# dafyomi

lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #3 (Reish Lakish):</font></b> It was blemished, and he
          slaughtered it outside the Mikdash.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>SOMETHING THAT WAS FITTING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection (R. Elazar):</font></b> These slaughters do not permit
          the meat (until another act is done)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Slaughter of a Tam does not permit it. Throwing
               the blood permits it! Slaughter of a blemished
               Korban does not permit it. Redemption permits it!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Shimon holds that whenever the blood is
          destined to be thrown (i.e. after slaughter), it is as if
          it was thrown (i.e. as if slaughter permits the animal
          immediately);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He also holds that whenever an animal is destined
               to be redeemed (i.e. after slaughter), we view it as
               if it was redeemed (and permitted immediately).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon):</font></b> Sometimes, Nosar (Kodshim
               that was not eaten in the allowed time, and is now
               forbidden) receives Tum'ah like food. Sometimes, it
               does not:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the time for eating passed and the blood was
                    never thrown, it does not receive Tum'ah;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If the blood was thrown in time, it
                    receives Tum'ah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We hold that this means that if the blood was
               never ready to be thrown, it does not receive
               Tum'ah. If it was ready, it receives Tum'ah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> What is considered ready or not ready
               to be thrown?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> It was slaughtered right before sunset,
               there was no time to throw it, it was not ready; if
               it was slaughtered with enough time to throw it, it
               was ready.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Inference:</font></b> He holds that anything ready to be
               thrown, it is as if it was thrown (and the meat
               receives Tum'ah).
<br>

<p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SOMETHING FITTING TO BE REDEEMED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Likewise, he holds that anything fitting to be
          redeemed, it is considered as if it was redeemed.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon):</font></b> A red heifer receives
               Tum'ah like a food because there was a time when it
               was ready to be eaten.
<br>
<br>

sjt:
<font><b>1) A THIEF WHO SLAUGHTERS AN ANIMAL THAT CANNOT BE SOLD</b></font><b>
<br>QUESTION:</b> The Gemara (76a) explains that Rebbi Shimon maintains that when a Ganav steals a sanctified animal (Kodshim) and slaughters it, he is obligated to pay Arba'ah v'Chamishah. The Gemara asks why, according to Rebbi Shimon, should the Ganav be Chayav for Arba'ah v'Chamishah? The Shechitah of the sanctified animal does not render it fit to eat (since a person may not eat Hekdesh), and Rebbi Shimon is of the opinion that an act of Shechitah that does not render the animal fit to eat is not considered a valid Shechitah.
</p><p>
Rebbi Yochanan answers that the case is where the Ganav slaughters the animal of Hekdesh while it is unblemished, and he slaughters it <i>inside</i> the Azarah with intent that the Korban be for the sake of the one who sanctified it. Reish Lakish answers that the case is where the Ganav slaughters the sanctified animal <i>after</i> it became blemished, <i>outside</i> the Azarah.
</p><p>
The Gemara here asks why Reish Lakish does not give the same answer as Rebbi Yochanan. The Gemara explains that Reish Lakish derives from the verse (Shemos 21:37) that the Ganav is Chayav for slaughtering the animal he stole only when he also would have been Chayav had he <i>sold</i> the animal. Since Kodshim cannot be sold (as Rashi here writes, its status of Hekdesh cannot be removed through its sale), the Ganav is not Chayav when he slaughters the animal.
</p><p>
However, the Gemara earlier (71a) quotes a Beraisa which states that one who steals and slaughters a Shor ha'Niskal is Chayav for Arba'ah v'Chamishah. Why is he Chayav in that case? A Shor ha'Niskal is Asur b'Hana'ah and cannot be sold, and thus a Ganav should not be Chayav for slaughtering it according to Reish Lakish! (<b>TOSFOS</b> to Kesuvos 33b, DH Ganav)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> in Kesuvos answers that a Shor ha'Niskal differs from an animal of Kodshim. Kodshim cannot be sold at all, under any circumstances. In contrast, a Shor ha'Niskal may be sold to a Nochri, and since the Isur Hana'ah does not become transferred to the money, the sale takes effect.
</p><p>
The Acharonim question Tosfos' answer from the Gemara earlier (45a) which clearly teaches that a Shor ha'Niskal cannot be sold at all. The <b>KOVETZ SHI'URIM</b> (Kesuvos #117) answers that the Gemara there refers only to the sale of a Shor ha'Niskal to another Jew when it says that the sale does not take effect.
</p><p>
What is the difference between selling the Shor ha'Niskal to a Jew and selling it to a Nochri? The reason why an item that is Asur b'Hana'ah may not be sold is because it is not considered the owner's property to sell. Accordingly, just as the owner cannot sell it to a Jew he should not be able to sell it to a Nochri.
</p><p>
The Kovetz Shi'urim explains that Tosfos maintains that the reason why an item that is Asur b'Hana'ah may not be sold is not that the <i>seller</i> is unable to sell the item. Rather, it is because the <i>buyer</i> is unable to receive the item. Indeed, the seller technically is able to sell the item. (Tosfos follows the view of the Rishonim who maintain that one <i>may</i> have possession of an item that is Asur b'Hana'ah.) The buyer, however, is prohibited from buying the item because he is forbidden from benefiting from it. A Nochri, on the other hand, is not prohibited from buying such an item, and therefore the sale is effective.
</p><p>
(b) <b>TOSFOS</b> in Kesuvos suggests a second answer based on the opinion of <b>RABEINU TAM</b>. Rabeinu Tam maintains that a Shor ha'Niskal is not Asur b'Hana'ah while it is alive. Only after its death does it become Asur b'Hana'ah. While it is alive it certainly may be sold, and therefore if the Ganav slaughters it he will be Chayav for Arba'ah v'Chamishah.
</p><p>
(c) The <b>KOVETZ SHI'URIM</b> challenges the question in the first place. In the Gemara earlier (68b), Reish Lakish himself rules that the Chiyuv of Arba'ah v'Chamishah for <i>selling</i> a stolen animal applies only when the Ganav sells the animal <i>before</i> the owner has Ye'ush. Accordingly, Reish Lakish maintains that it is not necessary for the Ganav's act (of selling the stolen animal) to be effective in order for him to be Chayav for Arba'ah v'Chamishah, since -- if he sells it before Ye'ush -- the sale certainly does not take effect; he merely needs to do the <i>act</i> of selling in order to be Chayav.
</p><p>
If this is the view of Reish Lakish, what is the question of Tosfos? In the Gemara here it is Reish Lakish who says that in order for the Ganav to be Chayav for slaughtering the animal, it must be possible for him to be Chayav for selling the animal. Reish Lakish himself maintains that the sale of the animal does not need to take effect in order for the Ganav to be Chayav. Hence, if the Ganav steals and sells a Shor ha'Niskal, even though the sale does not take effect he still will be Chayav (as the Beraisa says) because he did an act of selling with an act of Kinyan, which is no different from an act of selling the animal before the owner has Ye'ush.
</p><p>
To defend the words of Tosfos, the Kovetz Shi'urim explains that Tosfos understands that there is a difference between selling an animal before Ye'ush and selling an animal that is a Shor ha'Niskal. When the Ganav sells the animal before Ye'ush, the reason why he is Chayav even when his act is ineffective is that the animal itself <i>could</i> be sold if not for the fact that the seller stole it. If it would not be stolen animal, the sale would take effect. This is the Chidush of the Torah when it obligates a Ganav to pay Arba'ah v'Chamishah for selling a stolen animal; the Ganav is Chayav when the only factor preventing the sale from taking effect is the fact that the animal is stolen. In contrast, the sale of a Shor ha'Niskal is ineffective not merely because the animal was stolen but because the animal is a Shor ha'Niskal. Even if it had not been stolen, the sale of the Shor ha'Niskal would not have been effective.
</p><p>


