' is Tzedakah - 'sow for yourselves 
               Tzedakah; you will reap according to the Chesed 
               (that Hash-m will do for you)';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Water' refers to Torah - 'all who are thirsty, 
               go to water'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #1:</font></b> They merit a canopy (to be blessed 
               with many children) like Yosef, 'Ben Poras Yosef 
               Banos Tza'adah Alei Shor' and wealth like Yisachar, 
               'Yisachar Chamor Garem';
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Version #2:</font></b> Their enemies fall in front of them, 
               like Yosef, '(Bechor Shoro...) ba'Hem Amim 
               Yenagach', and they merit understanding like 
               Yisachar, 'umi'Bnei Yisachar Yod'ei Vinah...'
<br>
<br><b>PEREK KEITZAD HA'REGEL</b>
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>REGEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> How is Regel Mu'ad? A Behemah (animal) is 
          Mu'ad to break things when it walks normally.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it was kicking, or pebbles were being strewn 
               by its feet and Kelim were broken, it pays half-
               damage.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If it trampled on a Kli and broke it, and (fragments) 
          broke another Kli, it pays full damage for the first Kli, 
          and half-damage for the second.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Chickens are Mu'ad to walk normally and break things;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If something was tied to its leg, or if it was 
               dancing and broke Kelim, it pays half-damage.
<br>
<br>

sjt:
<font><b>1) 'TZEROROS'</b></font><b>
<br>QUESTION:</b> The Mishnah describes the Mazik of Regel. It teaches that if the animal kicks pebbles, or steps on pebbles and causes them to fly through the air, and they damage something, the owner of the animal pays only Chatzi Nezek. This is the Halachah of 'Tzeroros.'
</p><p>


<b>RASHI</b> explains that one pays only Chatzi Nezek for damage caused by Tzeroros because of the Halachah l'Moshe mi'Sinai. However, the reason one pays Chatzi Nezek when the animal <i>kicks</i> and thereby causes damage is that it is a strange way for the animal to act, and therefore it is considered Keren, as the Mishnah says (15b), and for damage caused by Keren one pays Chatzi Nezek (when it is a Tam).
</p><p>
If 'Meva'etes,' kicking, is considered Keren as the Mishnah (15b) says, why does the Mishnah here mention it altogether? The Halachah of Meva'etes has already been taught in the previous Mishnah! Moreover, since Meva'etes is Keren, it has nothing to do with Regel, which is the subject of the Mishnah here. Why, then, is it mentioned? (<b>TOSFOS</b> DH Meva'etes)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> explains that the Mishnah lists Meva'etes simply because it is similar to Tzeroros both in the amount that is paid and in the manner in which the damage is done. In truth, however, it does not belong in the Mishnah of Regel. It is included in this Mishnah only because of its similarity to Tzeroros.
</p><p>
The <b>MAHARAM SHIF</b> questions Tosfos' answer from the Gemara (16b) which proves from the Beraisa (19b) that the damage done by one's wild animal which kills another animal and eats it immediately ('Toref v'Ochel') is called Shen and not Keren. If it would be Keren (such that if the animal does it three times, the owner must pay Nezek Shalem because it is a Mu'ad), it would not belong in the Beraisa which discusses the Mu'ad of Shen. According to Tosfos, the Beraisa may have included it because of its similarity to Shen, even though the owner is actually liable because of Keren!
</p><p>
The answer to this question might be that there is no point in listing forms of damage which are similar to Shen but which pay Nezek Shalem, since most Mazikim pay Nezek Shalem. It is only the Mishnah -- which lists a Mazik which oddly pays only Chatzi Nezek -- which mentions, as an aside, the Halachah of Meva'etes which is damage caused by the foot and which also pays Chatzi Nezek.
</p><p>
Alternatively, Tosfos may intend to explain like the <b>TALMIDEI RABEINU PERETZ</b> in the Shitah Mekubetzes, who write that the Mishnah includes the Halachah of Meva'etes paying Chatzi Nezek in order to record a 'Stam' Mishnah in accordance with the view of the Rabanan who argue with Rebbi Tarfon, and who maintain that Keren in Reshus ha'Nizak pays Chatzi Nezek. (The Mishnah is discussing Reshus ha'Nizak since it discusses a place where one is liable for Regel.) The Talmidei Rabeinu Peretz explain that the reason why the Mishnah gives an example of <i>Meva'etes</i> to teach the Halachah of the Rabanan who argue with Rebbi Tarfon, and it does not give the ordinary case of Keren -- and the reason why it includes this case in this Mishnah rather than in any other Mishnah -- is because of its similarity to the case of Tzeroros. Accordingly, the Mishnah only lists something similar to another Halachah in the Mishnah if it is able to teach something new by doing so (which cannot be said about the Beraisa on 19b).
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(b) The <b>RASHBA</b> (see also <b>PNEI YEHOSHUA</b>) explains that the Gemara later (19a) presents a question whether Tzeroros of <i>Keren</i> pays Chatzi Nezek or <i>half</i> of Chatzi Nezek (i.e. a quarter of the Nezek done). The Rashba suggests that the case of Meva'etes of the Mishnah is also a case in which the animal kicked up Tzeroros in an unusual way, making it Tzeroros of Keren, and the Mishnah is teaching how much one must pay for Tzeroros of Keren -- half or a quarter of the Nezek. The reason the Gemara remains inconclusive on this matter is that the ruling of the Mishnah may be understood in one of two ways: either it is teaching that Meva'etes pays half of the entire Nezek as opposed to a quarter of the Nezek, or it is teaching that Tzeroros pays Chatzi Nezek only if it is <i>not</i> done through kicking (but is done in the normal manner of walking). If the kicking itself causes Tzeroros, the owner pays a quarter of the Nezek.
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(c) The <b>RASHASH</b> suggests that the Mishnah is teaching simply what the Gemara says at the beginning of the Masechta (2b), that although kicking is done with the foot it is not called a Toldah of Regel, but rather it pays Chatzi Nezek like a Toldah of Keren. He cites proof for this from the Mishnah later (19b) which lists the cases of Shen and adds that if the animal eats clothing or something else that it does not usually eat, it pays only Chatzi Nezek. The Mishnah makes that point in order to show that not every act that involves eating is called Shen; if it is unusual, it is called Keren. The Mishnah here, also, is teaching that not everything done with the foot is called Regel.
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Tosfos does not accept this answer for one of two reasons. The first reason is that this approach does not answer the first question, why the Mishnah points out that kicking is Keren when the earlier Mishnah (15b) has already taught that. The second reason is that according to the Rashash, the Mishnah should not have grouped Meva'etes together with Tzeroros. It should have said that if the animal damages by kicking, the owner pays Chatzi Nezek, and if it damages by Tzeroros, the owner also pays Chatzi Nezek. The fact that the Mishnah combines them into one Halachah ('if the animal damages by kicking or by Tzeroros, one must pay Chatzi Nezek') shows that Meva'etes is in some way related to Tzeroros.
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