<font><b>2) THE EXCLUSION OF AN ANIMAL OF 'KIL'AYIM'</b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa which cites a verse as the source that an animal that is a crossbreed is disqualified from being offered as a Korban.
</p><p>
The <b>LEVUSH</b> (OC 649:4) states that the reason why an Esrog which is a 'Murkav' (grafted between two species) is not valid is that an Aveirah was done with it (the Aveirah of grafting fruit) in its creation. The Acharonim ask that if that is sufficient reason to disqualify an item from being used for the Mitzvah, why is a verse needed to teach that an animal of Kil'ayim is invalid as a Korban? It should be invalid simply because it came about through an Aveirah.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>BIKUREI YAKOV</b> (649:19) writes that the Levush means that if not for the verse that teaches that an animal of Kil'ayim may not be used, one would not have known that an animal with which an Aveirah was done is invalid as a Korban. It is from that verse itself that the Levush derives that an item with which an Aveirah was done may not be used for a Mitzvah.
</p><p>
(b) The <b>CHASAM SOFER</b> (Sukah 31b, DH uva'Zeh) answers as follows. The reason behind the prohibition against using an animal of Kil'ayim as a Korban is not that an Aveirah was done with it. The Aveirah was the person's transgression of the Isur of Revi'ah (crossbreeding animals). If the animal was born as a 'natural' crossbreed (i.e. its parents of different species mated without any human intervention), no Aveirah was done with it. That is why a verse is needed to teach that an animal of Kil'ayim may not be brought as a Korban; one would not have known that such an animal is prohibited when no person crossbred the animal.
</p><p>
In contrast, in the case of a grafted Esrog, an Isur rests on the Kil'ayim itself; one who keeps fruit of Kil'ayim is punishable with Malkus. Therefore, it is the Aveirah of the Kil'ayim which prevents it from being used for the Mitzvah.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DO WE CONSIDER ATTACHED PRODUCE AS IF IT WERE DETACHED?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 59b (Mishnah - R. Shimon):</font></b> If it ate finished fruits
               (it pays the full value).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> 'It will consume in a different field'
               teaches that we evaluate like part of a field!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> That is only when it eats something that
               needs (to grow more in) a field.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Huna bar Chiya):</font></b> Rav taught that the Halachah
               follows R. Shimon.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 76b:</font></b> R. Shimon holds that whenever the blood is
               destined to be thrown (i.e. after slaughter), it is
               as if it was thrown (and the animal was permitted
               immediately). He holds similarly about anything
               ready to be redeemed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Shimon):</font></b> A red heifer receives
                    Tum'ah like a food because there was a time
                    when it was ready to be eaten.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Reish Lakish):</font></b> He permits redemption even
                    (after slaughter) near the wood (prepared for
                    burning it). It is as if it was redeemed, and
                    it receives Tum'ah.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Kesuvos 50b:</font></b> Rav Yosef ruled that daughters be fed
               from dates on mats, i.e. ready to be (detached and)
               put on mats.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> What is ready to be detached is considered
               to be detached!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer (Rav Yosef):</font></b> I discuss dates that must remain
               on the tree a little longer.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Gitin 39a (Beraisa):</font></b> If one was Makdish his slave,
               Me'ilah does not apply;
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> R. Shimon ben Gamliel says, Me'ilah applies to his
               hair.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> They argue about hair ready to be cut (whether it is
               as if it was already cut).
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Suggestion:</font></b> They argue as the following Tana'im
               argue.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah - R. Meir):</font></b> If Reuven claimed 'I
                    entrusted you with 10 laden vines, and Shimon
                    said 'you entrusted me with only five', he must
                    swear.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Chachamim say, anything attached is like land;
                    he need not swear.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>(R. Yosi b'Rebbi Chanina):</font></b> They argue about
                    grapes ready to be detached. Meir considers
                    them as if they were already detached;
                    Chachamim disagree.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Rejection:</font></b> Chachamim of the Beraisa can hold like R.
               Meir. He considers grapes as if they were detached,
               because they get worse if left attached too long
               (surely, they will be detached soon). Hair increases
               in value the longer it is attached!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Shevu'os 24a and 6:24):</font></b> We established
               that R. Meir and Chachamim argue about grapes ready
               to be detached.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (DH Masnisin Yesh):</font></b> We say in Kesuvos that
                    anything ready to be detached is as if it were
                    already detached, this is when it does not need
                    the land at all. When it needs the land a
                    little, but if it stays attached too long it
                    will be ruined, Chachamim and R. Meir argue.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (Kesuvos 18b):</font></b> What is ready to be detached is
               considered to be detached.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 2:4):</font></b> If one entrusted
               attached Peros to be guarded, even grapes ready to
               be detached, they are like land regarding laws of
               Shomrim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rambam (Hilchos To'en 5:4) If one claimed grapes
               ready to be detached, and Shimon admitted partially,
               he swears about it like other Metaltelim. This is if
               they do not need the land anymore. Anything ready to
               be detached is considered detached for denial and
               admission. If they still need the land, they are
               like 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam holds that all agree
                    that anything ready to be detached is
                    considered detached. The Tana'im argue about
                    Peros that do not need the land; he rules like
                    R. Meir. Alternatively, all agree that Peros
                    that do not need the land at all are like
                    Metaltelim. Kesuvos 51a is like Chachamim, and
                    the Rambam rules like them. The Rambam ruled
                    similarly in Hilchos Mechirah (1:17). However,
                    in Hilchos Sechirus (2:4) the Rambam says that
                    even if they do not need the land, they are
                    like land regarding Shomrim. Why should we
                    distinguish Shomrim from other matters?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Maimoniyos (4):</font></b> The Halachah follows R.
                    Shimon, that if it ate finished fruits it pays
                    the full value, for it is as if they were
                    detached.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (CM 95 DH v'Chosav ha'Rambam):</font></b> The
                    Rambam holds like his Rebbi, Ri ha'Levi, that
                    R. Meir and Chachamim argue only about Shomrim,
                    but for everything else Chachamim agree that
                    anything ready to be detached is considered to
                    be detached. The Gemara in Kesuvos is like
                    everyone. A proof of this is that the Rambam
                    rules that for Kinyan it is like Metaltelim,
                    and regarding Shomrim it is like land.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Drishah (95:5):</font></b> In Hilchos To'en (5:4) the
                    Rambam said 'grapes ready to be detached...',
                    and added 'this is if they do not need the land
                    any more.' He explains that the Tana'im argue
                    about grapes ready to be detached, but they
                    still need the land a little. (The Gemara said
                    'all agree about grapes that need the land',
                    i.e. they are not ready to be detached at all.)
                    He distinguished like this so that the Gemara
                    in Kesuvos is like Chachamim, and rules like
                    them.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 95:2):</font></b> If Reuven claimed grapes
               ready to be detached, and Shimon partially admitted,
               he swears about it like about other Metaltelim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> Ri ha'Levi says that if one sold grapes
                    ready to be detached, since he intends to
                    detach them, they are like Metaltelim in every
                    way, e.g. Ona'ah and Shevu'ah. Regarding a
                    Shomer they are considered attached, for he
                    intended that they stay attached. The Ramah
                    says that they are excluded from everything
                    from which land is excluded: Shevu'os, theft,
                    and Ona'ah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (9):</font></b> In Gitin (39a) we say that R. Meir
                    discussed only grapes, which get worse if left
                    in the ground. The Ran says that they need the
                    land a little, but afterwards they would get
                    ruined. Ri ha'Levi and the Rambam distinguish
                    between Shomrim and other matters; I disagree.
                    There is no reason to distinguish. Tosfos Yom
                    Tov (Shevu'os 6:6) asked that if they are like
                    Metaltelim only for Shomrim, why does the
                    Mishnah discuss partial admission? In any case
                    he must swear, for he is a Shomer! The Rif,
                    Rosh and other Poskim hold that Chachamim
                    consider it like land in every respect. Why did
                    the Gemara suggest that the argument about
                    Hekdesh of a slave is like the argument of R.
                    Meir and Chachamim? It does not discuss a
                    Shomer! A widow does not rely on collecting
                    attached Peros, for the orphans can harvest
                    them if they want. For everything else,
                    attached Peros are like land. The Ra'avad said
                    that we do not learn from Shevu'ah to other
                    matters. Perhaps he means that we do not learn
                    from Shevu'ah or other mid'Oraisa matters to
                    collection of debts, which is mid'Rabanan.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (12):</font></b> The Rambam (Hilchos Me'ilah 5:10)
                    holds that something attached is like
                    Metaltelim if it will deteriorate if left
                    attached, like R. Meir. This is like Ri
                    ha'Levi, who says that they are like land only
                    regarding Shomrim. For damages, if an animal
                    ate attached produce, Rav rules like R. Shimon.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 193:1):</font></b> If something attached
               does not need the land, e.g. grapes ready to be
               detached, they are Metaltelim for Kinyan and Ona'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (1):</font></b> The primary opinion is the Rema, who
                    is like the Tur. He did not bother to comment
                    in Siman 95, for in any case mid'Rabanan one
                    must swear. Here he commented, for land is not
                    acquired like Metaltelim at all.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> How does he explain why the Rema did not
                    comment above? There are differences between
                    mid'Oraisa and mid'Rabanan oaths!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (3):</font></b> We hold like Chachamim only regarding
                    Shomrim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that even if they do not need the
               land, they are like land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (4):</font></b> This opinion rules like Chachamim
                    regarding everything except for one who ate
                    finished Peros, or what a creditor can collect.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 301:5):</font></b> If one entrusted his
               friend to guard something attached to the ground,
               even if it was grapes ready to be detached, it is
               like land.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES A CREDITOR COLLECT FROM ATTACHED PRODUCE? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> R. Shimon holds that a red heifer
               may be redeemed even (after slaughter) near the wood
               (when it is about to be burned).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It receives Tum'ah even though it was never
               actually permitted to eat, but it was ready to be
               eaten had it been redeemed. Since it could have been
               redeemed, we consider it as if it was redeemed.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE DIFFERENT ANSWERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	R. Yochanan (bottom of 76a) did not answer as Reish
          Lakish, for he wanted to establish the Mishnah to discuss
          even Tam animals;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't Reish Lakish answer like R.
          Yochanan?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> 'And he slaughtered it or sold it' - a thief is
          liable (four or five) for slaughtering only if he would
          have been liable for selling.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since Tam Kodshim cannot be sold, a thief is not
               liable for slaughtering them.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yochanan and Reish Lakish are consistent with what
          they taught elsewhere.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> R. Shimon obligates a thief who
               sells a Tereifah. Even though he would be exempt for
               slaughtering it (since this does not permit the
               meat), he is liable for selling it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> R. Shimon exempts him. Since he
               would be exempt for slaughtering it, he is exempt
               for selling it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (R. Yochanan - Beraisa):</font></b> If a thief stole
          Kilayim (a crossbreed) and slaughtered it, or a Tereifah
          and sold it, he pays four or five.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like R. Shimon. Even though he would be
               exempt for slaughtering it, he is liable for selling
               it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Reish Lakish):</font></b> No, it is like Chachamim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Chachamim (who obligate for slaughter even if
          the meat is not permitted) obligate even for slaughtering
          a Tereifah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Counter-question:</font></b> (Even) if you will say it is R.
               Shimon, he should be liable for selling Kilayim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> You must say that the Tana mentioned
               slaughtering Kilayim, but the same applies to
               selling it;
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Also regarding a Tereifah, Chachamim mentioned
          selling it, but the same applies to slaughtering it!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection (R. Yochanan):</font></b> We understand if the Mishnah
          is like R. Shimon. Since the Tana could teach only one
          thing (selling) about a Tereifah, he also taught only one
          (slaughter) about Kilayim (even though both apply);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Mishnah were like Chachamim, they should
               be taught together. For slaughtering or selling a
               Tereifah or Kilayim, he pays four or five!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is left difficult (for Reish Lakish).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>KILAYIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Why does he pay four or five for Kilayim? The
          Torah said 'Seh' (a sheep or goat);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> Wherever the Torah says 'Seh', this
               excludes Kilayim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> It says 'ox or Seh' to include Kilayim.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Is it really true that 'or' always comes to
          include?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'An ox or lamb' excludes Kilayim; 'or
               goat' excludes a Nidmeh (an animal that does not
               resemble its parents, i.e. a child of two sheep that
               looks like a goat).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> 'Or' changes what we would have
          otherwise understood from the verse.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding theft, it says 'ox or Seh.' Mating them
               cannot produce Kilayim (nothing will be born), so
               one would have thought that four or five does not
               apply to Kilayim. 'Or' teaches that it does apply;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding Kodshim, it says 'lamb or goat.' Mating
               them can produce Kilayim, so one would have thought
               that Kilayim are valid Korbanos - 'or' teaches that
               they are not.
<br>

<p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>KILAYIM (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Also regarding Kodshim it says 'ox or lamb',
          which cannot produce Kilayim. We should say that 'or'
          comes to include Kilayim!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Since the second 'or' in the verse comes to
          exclude, also the first 'or' excludes.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> To the contrary! We should say that since the
          first 'or' comes to include, also the second 'or'!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> No. The way we learned is reasonable. After
          excluding Kilayim, we must also exclude Nidmeh;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But if the first 'or' includes Kilayim, all the
               more so a Nidmeh is a valid Korban. We would not
               need another 'or'!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Rava taught that wherever the Torah says
          'Seh', this excludes Kilayim. To what does he refer?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He cannot refer to Kodshim. 'An ox or lamb'
               excludes Kilayim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He cannot refer to Ma'aser (of animals). We learn
               from a Gezeirah Shavah 'Tachas-Tachas' from Kodshim!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> He cannot refer to a Bechor (firstborn male ox or
               Seh, which is automatically a Korban). We learn from
               a Gezeirah Shavah 'Ha'avara-Ha'avara' from Ma'aser!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Alternatively, we can learn from Nidmeh to
                    Kilayim.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  A firstborn Nidmeh is not Kodesh - 'only
                    the firstborn of an ox' - the ox and its
                    firstborn must both look like oxen;
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  All the more so, a firstborn Kilayim is not
                    Kodesh!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Rabah taught about a Bechor donkey (one may
          redeem it with a Seh, even if the donkey is worth more
          than the Seh)..
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> The following are not considered like
               a Seh to redeem a Bechor donkey: a calf; a Chayah
               (wild animal); a slaughtered Seh; a Tereifah;
               Kilayim; a Koy (a crossbreed of a deer and goat).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> According to R. Elazar (who permits redeeming
          a Bechor with Kilayim), what does Rabah's rule teach?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Elazar):</font></b> One may redeem a Bechor
               donkey with Kilayim, because it is a Seh.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Rabah's rule excludes a Tamei species born from
          a Tamei father and a Tahor mother.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Rabah's rule is not needed according to R. Yehoshua.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehoshua learns from 'Seh of sheep (plural)'
               and 'Seh of goats' that the child is considered a
               Seh only if both parents are sheep (or both are
               goats).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Can a Tahor animal really become pregnant
          from a Tamei animal?
<br>
<br>

sjt:
<font><b>1) THE EXTRA WORD 'OR'</b></font><b>
<br>QUESTION:</b> The Beraisa (77b) says that we derive from the word 'or' ('O') in the verse, '... an ox or a sheep' (Shemos 21:37), that an animal of Kil'ayim is included in the obligation of Arba'ah v'Chamishah. The Gemara asks that in the verse which mentions which animals may be brought as a Korban (Vayikra 22:27), the word 'or' is used to <i>exclude</i> an animal of Kil'ayim!
</p><p>
The Gemara answers that the animals mentioned in the verse of Arba'ah v'Chamishah (an ox and a sheep) cannot be crossbred, and thus an animal of Kil'ayim is automatically excluded. It must be that the word 'or' comes to include a crossbreed. In contrast, the verse which discusses which animal may be brought as a Korban mentions a sheep and a goat which <i>can</i> be crossbred, and thus the word 'or' there must be meant to exclude a crossbreed.
</p><p>
The Gemara here (78a) asks that the verse of Korbanos also mentions an <i>ox</i> ('an ox, or a sheep, or a goat...') which <i>cannot</i> be crossbred with a lamb or goat. Why, then, does the word 'or' there <i>exclude</i> Kil'ayim?
</p><p>
What is the Gemara's question? Whenever it is possible to understand a verse in one of two ways -- a leniency or a stringency -- the verse is interpreted as a stringency. Here, the verse teaches either that an animal of Kil'ayim may be brought as a Korban or that it may not be brought as a Korban. The verse should be interpreted as a stringency, that an animal of Kil'ayim may <i>not</i> be brought as a Korban!
</p><p>
<b>ANSWER:</b> The <b>SHITAH MEKUBETZES</b> cites <b>RABEINU YESHAYAH</b> who explains the Gemara's question as follows. The Gemara asks that if the verse intends to <i>exclude</i> Kil'ayim, it should omit all of the words 'or' and write instead, 'An ox, and a sheep, and a goat.' The verse would have had two opposing implications: 'an ox and a sheep' would have implied that Kil'ayim may not be brought as a Korban (since an ox and a sheep cannot be crossbred), while 'a lamb and a goat' would have implied that Kil'ayim <i>may</i> be brought. The verse would have been interpreted l'Chumra to exclude an animal of Kil'ayim. Now that the verse inserts the additional words of 'or' it must be that it intends to <i>include</i> Kil'ayim.
</p><p>


<font><b>2) TWO EXTRA WORDS 'OR'</b></font><b>
<br>QUESTION:</b> The Gemara explains that the two extra words 'or' (in the verse which mentions which animals may be brought as a Korban) must intend to <i>exclude</i> two types of animals. If the verse taught only one exclusion for Kil'ayim, one would not have known that a 'Nidmeh' is also excluded (since a Nidmeh is a lesser form of Kil'ayim). If, however, the two words 'or' are meant to <i>include</i> two types of animals, once the verse has included Kil'ayim there is no need for an additional word to include a Nidmeh.
</p><p>
The Gemara's explanation is unclear. Had the verse written only one extra word 'or,' one would have assumed that it meant to include a Nidmeh, while an animal of Kil'ayim is not included. Therefore, in order to <i>include</i> both Kil'ayim and Nidmeh it was necessary to have two extra words 'or'! What is the Gemara's proof that the two extra words are intended to <i>exclude</i> Kil'ayim and Nidmeh?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> answers that if the verse taught only one Ribuy, one would have included <i>Kil'ayim</i> and not Nidmeh, even though Kil'ayim is a greater Chidush. One would have reasoned that since it <i>is</i> possible to have a Nidmeh born from an ox or a sheep (and which looks like a crossbreed) and it is <i>not</i> possible to crossbreed an ox and a sheep, a crossbreed is already excluded from being brought as a Korban while a Nidmeh is included. The extra word 'or,' therefore, must be meant to <i>include</i> Kil'ayim, since a Nidmeh would have been included even without a Ribuy. (The Rashba proves that a Nidmeh would be included without the extra word from the fact that the Gemara includes Kil'ayim from the single extra word 'or' written with regard to Arba'ah v'Chamishah, and it does not include Nidmeh.)
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> answers that it is logical that the first 'or' in the verse is meant to teach that Kil'ayim is included. (It is not clear why this is logical.)
</p><p>
(c) The <b>PNEI YEHOSHUA</b> answers that one would not have been able to include Nidmeh from a single extra word 'or,' because one would have had no basis to <i>exclude</i> it such that a Ribuy is needed to include it. Moreover, logically, if the single word 'or' was meant to include a Nidmeh, the verse itself should have excluded Kil'ayim (since an ox and a sheep do not produce a crossbreed), which would have implied that <i>only</i> Kil'ayim is excluded but not a Nidmeh, and thus there would have been no need for a Ribuy. A single word 'or' would have taught that Kil'ayim is included, and a Kal va'Chomer would have taught that a Nidmeh is included as well. There would have been no need for a second extra word 'or.' Therefore, it must be, as the Gemara asserts, that the two extra words 'or' are meant to <i>exclude</i> Kil'ayim and Nidmeh and not to include them.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHALI'ACH L'DEVAR AVEIRAH FOR SLAUGHTER OR SELLING</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one stole an animal and gave it to
               another (a Shali'ach) to slaughter or sell it (and
               he did), the thief pays four or five.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Normally, Ein Shali'ach l'Devar Aveirah. This is an
               exception.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 71a - Answer #1 (Rava):</font></b> 'And he slaughtered it or
               sold it' - just like selling is through another,
               also Shechitah (one is liable through another).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Answer #2 (Beraisa - Tana d'Vei R. Yishmael):
               '(Slaughter) or (sell)' includes through a
               Shali'ach;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #3 (d'Vei Chizkiyah):</font></b> 'Tachas (in place of)'
               includes through a Shali'ach.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Kidushin 42b (Beraisa):</font></b> If Reuven sent Shimon to buy
               something, and he gave to him Hekdesh money, if he
               fulfilled his mission, Reuven transgressed Me'ilah.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Normally, Ein Shali'ach l'Devar Aveirah. A Gezeirah
               Shavah 'Chet-Chet' teaches that just like one can
               make a Shali'ach for Terumah, also for Me'ilah.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> Why don't we learn from Me'ilah to other
               Aveiros?
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #1:</font></b> Me'ilah and Shlichus Yad are Shenei
               Kesuvim, therefore, we do not learn to other cases.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer #2:</font></b> According to Beis Shamai (who disagree
               about Shelichus Yad), Me'ilah and selling or
               slaughtering a stolen animal are Shenei Kesuvim.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer #3:</font></b> According to the opinion that that Shenei
               Kesuvim teach to other places, Beis Shamai learn
               from Shechutei Chutz (slaughtering Kodshim outside
               the Mikdash), it says 'to that man', not to his
               Shali'ach. (An extra verse teaches that we learn to
               all other Aveiros!)
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (Bava Kama 28a and 7:6) bring the
               Gemara on 79a.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> He is exempt on Shabbos even through a
               Shali'ach, for the Shechitah does not permit (the 
               meat, for it came through Melachah on Shabbos).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rif and Rosh (Bava Kama 29a and 7:9):</font></b> In the entire
               Torah, Ein Shali'ach l'Devar Aveirah, except for a
               thief who made a Shali'ach to sell or slaughter.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Geneivah 2:10):</font></b> If Levi (a thief)
               gave the animal to Ploni to slaughter or sell it,
               and Ploni did so, the thief pays four or five.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (3:6):</font></b> If Levi gave the animal to Ploni to
               slaughter it, and Ploni did so on Shabbos, Levi pays
               four or five, for Levi is not Chayav Misas Beis Din.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (Hilchos Me'ilah 7:2):</font></b> If Levi told David to
               eat meat, and it was of an Olah, only David
               transgressed Me'ilah, for there was another Isur in
               addition to Me'ilah. In the entire Torah, Ein
               Shali'ach l'Devar Aveirah, except for Me'ilah with
               no other Isur involved.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Maharit (Kidushin 42b (on Rif) DH ul'Devar):
                    Yesh Shali'ach l'Devar Aveirah also regarding
                    Shechitah and selling, and Shlichus Yad! If a
                    Shomer told someone to be Shole'ach Yad, the
                    Rambam obligates the Shomer for negligence, not
                    due to Shelichus. A thief who told another to
                    slaughter or sell is punished for benefit, even
                    without Shelichus. This is called Shenei
                    Kesuvim, for if we could learn from Me'ilah, we
                    would not need verses for Shlichus Yad or
                    Shechitah. Beis Hillel use the Drashah to
                    obligate for Shechitah or selling via one who
                    cannot be a Shali'ach. Beis Shamai use it for
                    Shenei Kesuvim, and obligate only via a
                    Shali'ach. Perhaps we conclude that they
                    obligate via anyone, and learn Ein Shali'ach
                    from Shechutei Chutz.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> Seemingly, the Safek about one who cannot
                    be a Shali'ach applies also to Beis Hillel,
                    according to the opinion that learns from
                    Shenei Kesuvim.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Tur (CM 350:18):</font></b> If Levi gave a stolen animal to
               Ploni to slaughter it on Shabbos, and Ploni did so,
               the Rambam obligates four or five, for Levi is not
               Chayav Misas Beis Din. The Rosh exempts, for one may
               not eat from the slaughter
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Mishneh l'Melech Hilchos Geneivah
                    3:6):</font></b> If Levi commanded him to slaughter on
                    Shabbos, also the Rambam exempts from four or
                    five. Normally, Ein Shali'ach l'Devar Aveirah.
                    The Chidush that Yesh Shali'ach for Shechitah
                    and selling is only when no other Isur is
                    involved, like the Rambam says in Hilchos
                    Me'ilah. Surely, Ein Shali'ach to slaughter on
                    Shabbos, therefore the Shelichus is Batel also
                    for four or five. The Tur holds that the Rambam
                    was imprecise. Really, Levi is liable even if
                    he commanded Ploni to slaughter on Shabbos. The
                    Rambam in Me'ilah refutes this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Sha'ar ha'Melech (Hilchos Geneivah 5:6):</font></b> Tosfos
                    (Bava Kama 71a DH bi'Shomo) obligates a thief
                    who authorized a Shali'ach to slaughter 'even
                    for idolatry, if you want.' It seems that had
                    he commanded him to slaughter for idolatry, he
                    would be exempt. However, there is no proof
                    from the Rambam in Me'ilah. There, the
                    Shelichus (to eat an Olah) necessarily entails
                    an Aveirah other than Me'ilah, and Ein
                    Shali'ach to eat an Olah). Here, he could
                    slaughter without Chilul Shabbos!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Defense (Hafla'ah Kesuvos 33b DH v'Chi and
                    Ketzos ha'Choshen 232:1 DH uv'Tur):</font></b> Shechitah
                    is unlike Me'ilah, in which Shelichus is
                    needed. Here, the thief is liable for benefit.
                    R. Yochanan and Reish Lakish (Bava Kama 68b)
                    obligate a thief who sold before despair, even
                    though the sale is void. Here also, even though
                    the Shelichus is Batel due to Ein Shali'ach,
                    the thief is liable. The same applies to
                    commanding a Shali'ach to slaughter to
                    idolatry.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question (Pnei Yehoshua):</font></b> According to those
                    who are stringent to say that Yesh Shelichus
                    l'Nochri, why is telling a Nochri to do
                    Melachah on Shabbos only mid'Rabanan? Since the
                    Nochri is not Bar Chiyuva, Yesh Shali'ach
                    l'Devar Aveirah, so the Meshale'ach
                    transgresses mid'Oraisa!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer (Beis Meir EH Sof Siman 5):</font></b> Shabbos is
                    like a Mitzvah on a person's body, that he rest
                    on Shabbos. Shelichus does not apply, just like
                    one cannot make a Shali'ach to wear Tzitzis
                    (Tosfos Rid Kidushin 42b DH Sheani). Therefore,
                    a command to slaughter on Shabbos does not
                    Mevatel Shelichus.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Beis She'arim (OC 76):</font></b> Even if he commanded to
                    slaughter on Shabbos, this could be without an
                    Isur of Shabbos, e.g. for a sick person.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN DO WE SAY EIN SHALI'ACH L'DEVAR AVEIRAH? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> It can become pregnant from a (Tahor) animal
          with uncloven hooves. This is like R. Shimon (who calls
          such an animal Tamei, and forbids eating it).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>COMPENSATION FOR A STOLEN KORBAN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Questions (Rava):</font></b> If Reuven accepted on himself to
          offer an Olah, and he separated an ox for this, and it
          was stolen, according to Chachamim, can the thief exempt
          himself by returning a lamb? According to R. Eliezer ben
          Azaryah, can the thief exempt himself by returning a
          bird?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one said 'I accept on myself to
               bring an Olah', he must bring a lamb (or another
               animal);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Eliezer ben Azaryah says, he may bring a
               pigeon or dove.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> Do we say that Reuven
               never specified what type of Olah he will bring, so
               the thief may return any valid species?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Or, can Reuven say 'I intended to do an ideal
                    Mitzvah (a big Korban, so you must return a big
                    animal)'?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answers (Rava):</font></b> The thief can exempt himself by
          returning a lamb (according to Chachamim) or a bird
          (according to R. Eliezer ben Azaryah).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A DEFECTIVE SALE OR SLAUGHTER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A thief pays Kefel, not four or five, in all
          the following cases: he sold the animal, except for one
          part in 100;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He was a partner in it before stealing it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He slaughtered it improperly, making it Neveilah;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> He did Nechirah or Ikur (he tore or uprooted the
               foodpipe and windpipe).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What does 'except for one part in
          100' mean?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> He excluded (did not sell) something
          that is permitted through slaughter.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Levi):</font></b> It is (even) if he excluded its
          shearings.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> It is (even) if he excluded its
          shearings.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Beraisa #1):</font></b> A thief does not pay four or
          five if he sold it except for its foreleg, hind leg, horn
          or shearings;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi says, he pays four or five only if he sold
               everything necessary for slaughter (i.e. he did not
               retain anything whose removal would make the animal
               Neveilah);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Elazar says, if he retained its
               horn, he does not pay four or five; if he retained
               the shearings, he pays four or five.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Levi is like the first Tana, but Rav is not like
               any Tana!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav holds like the following Tana.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #2 - R. Shimon ben Elazar):</font></b> A thief does
               not pay four or five if he sold it except for its
               foreleg or hind leg. He does pay if he retained its
               horn or shearings.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What do the Tana'im argue about?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The first Tana expounds 'and he slaughtered it'
          - all of it; 'or he sold it' - all of it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi expounds 'and he slaughtered it' - whatever
               is necessary for slaughter. 'Or he sold it' - this
               is like slaughter (he must sell whatever is
               necessary for slaughter);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Elazar (Beraisa #1) holds that the
               horn is a remnant (rendering the sale incomplete,
               which exempts him), for it was not destined to be
               cut off from the animal;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The shearings are not remnants, for they were
                    destined to be cut off (so it is as if he sold
                    the entire animal).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon ben Elazar (in Beraisa #2) holds that
               the legs are remnants, because they are permitted
               only through slaughter. The horns and shearings are
               not remnants, because they are permitted without
               slaughter.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> R. Shimon ben Elazar contradicts himself!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The Tana'im (of the two Beraisos) argue about
          what R. Shimon ben Elazar held.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>STEALING A DEFECTIVE ANIMAL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A thief is liable for all the following
          animals: it is missing a limb, or lame, or blind, or it
          is of partners;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Partners who stole are exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> Partners who stole are liable!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Nachman):</font></b> A man who stole from his
          partner is exempt. A partner who stole from someone else
          is liable.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rava - Beraisa) Suggestion:</font></b> Perhaps one who
          stole from his partner, or partners who stole are liable!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rejection:</font></b> 'And he slaughtered it' - he is liable
               only if he slaughtered an entirely stolen animal.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman):</font></b> Rather, if two partners stole,
          and one of them slaughtered, if the other authorized him
          to slaughter, both are liable. If not, they are exempt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Questions (R. Yirmiyah):</font></b> What is the law in the
          following cases?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He sold the animal except for 30 days (during which
               the thief may work with it);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He retained the right to collect any work done
               with it (but the buyer may slaughter it whenever he
               wants);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> He retained its fetus.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This last question is not according to the
               opinion that a fetus is like a limb of its mother.
               He surely exempts the thief, as if he retained a
               limb of the mother. The question is according to the
               opinion that a fetus is not like a limb of its
               mother:
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Version #1:</font></b> Do we say, since it is connected to
               the mother, it is a remnant (rendering the sale
               incomplete);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Or, since it is destined to separate from the
                    mother, it is not a remnant?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Version #2:</font></b> Do we say, since it is not like a
               limb of its mother, therefore, it is not a remnant?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Or - do we say, since it needs to become
                    permitted through slaughter of the mother, it
                    is a part of the mother (and is a remnant)?
                    (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	These questions are unsettled.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> If a thief stole an animal, cut
          off a limb and sold the (rest of the) animal, what is the
          law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say, since he did not sell the entire
               animal he stole, he is exempt (from four or five)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since he did not retain anything for himself
               in what he sells, he is liable?
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	This question is unsettled.
<br>

<p>

sjt:
</p><p>
<font><b>3) HALACHAH: RETURNING A STOLEN KORBAN</b></font><b>
<br>OPINIONS:</b> The Gemara concludes that a Ganav who stole a Shor which had been sanctified to be offered as a Korban Olah may fulfill his obligation to return the stolen object by returning a <i>sheep</i> according to the Rabanan, or a <i>bird</i> according to Rebbi Elazar ben Azaryah. Since the Ganav stole a Korban Olah, he is required to return a Korban Olah, and thus it suffices for him to give any animal that may be offered as an Olah. Although a sheep and bird are not worth as much as a Shor, the Ganav may return any animal that may be used as a Korban Olah and the owner may not insist that the Ganav return a Shor to him so that he can fulfill the Mitzvah in the best possible way.
</p><p>
The Acharonim resolve a similar Halachic question based on this Gemara. If a person steals or ruins his friend's Esrog that is Mehudar, is he required to pay back an Esrog that is Mehudar or does it suffice to pay back any Esrog that is valid for the Mitzvah?
</p><p>
(a) The <b>MAHARAM MINTZ</b> (#114) proves from the Gemara here that one may fulfill his obligation by returning any kosher Esrog. He adds, however, that if the owner would have been able to sell the nicer Esrog after Sukos, the Ganav must pay him back with an Esrog of equal value (or with money equal to the value of the nicer Esrog) since he clearly caused the owner a loss.
</p><p>
(b) The <b>CHACHAM TZVI</b> (#120) argues that the case of the Esrog is not comparable to the case of the Gemara here. Only when the Ganav steals a Korban Olah may he pay back with any animal that may be offered as an Olah, because the Korban has no monetary value for the owner (since it is Hekdesh). The Ganav must pay back only in order to enable the owner to fulfill his obligation to bring a Korban, and since he may fulfill his obligation by bringing a sheep, the Ganav only needs to pay back a sheep. An Esrog, on the other hand, certainly has monetary value for its owner, for he is able to sell it if he wants. Since the Ganav caused him to lose that value, he is obligated to pay it back. (See also <b>MISHNEH L'MELECH</b>, Hilchos Ma'aseh ha'Korbanos 16:7.)
</p><p>
(c) The <b>CHASAM SOFER</b> (Gitin 54b, DH ha'Kohanim) answers the question of the Chacham Tzvi on the ruling of the Maharam Mintz. He explains that since the owner of the Esrog bought an Esrog that was Mehudar in order to give honor to Hash-m, he obligated himself to use such an Esrog and he cannot sell it (in the words of the Chasam Sofer, 'Neder Gadol Nadar l'Elokei Yisrael'). The Chasam Sofer writes that this also seems to be the view of the <b>RA'AVAD</b> and <b>RASHBA</b> in the Gemara here, and the <b>RAMBAM</b> (Hilchos Ma'aseh ha'Korbanos ch. 16). They explain that when the Gemara concludes that the Ganav may pay back a sheep in place of the Shor he stole, it means to teach that even though the owner -- by sanctifying a Shor to be offered as a Korban -- made a Neder to give honor to Hash-m with the nicest type of Korban (and thus one might have thought that he must offer specifically a Shor and not any other animal), once the animal has been stolen he may fulfill his obligation with any animal that may be brought as an Olah. This implies that as long as the item of the Mitzvah still exists, he must fulfill the Mitzvah with the item that he originally intended to use.
</p><p>
The Chasam Sofer, however, asks a different question on the view of the Maharam Mintz. He asks that the case of the Esrog is not comparable to the case of the Gemara here because the Gemara is not discussing the Ganav's obligation with regard to the actual item that he stole. The Ganav's obligation to return the stolen item in this case is based on the principle that 'Davar ha'Gorem l'Mamon k'Mamon Dami' (and the Sugya here follows the view of Rebbi Shimon). Hence, since the owner can fulfill his obligation to bring a Korban Olah by bringing a sheep, the value of a sheep is the extent of the financial loss that the Ganav caused the owner, even though it was a Shor that the Ganav stole. In contrast, the reason why the Ganav must pay back the Esrog he stole is not due to 'Davar ha'Gorem l'Mamon.' He must pay back because of the very fact that he took the property of someone else (since an Esrog is not Hekdesh and it belongs to its owner). Therefore, the Ganav must pay back an Esrog of a value equal to the one he stole.
</p><p>
(d) The <b><b><b>OR</b></b> SAME'ACH</b> (Hilchos Geneivah 2:1) rules that although the theft of a normal Esrog cannot be compared to the theft of a Korban Olah, the theft of an Esrog of Ma'aser Sheni is comparable to the theft of a Korban Olah. The Halachah is that a person can fulfill the Mitzvah with an Esrog of Ma'aser Sheni, and yet it is not considered to be the property of the owner (the Halachah follows the opinion of Rebbi Meir that Ma'aser Sheni is Mamon Gavoha). Since such an Esrog is not considered the owner's property, when someone steals such an Esrog he has not stolen anything of value from the owner. However, he must give back an Esrog in order for the owner to fulfill the Mitzvah. Hence, the Gemara here is the source that he may pay back with a kosher Esrog of lesser value.
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SLAUGHTER OR SALE THROUGH A SHALI'ACH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> One who stole an animal pays four or five
          for any of the following:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He gave the animal to a Shali'ach, who
               slaughtered or sold it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He made it Hekdesh;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> He sold the animal on credit;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> He exchanged the animal for other goods, or gave
               the animal for a gift;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> He used it to pay for what he had bought on
               credit, or to pay a loan;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> He sent it for Savlonos (a gift to the house of
               the woman he was Mekadesh);
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What Chidush do we learn?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> First, we learn that he is liable through a
          Shali'ach, i.e. if one makes a Shali'ach to slaughter or
          sell, it takes effect;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though in (almost) all other cases, a
               Shali'ach to transgress is not a Shali'ach, here he
               is.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> 'And he slaughtered it or sold it' - just
               like he can sell it only through another (the
               buyer), he is liable also for slaughtering through
               another.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Then we learn that he is liable for making it Hekdesh.
          Giving to Hekdesh is like selling to a person.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MESHICHAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven stole and slaughtered or sold an
          animal of Shimon, he pays four or five whether only the
          theft was from Shimon's premises (but not the slaughter
          or sale), or if only the slaughter or sale was in
          Shimon's premises, or if both were outside Shimon's
          premises;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If both were in Shimon's premises, he does not
               pay four or five.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven was dragging the animal to take it out, and
          it died while still in Shimon's premises, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he lifted it, or took it outside and then it
               died, he is liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he gave the animal to a Kohen to redeem his
          firstborn son, to his creditor, to a Shomer Chinam,
          borrower, Shomer Sachar or renter, and he was dragging it
          out, and it died in Shimon's premises, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he lifted it, or took it outside and then it
               died, he is liable.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question (Ameimar):</font></b> Was there an enactment of
          Meshichah regarding Shomrim? (Rashi - a Shomer is not
          liable until he does Meshichah; Tosfos - an owner can
          retract from his consent to lend or rent out his animal
          after Meshichah)?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Yeimar - Mishnah):</font></b> If he gave the animal to
          a Kohen to redeem his son, to his creditor, or to a
          Shomer, and he was dragging it out, and it died in
          Shimon's premises, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Reuven's Shomer was dragging it.
               (Reuven is exempt because Meshichah is not complete
               until it leaves the owner's premises.) This teaches
               that they enacted Meshichah regarding Shomrim!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection (Ameimar):</font></b> No, Reuven was dragging it from
          the premises of Shimon's Shomer.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> We know this from the Reisha!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah teaches about one who steals from
          the owner's premises, and one who steals from a Shomer's
          house.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection (Rav Ashi):</font></b> There is no reason to
          differentiate between them! (The Mishnah need not teach
          both.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, Reuven's Shomer was dragging it, like Rav
               Yeimar said. This teaches that they enacted
               Meshichah regarding Shomrim.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	(R. Elazar) Just like they enacted Meshichah regarding
          buyers, also regarding Shomrim.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Support (Beraisa) Just like they enacted Meshichah
          regarding buyers, also regarding Shomrim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like land is acquired through money, a
               document or Chazakah, a rental agreement takes
               effect through money, a document or Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What rental does the Beraisa discuss?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> It discusses rental of Metaltelim.
<br>
<br>

sjt:
<font><b>1) A THIEF WHO SOLD THE STOLEN ITEM ON CREDIT</b></font><b>
<br>QUESTION:</b> The Gemara says that a Ganav who stole an item and sold it on credit (he received no money for it) is obligated to pay Arba'ah v'Chamishah.
</p><p>
How did the Ganav effect a Kinyan if he received no money in exchange for the stolen item? It must be that the buyer acquired the item through Meshichah. However, Meshichah is a Kinyan <i>d'Rabanan</i>. How can a Kinyan d'Rabanan obligate the Ganav to pay Arba'ah v'Chamishah <i>mid'Oraisa</i>?
</p><p>
<b>ANSWER:</b> This Gemara supports the principle discussed by the Acharonim (see <b>CHAZON ISH</b> 17:16, <b>PRI YITZCHAK</b>, and others) that a Kinyan d'Rabanan suffices for a Halachah d'Oraisa; when the Rabanan institute that a certain act should accomplish a Kinyan, that act is considered on par with any Kinyan d'Oraisa and can be Makneh the object to the recipient for all intents and purposes.
</p><p>
The <b>DEVAR AVRAHAM</b> (1:1:15-16) explains the reason for this as follows. The Gemara in Bava Metzia (74a) teaches that any act that becomes generally accepted as an act that finalizes a sale ('Situmta') accomplishes a Kinyan <i>d'Oraisa</i>. A Kinyan instituted by the Rabanan is no less than the Kinyan of 'Situmta.' (See Insights to Gitin 36b.)
</p><p>


<font><b>2) A THIEF WHO STEALS AN ITEM AND THEN MAKES IT 'HEFKER' OR SELLS IT BACK TO THE ORIGINAL OWNER</b></font><b>
<br>OPINIONS:</b> The Gemara quotes a Beraisa which teaches that a Ganav is Chayav for Arba'ah v'Chamishah not only when he sells the item in the normal manner of a sale, but even when he transfers it to another's ownership in other ways, such as by making it Hekdesh, selling it on credit, bartering it, or giving it as a gift.
</p><p>
The Acharonim discuss other situations in which the Ganav transfers the stolen animal to a different domain in a manner other than that of a normal Mechirah.
</p><p>
1. What is the Halachah in the case of a Ganav who steals an item and then makes it Hefker?
</p><p>
(a) The <b>TO'AFOS RE'EM</b> on the Sefer ha'Yere'im (Mitzvah 124:10) writes that the Ganav is <i>exempt</i> from Arba'ah v'Chamishah in such a case, because making the item Hefker does not qualify as a sale.
</p><p>
(b) The <b>MISHKENOS YISRAEL</b> (#21) rules that a Ganav is <i>Chayav</i> for Arba'ah v'Chamishah in such a case. Making the stolen item Hefker is comparable to giving the stolen item to someone else as a gift. The only difference is that when one makes it Hefker, he gives it to the public and not to an individual person.
</p><p>
The To'afos Re'em argues with this view. A Ganav is <i>exempt</i> from Arba'ah v'Chamishah when he sells the item to <i>two</i> people jointly, and thus he is also exempt when he gives the item as a gift to two or more people. Accordingly, he is exempt when he makes the item Hefker.
</p><p>
Another difficulty is that the Mishkenos Yisrael seems to assume that the act of making an item Hefker is an act of giving the item to the public. However, according to many Acharonim this is not how Hefker works. Rather, when a person makes an item Hefker, he merely withdraws his ownership from the item. His act of Hefker does not transfer the item to the public's ownership, but merely creates the right for anyone to come and acquire the item for himself. Accordingly, making an item Hefker is not comparable to giving an item as a gift.
</p><p>
2. What is the Halachah in the case of a Ganav who steals an item and then sells it to the original owner (from whom he stole it in the first place)?
</p><p>
(a) The <b>TO'AFOS RE'EM</b> rules that the Ganav is exempt in such a case. His ruling is based on the Mechilta which says, 'Just as the Mechirah must be done to a Reshus outside of his (the original owner's) Reshus, so, too, the Tevichah must be done outside of his Reshus.' It is clear from the Mechilta that the Ganav is Chayav for Arba'ah v'Chamishah only when he sells the animal to someone other than the original owner.
</p><p>
(b) The <b>MISHKENOS YISRAEL</b> (ibid.) rules that the Ganav is Chayav for Arba'ah v'Chamishah in such a case. Since he sold the animal, to whom he sold it makes no difference. It is not clear how the Mishkenos Yisrael addresses the proof of the To'afos Re'em from the Mechilta.
</p><p>
(c) The <b><b><b>OR</b></b> HA'CHAIM</b> (Shemos 23:3) gives a novel explanation for a Ganav's obligation of Arba'ah v'Chamishah. He writes that the obligation applies whenever the stolen animal is no longer found in his possession -- even when there are no witnesses that he slaughtered or sold it! When the animal is not found in his possession, it may be assumed that he slaughtered or sold it. The verse requires him to pay Kefel only when the stolen animal is found in his possession. When it is not found in his possession, he must pay Arba'ah v'Chamishah.
</p><p>
He explains that this is the reason behind the apparent repetitiveness in the verse, 'Im Himatzei Timatzei...' -- 'If the theft <i>be at all found</i>... he shall pay double' (Shemos 22:3). One 'Himatzei' teaches that there are witnesses who testify that he stole the item, and the second 'Timatzei' teaches that it was found in his possession. Only when both conditions are met is he obligated to pay Kefel. He proves this from the Gemara here which teaches that when the Ganav removes the stolen animal from his possession in any manner, he is Chayav for Arba'ah v'Chamishah.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHALI'ACH L'DEVAR AVEIRAH B'SHOGEG</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a thief stole Shimon's animal and gave
               it to a Shomer, and he was dragging it out, and it
               died in Shimon's premises, he is exempt. If he
               lifted it, or took it outside and then it died, he
               is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yeimar):</font></b> Reuven's Shomer was dragging it.
               (Reuven is exempt because Meshichah is not complete
               until it leaves the owner's premises.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Kidushin 42b (Beraisa):</font></b> If Reuven sent Shimon to buy
               something, and he gave to him Hekdesh money, if he
               fulfilled his mission, Reuven transgressed Me'ilah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Normally, Ein Shali'ach l'Devar Aveirah. A Gezeirah
               Shavah 'Chet-Chet' teaches that just like one can
               make a Shali'ach for Terumah, also for Me'ilah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 43a:</font></b> If a thief stole a sheep, goat or ox, and
               slaughtered or sold it, he pays four or five times
               its value, even if he sold or slaughtered through a
               Shali'ach.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Levi made Shimon a Shali'ach to kill
               someone (and he did), Shimon is liable, and Levi is
               exempt;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Shamai obligates Levi - 'you (David) killed him
               (Uriyah) with the sword of Amon'.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Shamai holds that Yesh Shali'ach l'Devar Aveirah.
               Or, Ein Shali'ach; Levi is liable b'Yedei Shamayim
               (the first Tana obligates him less). Or, Shamai
               learns from 'you killed....' that Yesh Shali'ach for
               murder. The first Tana holds that the verse teaches
               that David is exempt, for Uriyah rebelled against
               the king.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Metzi'a 10b:</font></b> R. Yochanan holds that the Torah
               says that a Chatzer acquires like one's hand. Reish
               Lakish holds that it acquires like one's Shali'ach.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question (against Reish Lakish):</font></b> A Beraisa obligates
               a thief if the stolen object is found in his
               Chatzer. We hold that Ein Shali'ach l'Devar Aveirah!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer #1 (Ravina):</font></b> Ein Shali'ach l'Devar Aveirah
               only when the Shali'ach is Bar Chiyuva (liable for
               transgressing).
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer #2 (Rav Sama):</font></b> Ein Shali'ach l'Devar Aveirah
               only when the Shali'ach can choose whether or not to
               comply.
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> They argue about a Kohen who told a Yisrael 'be
               Mekadesh a divorcee to me', or a man who told a
               woman 'cut a boy's sideburns for me.' Rav Sama
               exempts the Meshale'ach, and Ravina obligates him.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Kidushin 16b and 2:2):</font></b> Actions of
               David's Shali'ach are attributed to David, unless he
               was told to do an Aveirah. Then, we say that he
               should have listened to Hash-m, not to David.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Me'ilah 7:1):</font></b> If Reuven told Shimon
               'give one piece of meat to each guest,' and Shimon
               told the guests 'I allow you to take two each', and
               the guests took three each (and the meat was found
               to be Hekdesh), all were Mo'el.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (2):</font></b> This refers to meat of Bedek ha'Bayis.
               If the meat was of an Olah, only the ones who ate
               transgressed Me'ilah, for there was another Isur in
               addition to Me'ilah. In the entire Torah, Ein
               Shali'ach l'Devar Aveirah, except for Me'ilah with
               no other Isur involved.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Noda bi'Yehudah (EH 80 DH u'Milvad and 75 DH
                    v'Af):</font></b> Ein Shali'ach even when the Shali'ach
                    was Shogeg. Here they were all Shogeg (Me'ilah
                    is only b'Shogeg), yet Ein Shali'ach if another
                    Isur was involved! Also, Rava taught about Yesh
                    Shali'ach for eating Chelev according to Shamai
                    (Kidushin 43a). If Yesh Shali'ach b'Shogeg, he
                    would have taught according to Halachah!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 1:30):</font></b> The Ramah says that the
               Halachah follows Rav Sama Therefore, the only
               Shali'ach l'Devar Aveirah is a Chatzer.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Why is the thief liable due to the
               Shomer's Meshichah (Bava Kama 79a)? Ein Shali'ach
               l'Devar Aveirah!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1 (Tosfos Bava Kama 79a DH Nasno):</font></b> The
               Shomer thinks that it is the thief's. Yesh Shali'ach
               when the Shali'ach is not Bar Chiyuva, or has no
               choice, for the Meshale'ach does not expect the
               Shali'ach to obey. If the Shali'ach thinks that it
               is the thief's, the thief expects him to obey!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2 (Nimukei Yosef Bava Kama 29a DH Masnisin
               (2)):</font></b> The Acharonim disagree. In Bava Metzi'a, we
               asked why a Chatzer can be a Shali'ach l'Devar
               Aveirah, even though it has no Da'as! David was not
               punished for killing Uriyah, because Ein Shali'ach,
               even though Yo'av was Shogeg (he thought that Uriyah
               was Chayav Misah)! Rather, if the Shomer took it
               out, the Shomer is liable (for its death) to the
               owner, like we find in Bava Metzi'a (35b).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Yam Shel Shlomo):</font></b> Yo'av knew that
                    Uriyah was not Chayav Misah, for David
                    commanded to kill him subtly (to put him at the
                    front lines, and withdraw from him). The Tana
                    who argues with Shamai obligates a Shali'ach
                    who kills. They discuss a case like this, for
                    they argue about the verse! Yo'av erred by not
                    expounding Mi'utim (not to obey a king's order
                    to transgress - Sanhedrin 49a). In Kidushin, we
                    conclude that Uriyah was Chayav Misah for
                    rebelling against the king, unlike Sanhedrin
                    49a. Tosfos said that Yesh Shali'ach when the 
                    Shali'ach is Shogeg, and had no question about
                    this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach CM 348:6):</font></b> Ravina says that
                    Yesh Shali'ach when the Shali'ach is not Bar
                    Chiyuva, i.e. the Isur never applies to him
                    (not that he is exempt for he was Shogeg).
                    Also, he can choose whether or not to do it
                    even if he is Shogeg! Rashi obligates the thief
                    due to the Shomer's Meshichah. This is wrong.
                    If so, why did we challenge Reish Lakish from a
                    Beraisa (Bava Metzi'a 10b)? We can challenge
                    even R. Yochanan from the Mishnah; and the
                    answer suffices for Reish Lakish! Rather, we
                    must explain the Mishnah like the Nimukei Yosef
                    or others. There is no source to say Yesh
                    Shali'ach when the Shali'ach is Shogeg. Yo'av
                    assumed that David had a valid reason to kill
                    Uriyah covertly. We derived that Shamai holds
                    that Yesh Shali'ach since he says that David
                    was liable, even though Yo'av was Shogeg!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Tosfos (Kidushin 42b DH Amai):</font></b> Me'ilah is only
               b'Shogeg. If so, surely Yesh Shali'ach, for the
               Shali'ach had no reason not to do like he was told!
               We ask why the Meshale'ach was Mo'el when he was
               Shogeg and the Shali'ach was Mezid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Tosfos, ibid.):</font></b> How did we try to
                    learn Shali'ach l'Devar Aveirah from selling a
                    stolen animal (which is always through someone
                    else)? Perhaps this is when the seller does not
                    know that it is stolen!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Yam Shel Shlomo Bava Kama 7:33):</font></b> The
                    Torah equates selling and Shechitah. Just like
                    a thief is liable for selling via (i.e. to)
                    another, even if he knows that it is stolen, he
                    is liable for slaughter through another who
                    knows.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Shach CM 348:6):</font></b> Since this opinion
                    does not expound anything extra in the verse,
                    we should learn the smallest Chidush, when the
                    other person is Shogeg! Rather, even b'Shogeg,
                    Ein Shali'ach.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (CM 182:1):</font></b> In all matters, actions of David's
               Shali'ach are attributed to David, except for an
               Aveirah. We hold that Ein Shali'ach l'Devar Aveirah,
               when the Shali'ach is a Bar Chiyuva. If he is not,
               he is a Shali'ach even for an Aveirah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Darchei Moshe (CM 348:3 DH v'Chosav Mordechai):
                    The Mordechai (Bava Metzi'a 237) obligates the
                    Meshale'ach when the Shali'ach is exempt. If
                    David told Levi 'take my ox from Ploni's
                    house', and it was found that David intended to
                    steal it, he is liable through Levi's
                    Meshichah, for Levi did not know that it is
                    stolen. The Nimukei Yosef obligates the
                    Shali'ach, for Ein Shali'ach even when the
                    Shali'ach does not know that it is forbidden.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 6):</font></b> The Nimukei Yosef exempted
                    the Meshale'ach. There is no reason to obligate
                    the Shali'ach! The Yam Shel Shlomo says so
                    explicitly.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema (348:8):</font></b> If a thief hid a stolen object and
               needed to leave the city before he was able to take
               it, and he sent Levi to bring it, Levi must pay. He
               is the primary thief, since he knew that it is
               stolen.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (27):</font></b> If Levi did not know, he is exempt
                    and the Meshale'ach is liable.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN DO WE SAY EIN SHALI'ACH L'DEVAR AVEIRAH? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> We do not write a document for
                    Metaltelim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Chisda):</font></b> It discusses rental of land.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THIEVES AND (OPEN) ROBBERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> If witnesses saw Reuven hide in a forest
          (to steal animals that graze there) and slaughter or sell
          them, he pays four or five.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> He did not do Meshichah!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> He hit the animals with a stick
          (so they would move. This is Meshichah.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Since witnesses saw him, he is a Gazlan (open
          robber. Only a Ganav (covert thief) pays four or five)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Since he was trying to hide, he is a Ganav.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, what is the case of a Gazlan?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (R. Avahu):</font></b> It is like Benayahu ben Yehoyada
          - 'he stole the spear from the hand of the Mitzri...'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (R. Yochanan):</font></b> It is like the people of
          Shechem - 'they waited in ambush on the hilltops, and
          would rob anyone who passed.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't R. Avahu learn from R.
               Yochanan's verse?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Since they hid (until people came), they
               are thieves.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yochanan holds that they hid only so people
               would not (see them and) flee.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why does the Torah punish thieves more than
          (open) robbers?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (R. Yochanan ben Zakai):</font></b> A robber does not
          disrespect Hash-m more than he disrespects people. He
          openly defies both;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A thief defies Hash-m (without fear), but he
               fears people and hides from them;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He acts as if Hash-m does not see or hear what he
               does - 'woe to those who delve deeply to (try to)
               conceal their counsel from Hash-m; they act in
               darkness';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Also, 'they said 'Hashem does not see or
                    understand.''
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Also, 'they said 'Hashem abandoned the
                    land, he does not see.''
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	R. Meir:</font></b> R. Gamliel gave a parable. This is like two
          people in a city who made parties. One invited the people
          of the city, but not the king's children. The other
          invited neither. The punishment of the former is greater.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	R. Meir:</font></b> How great is work! One who steals an ox
          deprives the owner of its labor. He pays five times the
          value;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who steals a Seh, which does not work, pays
               only four times.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	R. Yochanan ben Zakai:</font></b> How great is the honor of
          people! When one steals an ox, the ox walks. The thief
          pays five times the value;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who steals a Seh must carry it on his
               shoulders (he is disgraced). He pays only four
               times.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>RAISING ANIMALS IN ERETZ YISRAEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We may not raise small animals (i.e. that do
          not work) in (settled parts of) Eretz Yisrael, but we may
          raise them in Surya or wildernesses of Eretz Yisrael.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	We may not raise chickens in Yerushalayim lest they
          cause Tum'ah to Kodshim. Kohanim (who eat Terumah) may
          not raise chickens anywhere in Eretz Yisrael;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	One may not raise pigs anywhere. One may raise dogs
          only if they are tied on a leash.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	We may not set traps for doves within four Mil of a 
          settled area.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Beraisa #1):</font></b> We may not raise small animals
          in Eretz Yisrael, but we may raise them in forests of
          Eretz Yisrael;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	In Surya, we may raise them even in settled areas, and
          all the more so in Chutz la'Aretz;
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa #2):</font></b> We may not raise small animals in Eretz
          Yisrael, but we may raise them in wildernesses of
          Yehudah, or near Ako;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	One may raise large animals, because we do not impose a
          decree that the majority of the Tzibur cannot fulfill;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is not necessary to raise small animals.
               People can get them (for Korbanos or to eat) from
               Chutz la'Aretz;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Large animals are constantly needed for labor. It
               is not feasible to get them from Chutz la'Aretz.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Even though one may not raise small animals in Eretz
          Yisrael, one may get one within 30 days of when he needs
          it for a festival or for his son's wedding feast;
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	He may not keep the last animal 30 days.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that if one bought some
               animals 30 days before the Regel and some just
               before it, he may first slaughter the former and
               keep the latter until 30 days from their purchase.
               The Beraisa teaches that this is not so. He may not
               leave them after the Regel at all.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	A butcher may buy what he will need to slaughter for
          the market day. He may not leave the last animal bought
          after the market day until 30 days (from its purchase).
<br>

<p>

sjt:
</p><p>
<font><b>2) HE HIT IT WITH A STAFF</b></font><b>
<br>QUESTION:</b> Rebbi Elazar states that when people saw the Ganav hiding in the woods when he stole and slaughtered (or sold) the animal, he is Chayav for Arba'ah v'Chamishah. The Gemara asks why is he Chayav if he did no act of Kinyan, such as Meshichah, to acquire the animal through Geneivah? Rav Chisda animals that the case is where the Ganav hit the animal with his staff and made it move. Such an act is an act of Kinyan.
</p><p>
Why does Rav Chisda say that the Ganav hit the animal and made it move? He acquires it even if he merely called to it and it came to him, as this is a valid Kinyan for an animal.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>PNEI YEHOSHUA</b> earlier (56b) writes that Rav Chisda's answer is 'Lav Davka,' and the Gemara means that even if the Ganav called to the animal and it came to him, he acquired it through Geneivah. (The Pnei Yehoshua there explains why the Gemara specifically mentions the case of hitting the animal and not calling out to it, but his explanation applies only to that Sugya and not to the Sugya here.)
</p><p>
(b) The <b>ME'IRI</b> (56b) writes that the only situation in which calling to the animal and having it come in response to one's voice is considered Meshichah is where one buys the animal or receives it as a gift. In those cases of Kinyan, the one who acquires the animal has the consent of the original owner. In contrast, to acquire the animal with a Kinyan <i>Geneivah</i>, it does not suffice to have the animal come in response to one's beckoning. Rather, the Ganav must do a physical act of Meshichah or hit the animal with his staff. (I. Alsheich)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>RAISING SMALL ANIMALS IN ERETZ YISRAEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - Talmidim) Question:</font></b> May one raise (small
          animals)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (R. Gamliel):</font></b> Yes.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah forbids this!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, they asked if one may keep a small
          animal for 30 days before the festival;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Gamliel permitted this, on condition that it
               does not graze with the herd (e.g. of cattle, which
               one may raise). Rather, he must tie it to the bed.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A case occurred in which a Chasid was
          groaning. Doctors said that to be cured he needs warm
          milk (straight from the animal) every morning. They
          brought a goat and tied it to his bed. He suckled every
          morning.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	One day his friends came and saw the goat. They were
          outraged to see an 'armed robber' in his house, and left.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	They could not find another thing he had done wrong. He
          himself, as he was dying, confessed that his only
          transgression was disobeying the decree. (Meiri - even
          though one may transgress Isurim for Piku'ach Nefesh, one
          should be more stringent about something forbidden by a
          decree because it harms others.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	R. Yishmael:</font></b> My father's house in Galil was destroyed
          because they used to graze small animals in forests and
          judge monetary cases alone (without a Beis Din of three).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though they had forests near their houses,
               someone else owned a small field on the way to the
               forest.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a shepherd repents, he need not sell his
          whole flock immediately. He may sell it little by little.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Similarly, if a convert inherited dogs and pigs, he
          need not sell them all immediately. He may sell them
          little by little.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Similarly, if one who vowed to buy a house and marry a
          woman in Eretz Yisrael, we do not force him to fulfill
          this immediately. He may wait until he finds a suitable
          house and wife.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	A man was pressuring his mother to get married. She
          swore that she would not refuse anyone. She was swarmed
          with improper men. Chachamim ruled that she intended only
          for someone appropriate for her.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ANIMALS THAT ONE MAY RAISE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Just like we may not raise small Behemos,
          also we may not raise small Chayos.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon ben Elazar says, we may raise Kufri (midget;
          some say, large hunting) dogs, cats, monkeys, and bush
          weasels because they clean the house from mice.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is a bush weasel?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> It is a rodent with thin (another
          version - small) thighs.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #1 (Rav Yehudah citing Rav):</font></b> In Bavel, we
          adopted the law of Eretz Yisrael to forbid raising small
          animals.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rav Ada bar Ahavah (to Rav Huna):</font></b> Why do you have small
          animals?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rav Huna:</font></b> My wife Chovah guards them from damaging.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rav Ada bar Ahavah:</font></b> She should bury her son!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> As long as Rav Ada was alive, none of Rav Huna's
               children from Chovah survived.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #2 (Rav Huna):</font></b> After Rav came to Bavel, we
          adopted the law of Eretz Yisrael to forbid raising small
          animals. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Rav, Shmuel and R. Asi went to a circumcision. Some say
          that it was a feast in honor of the redemption of a
          firstborn son. Rav did not want to enter in front of
          Shmuel; Shmuel did not want to enter in front of R. Asi;
          R. Asi did not want to enter in front of Rav.
<br>
<br>

sjt:
<font><b>1) THE IDENTITY OF 'A CERTAIN CHASID'</b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa which relates an incident about 'a certain Chasid' who became ill, whom the doctors told that the only thing for him to do was to drink raw milk of a goat every morning. They brought him a goat, which he tied to the legs of his bed in order to prevent it from grazing outside so that he not transgress the prohibition against raising a Behemah Dakah in Eretz Yisrael. Nevertheless, when his friends saw that he had a goat in his home, they abstained from visiting him and they called him a robber. The Beraisa relates that this Chasid had performed no other sin in his life.
</p><p>
Who was this Chasid?
</p><p>
<b>ANSWER:</b> The Gemara later (103b) and in Temurah (15b) relates that whenever an incident is recorded that involves 'a certain Chasid,' it refers either to Rebbi Yehudah ben Bava or to Rebbi Yehudah b'Rebbi Ila'i. Which one of those Chasidim is the subject of the incident recorded here? The <b>SHITAH MEKUBETZES</b> in the name of the <b>GA'ON</b> asserts that it is Rebbi Yehudah ben Bava. Indeed, the Yerushalmi (Sotah 9:10) and the Tosefta (8:4) state this explicitly (as cited by the Yefeh Einayim and the Mitzpeh Eisan). (See also Insights to Shabbos 127:2.) (I. Alsheich)
</p><p>


<font><b>2) THE SIN OF THE CHASID</b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa which relates an incident about 'a certain Chasid' who became ill, whom the doctors told that the only thing for him to do was to drink raw milk of a goat every morning. They brought him a goat, which he tied to the legs of his bed in order to prevent it from grazing outside so that he not transgress the prohibition against raising a Behemah Dakah in Eretz Yisrael. Nevertheless, when his friends saw that he had a goat in his home, they abstained from visiting him and they called him a robber. The Beraisa relates that this Chasid had performed no other sin in his life.
</p><p>
Why did his friends accuse of him of sinning? The Gemara in Sanhedrin (74a) teaches that when a person's life is in danger he is permitted to transgress an Isur in order to save his life (except for the three Isurim of Shefichas Damim, Giluy Arayos, and Avodah Zarah). Hence, he was permitted to keep the Behemah Dakah in order to save his life. What sin did he commit?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TORAS CHAIM</b> in Eruvin (21b, DH Mutav) answers based on the opinion of the <b>ROSH</b> and the <b>TUR</b> (YD 157) who rule that if a person wants to conduct himself stringently and allow himself be killed in order to avoid a transgression, he is permitted to do so. This Chasid was on such a lofty level of Avodas Hash-m that the act of keeping a Behemah Dakah in his home, instead of giving up his life, was considered a sin. (This is also the view of the <b>RAMBAN</b> in Kesuvos (19a), who writes that it is a 'Midas <i>Chasidus</i>' to let oneself be killed and not transgress an Aveirah. Accordingly, this act was considered a sin according to the great degree of Chasidus of Rebbi Yehudah ben Bava.)
</p><p>
(b) The Toras Chaim also explains the Gemara according to the view of the <b>RAMBAM</b>. The Rambam (Hilchos Yesodei ha'Torah 5:1) rules that one is <i>not</i> permitted to be stringent and let himself be killed instead of doing a sin. The Rambam writes that one who lets himself be killed instead of doing a sin is 'Mischayev b'Nafsho' ('guilty for his life'). Why, then, was the Chasid's act of keeping a Behemah Dakah called a sin?
</p><p>
The Toras Chaim explains that although the Chasid had no way to cure himself other than by drinking the milk of a goat each morning, nevertheless he would not have <i>died</i> without the milk. His condition of 'Gone'ach mi'Libo' would have persisted.
</p><p>
The <b>MAHARSHA</b> (Chidushei Agados) also suggests this answer.
</p><p>
<b>RAV BETZALEL RENSBURG</b> (in Hagahos) questions this approach. The Gemara in Kesuvos (60a) teaches that a sick person is permitted to drink the milk of a goat on Shabbos, because even though milking a goat on Shabbos is an Isur d'Rabanan (Mefarek kel'Achar Yad), nevertheless 'in a situation of pain, the Rabanan did not prohibit it.' Here, too, the Chasid was in pain, and since the prohibition against keeping a Behemah Dakah is only an Isur d'Rabanan, 'in a situation of pain, the Rabanan did not prohibit it'!
</p><p>
This question may be answered with the words of the <b>ME'IRI</b>. The Me'iri explains that in a case in which the Isur d'Rabanan involves an enactment made to prevent loss to other people, one must be exceedingly stringent. Although the Me'iri himself maintains that the Chasid should have given his life and not transgressed the Isur d'Rabanan (since keeping a goat in one's home is a potential source of damage for others), and the Maharsha maintains that the Chasid's life was not in danger, nevertheless the Me'iri's explanation that this Isur d'Rabanan is an especially stringent one suffices to explain the difference between the case in the Gemara in Shabbos, where the sick person is allowed to perform the Isur d'Rabanan, and the case here, where keeping a goat in one's home is considered a sin.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>AMIRAH L'NOCHRI ON SHABBOS</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Acha bar Papa):</font></b> If one who buys a house in
               Eretz Yisrael, the document of sale may be written
               on Shabbos.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection:</font></b> This cannot be!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> We tell a Nochri to write the document.
               Normally, Amirah l'Nochri (asking him to do what is
               forbidden to Yisrael) is Shevus (forbidden
               mid'Rabanan). Here, Chachamim did not decree, to
               promote settling Eretz Yisrael.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Bava Metzi'a 10b (Ravina):</font></b> Ein Shali'ach l'Devar
               Aveirah only when the Shali'ach is Bar Chiyuva
               (liable for transgressing).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Sama):</font></b> Ein Shali'ach l'Devar Aveirah only when
               the Shali'ach can choose whether or not to comply.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 90a - Question:</font></b> May Reuven tell a Nochri 'muzzle my
               cow and thresh with it'?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Amirah l'Nochri is forbidden. Is this a
                    stringency of Shabbos (since one who desecrates
                    Shabbos is liable to death), but it does not
                    apply to muzzling, which is only a Lav? Or, is
                    there no distinction!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer - Question (from Eretz Yisrael):</font></b> If Nochrim
               steal bulls from Yisraelim, castrate them and return
               them, what is the law?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Answer (Shmuel's father):</font></b> This is a ruse. We
                    force the owners to sell them. (Even though
                    castration is only a Lav, one may not ask a
                    Nochri to do it.)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rejection (Rav Papa):</font></b> In Eretz Yisrael, they hold
               like Rav Chidka, who forbids Nochrim to castrate. A
               Yisrael may not ask them to do so, due to 'Lifnei
               Iver.'
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (Bava Metzi'a 52b) brings the Sugya on 90a.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Shabbos 6:21):</font></b> If a Nochri brought
               his things into Levi's house on Shabbos it is
               permitted, even if Levi said 'leave them in this
               corner.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> We totally permit Amirah
                    l'Nochri about his Melachah. Even if his things
                    are Muktzah, one may tell him where to put
                    them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (7:15):</font></b> Amirah l'Nochri is forbidden on
               Shabbos. We permit only to promote settling Eretz
               Yisrael, but not for other Mitzvos like Bris Milah
               (Eruvin 68a).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 7:6):</font></b> One may tell a Nochri to
               eat a Neveilah, for a Yisrael may put a Neveilah in
               a Nochri's mouth, like he commands the Nochri. The
               Gemara asked about when a Yisrael may not do what he
               commands the Nochri, e.g. muzzling. Similarly, one
               may not tell a Nochri 'cook this meat for yourself
               on Shabbos', even if he need not feed the Nochri.
               Rav Sadya Gaon learns from our Gemara that even
               before Shabbos, one may not give money to a Nochri
               and tell him to buy a certain item. Even though the
               Nochri will not thresh immediately, if one were
               Chayav Misah for muzzling, it would be forbidden to
               tell a Nochri to do so. I challenge his proof, for
               here he commands at a time when the Isur applies.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Pilpulei Charifta (9):</font></b> Even though buying is
                    forbidden only mid'Rabanan, it involves a
                    Chiyuv Misah, i.e. transferring from one Reshus
                    to another.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nimukei Yosef:</font></b> If Levi has his wallet in Reshus
                    ha'Rabim just before Shabbos, we are lenient to
                    let him give it to a Nochri (to take to Levi's
                    home), for a person is frantic about his money.
                    The Ran proves from here that even before
                    Shabbos one may not tell a Nochri to do
                    Melachah on Shabbos.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rashi (71b DH Bishlomo):</font></b> Mid'Rabanan, we are
               stringent to say that a Nochri can be a Yisrael's
               Shali'ach.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 307:21):</font></b> On Shabbos, one may not
               tell a Nochri 'cook this meat for yourself', even if
               he need not feed the Nochri.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav b'Hagahos):</font></b> The Mordechai
                    (Shabbos 459) permits telling a Nochri 'do your
                    Melachah' on Shabbos. The Rosh forbids.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (73):</font></b> Since the Yisrael may not
                    do so, we forbid Amirah l'Nochri, even though
                    the Yisrael gets no benefit. Chachamim did not
                    forbid if the meat never belonged to the
                    Yisrael and the Nochri acts for himself.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishnah Berurah (74):</font></b> One may not tell the
                    Nochri even before Shabbos.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (136):</font></b> Since he tells the Nochri
                    to do so, this shows that he wants him to do
                    so, so he is like his Shali'ach.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> One may tell him to do Melachah for himself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kaf ha'Chayim (138):</font></b> A doctor may tell a Nochri
                    what to do with his own medicine. If the
                    Yisrael's oil is needed, he should sell it to
                    him before Shabbos.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kaf ha'Chayim (141):</font></b> If Levi hired a Nochri to
                    do a Melachah for a fixed wage, on Shabbos
                    David may tell the Nochri to do it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (143):</font></b> Levi may tell a Nochri to
                    move Levi's Kli she'Melachto l'Isur to avoid
                    loss of the Kli, for if Levi needed the Kli, he
                    could move it.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (144):</font></b> One may tell the Nochri to
                    do Melachah with his own things even if the
                    Yisrael will benefit, e.g. 'extinguish your
                    fire', so the Yisrael's property will not burn.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b></b> Question (Teshuvas Pnei Yehoshua EH 3):
                    According to those who are stringent to say
                    that Yesh Shelichus l'Nochri, why was the
                    Gemara unsure about Amirah l'Nochri for a Lav?
                    Since Yesh Shelichus l'Nochri, it is as if the
                    Yisrael does it! Rav Sama says Ein Shali'ach
                    whenever the Shali'ach can choose whether or
                    not to do it. Ravina says Yesh Shali'ach
                    whenever the Shali'ach is not Bar Chiyuva. How 
                    can he answer? Perhaps we asked according to
                    Rav Sama. However, throughout Shas we say that
                    Amirah l'Nochri is Shevus. According to Ravina,
                    it is mid'Oraisa, for Yesh Shali'ach!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Answer (Beis Meir 14):</font></b> Ein Shali'ach does not
                    apply to Amirah l'Nochri. It is only when
                    Hash-m despises an action, e.g. castration or
                    muzzling, even when Nochrim do so. Tosfos
                    (Chulin 115a DH Kol) asked why 'all that Hash-m
                    called abominable' does not forbid an animal
                    castrated by Nochrim. He answered that since
                    the Torah forbids to the Mizbe'ach, we infer
                    that it is permitted to people. Therefore,
                    Shali'ach l'Devar Aveirah applies. It is a
                    Mitzvah for a Yisrael and his (property) to
                    rest on Shabbos. Melachah is not an intrinsic
                    Aveirah. The Torah allows putting a pot next to
                    a fire before Shabbos, so it will cook on
                    Shabbos. A Nochri who observes Shabbos is
                    Chayav Misah! Shali'ach l'Devar Aveirah does
                    not apply, for the Yisrael rests. Shelichus
                    does not apply even to some Mitzvos Aseh, e.g.
                    to wearing Tefilin.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Question (Beis Meir):</font></b> One may not make Havdalah
                    on a lamp lit on Shabbos, even if a Nochri lit
                    it, for it did not cease from forbidden
                    Melachah (Berachos 53a, Shulchan Aruch OC
                    298:5). Perhaps it is merely a trace of an
                    Aveirah. However, Rashi (Shabbos 153a DH Mai)
                    says that Shelichus applies to a Nochri on
                    Shabbos. He must refer to the Shevus of Amirah
                    l'Nochri. Also the Ran (cited in Nimukei Yosef)
                    forbids due to Shelichus, for he holds that
                    Amirah l'Nochri is only regarding Shabbos.
                    Rashi need not hold like Ravina. He can say
                    that just like Ein Shelichus l'Nochri, but
                    l'Chumra Yesh Shelichus, just like l'Chumra a
                    Nochri can be a Shali'ach l'Aveirah.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Chasam Sofer (OC 84):</font></b> The Pnei Yehoshua (YD 3)
                    asked that according to the opinion that Yesh
                    Shelichus l'Nochri l'Chumra, why did the Gemara
                    (Bava Metzi'a 90a) ask about telling a Nochri
                    to castrate or muzzle animals? Yesh Shali'ach
                    l'Devar Aveirah, since the Nochri is not Bar
                    Chiyuva! We must say that the Sugya is like the
                    opinion that Yesh Shali'ach only when the
                    Shali'ach has no choice. The Rambam forbids
                    Ribis through a Nochri mid'Oraisa, and
                    obligates returning it. He holds that Chachamim
                    forbade any Isur done through a Nochri even
                    b'Di'eved, e.g. cooking on Shabbos or
                    castration. (Those who disagree say that
                    Chachamim were more stringent about Shabbos and
                    scheming, i.e. castration). The Rambam does not
                    hold that Yesh Shelichus l'Nochri mid'Oraisa.
                    Maharshach says that even though Yesh Shelichus
                    l'Nochri, Chachamim stressed Amirah l'Nochri.
                    It is more severe, for the Yisrael transgresses
                    'v'Daber Davar (discussing Melachah).' This is
                    reasonable only if Shelichus l'Nochri is also
                    mid'Rabanan. Alternatively, he holds that it is
                    mid'Oraisa, except for Shabbos. Similarly,
                    bowing to idolatry is an action with one's
                    body, and Shelichus does not apply to it.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN DO WE SAY EIN SHALI'ACH L'DEVAR AVEIRAH? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They decided that Shmuel would wait outside.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't Rav or R. Asi wait outside?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Really, both of them were greater than
               Shmuel. Rav honored Shmuel and would not enter in
               front of Shmuel because he regretted that he once
               cursed Shmuel.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Meanwhile, a cat came and cut off a child's hand.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> One may kill cats, and one may not raise
               them. There is no Isur to steal them, nor a Mitzvah
               to return a lost cat.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If one may kill them, obviously one may
               not raise them!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that it is
               permitted to kill them, but there is no Isur to
               raise them. Rav teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> If there is no Isur to steal them, obviously
          there is no Mitzvah to return a lost cat!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> There is not even a Mitzvah to return
          the skin (if one finds it dead).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Shimon ben Elazar):</font></b> We may raise
          Kufri dogs, cats, monkeys, and bush weasels because they
          clean the house from mice.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> White cats often harm people. One may not raise
          them. One may raise black cats.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> The cat in the above story was black!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> It was a black cat born to a white cat.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question:</font></b> Ravina never settled that question!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Ravina):</font></b> May one raise a black cat born
               to a white cat?
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer:</font></b> Ravina asked about when the cat's grandmother
          was black. The grandmother of the cat that cut off a
          child's hand was white.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TEACHINGS OF RAV PAPA'S SON</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Acha bar Papa (or one of his brothers)):</font></b> We
          announce (Rashi - with Shofaros and trumpets) on Shabbos
          about boils, so that people will pray. A locked door is
          not easily opened. If one buys a house in Eretz Yisrael,
          the document of sale may be written on Shabbos.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> For other calamities that come,
          such as boils, locusts, flies, wasps, mosquitoes, and
          invasions of snakes and scorpions, only individuals cry
          out in prayer.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> For dry boils, we announce. For moist boils,
          only individuals cry out.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Yehoshua ben Levi):</font></b> The boils that Hash-m brought
          on the Mitzriyim were wet on the outside and dry on the
          inside.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He learns from 'Avabu'os Pore'ach' - they were
               moist (only) where they spread (on the outside).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Acha taught that a locked door is not
          easily opened. To what does this refer?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Mar Zutra):</font></b> If one was unable to get
          Semichah (ordination to give Halachic rulings), it will
          be hard to get it later.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> If Hash-m afflicts someone, He is
          not quick to bestow good upon him.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3 (Rav Acha mi'Difti):</font></b> (If Hash-m afflicts
          someone,) He will never bestow good upon him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is wrong. Rav Acha discussed only his own
               situation. (Chachamim voted to make him Rosh
               Yeshiva, but it never occurred.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Acha):</font></b> If one buys a house in Eretz Yisrael, the
          document of sale may be written on Shabbos.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection:</font></b> This cannot be!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> It means like Rava said (elsewhere), we tell a
          non-Jew to write the document.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though normally (mid'Rabanan) one may not
               ask a non-Jew to do forbidden labors, here Chachamim
               did not decree, to promote settling in Eretz
               Yisrael.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Shmuel bar Nachmani):</font></b> If one buys a city in Eretz
          Yisrael, we force him to buy paths to it from all four
          directions, to promote settlement of Eretz Yisrael.
<br>

sjt:
</p><p>
<font><b>3) THE REASON FOR THE PROHIBITION OF 'AMIRAH L'NOCHRI'</b></font><b>
<br>OPINIONS:</b> The Gemara discusses the law of 'Amirah l'Nochri' -- telling a Nochri to perform a Melachah on Shabbos. Telling a Nochri to perform a Melachah for a Jew is one of the decrees of Shevus enacted by the Rabanan. Although a Nochri transgresses no prohibition when he does a Melachah on Shabbos, the Rabanan prohibited a Jew from telling a Nochri to do a Melachah for him on Shabbos.
</p><p>
Several reasons for this prohibition are suggested by the Rishonim.
</p><p>
(a) The <b>RAMBAM</b> (Hilchos Shabbos 6:1) writes that the Rabanan prohibited it 'in order that Shabbos not be taken lightly in one's eyes, lest one come to do the Melachah himself.'
</p><p>
(b) <b>RASHI</b> in Avodah Zarah (15a, DH Keivan) writes that the reason for the decree is the verse, 'Mimtzo Cheftzecha v'Daber Davar' -- '... and you honor it (Shabbos) by not engaging in your own affairs, from pursuing your own needs <i>and speaking [forbidden] speech</i>' (Yeshayah 58:13), which establishes guidelines for speech on Shabbos. One may not tell a Nochri to do a Melachah on Shabbos because such <i>speech</i> is forbidden on Shabbos.
</p><p>
(c) <b>RASHI</b> in Shabbos (153a, DH Mai Ta'ama) implies that the reason why one may not tell a Nochri to do a Melachah on Shabbos is that when the Nochri does the Melachah, he acts as the Shali'ach of the Jew and it is considered as though the Jew himself is doing the Melachah. (With regard to how a Nochri can be a Shali'ach for a Jew, see <b>NESIVOS HA'MISHPAT</b> 182. See also Nesivos ha'Mishpat 348:4.)
</p><p>
It seems that there is a practical difference between these explanations. According to Rashi in Avodah Zarah, one should be <i>permitted</i> to tell a Nochri <i>before</i> Shabbos to do a Melachah for him on Shabbos, since the Jew's 'Dibur,' speech, is not being done on Shabbos. According to the other two explanations, the prohibition will apply regardless of when the Jew tells the Nochri to do the Melachah, whether on a weekday or on Shabbos itself.
</p><p>
(See <b>KOVETZ SHI'URIM</b>, Beitzah #49. The Kovetz Shi'urim writes that there are <i>two</i> elements of Isur involved with Amirah l'Nochri. The first is that the Jew makes the Nochri a Shali'ach to do Melachah for him, and the second is that speaking such words itself is prohibited, either because of 'Mimtzo Cheftzecha' or because of the reason the Rambam gives.) (I. Alsheich) (See Insights to Shabbos 150:1.)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CONDITIONS OF INHERITING ERETZ YISRAEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Yehoshua made the inheritance of Eretz
          Yisrael conditional on the following 10 laws (we will
          explain on Amud B why there are only 10):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> People may graze animals in forests;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> People may collect wood from (others') fields;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> People may take grass from anywhere, except for a
               field of clover;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> In all places, people may cut branches to plant
               them to be new trees, except for stumps of olive
               trees;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Local city dwellers have first rights to take
               water from a new spring;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> People may fish (with hooks on strings) in Lake
               Teveriyah, but they may not build traps, for these
               interfere with boats;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> People may relieve themselves in back of a fence,
               even in a field of saffron.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> After crops are gathered from a field until it is
               plowed (for next year's crop), people may walk
               through it, until the time of the second rainfall;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> People may walk on the side of the road (on the
               border of others' property), to avoid hardened
               clumps of dirt in the middle;
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b>  One lost in a vineyard may cut vines until he
               finds his way to the road;
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b>  A found corpse is buried where it is found.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> The Beraisa permits grazing animals in
          forests, i.e. small animals (i.e. sheep) in large forests
          (this will not consume too many of the trees). One may
          not graze large animals (i.e. cattle), nor (even small
          animals) in small forests.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THINGS THAT MAY BE TAKEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> People may take wood from (others') fields.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Only thorny shrubs may be taken, but not other wood.
          One may take only from what is growing, but not from what
          was already cut. One may only take from moist trees, not
          from dry trees;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	One may not uproot the trees (rather, he must leave a
          stump).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> People may take grass from anywhere, except
          from a field of clover.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Inference:</font></b> This connotes that grass helps clover.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Contradiction (Mishnah):</font></b> If grass sprouted amidst
          clover, we do not force him to uproot it to avoid the
          Isur of Kilayim (growing diverse species together, for
          surely he will eventually uproot the grasses, since they
          harm clover).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (R. Yirmiyah):</font></b> The Mishnah refers to one who
          intends to replant the clover. Grass is detrimental, it
          weakens it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa discusses one who intends to eat the
               stalks. It grows better when it is draped over
               grass.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Normally, grass is detrimental for clover.
          The Beraisa discusses clover planted for animals.
          Presumably, the owner wants the grass for his animals.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> How do we know for which it was planted?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> If it is in patches, it is for man.
          If not, it is for animals.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> In all places, people may cut branches to
          plant them to be new trees, except for stumps of olive
          trees.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(R. Tanchum and R. Beryas):</font></b> For olive saplings, one
          must leave a stump the size of an egg. For reeds and
          vines, one may cut only above the highest bulge;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding all other trees, one may cut only the
               soft branches, not the thick ones. (Others explain -
               one may cut only (in the middle) where there are
               many branches, not the pinnacle.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One may cut only new trees that do not yet yield
               fruit, but not mature trees that bear fruit.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> One may cut only from the part that does not see
               the sun - 'from the sweet fruits of the sun.'
<br>
<br>

sjt:
<font><b>1) PAYING FOR DAMAGE THAT ONE WAS PERMITTED TO DO</b></font><b>
<br>OPINIONS:</b> One of the enactments made by Yehoshua as a condition for taking possession of the land of Eretz Yisrael was that the owner of a vineyard must allow a person who became lost in his vineyard to cut down branches in order to find his way out.
</p><p>
The Gemara does not mention whether the enactment of Yehoshua merely permits the person to cut the branches in the first place, but nevertheless requires him to pay for the damage afterward, or whether the enactment completely absolves the person of any liability to the owner of the vineyard. The Rishonim present various opinions on the matter.
</p><p>
(a) The <b>RA'AVAD</b> cited by the Shitah Mekubetzes later (117b, DH u'Matzil Atzmo) writes that one certainly must pay for the branches which he cuts. The Ra'avad proves this from the Halachah in a similar case. When a person who was fleeing from someone who wanted to kill him broke dishes as he fled, he is <i>obligated</i> to pay for the dishes, with the exception of the dishes of the pursuer (Rodef). He is obligated to pay for the dishes because 'he does not have the right to save himself with the money of his fellow man.' Although he was in danger, since the danger did not come from the owner of the dishes he is obligated to pay for them. Similarly, one who becomes lost in his friend's vineyard is obligated to pay for the damages that he does to the branches, even though he has permission to break the branches in order to find his way out. It was his fault, and not the fault of the owner of the vineyard, that he became lost. This is also the view of the <b>ME'IRI</b>.
</p><p>
(b) The <b>RASHBA</b> (81b) writes that if not for the ruling of the Ra'avad (that the person must pay for the damages to the branches), he would have ruled that all of the enactments made by Yehoshua exemptions from payment, for that was the condition with which Yehoshua distributed the land. The Rashba proves this from the very fact that Yehoshua made an enactment to permit the person to cut branches in order to find his way out of the vineyard. If the person must pay for the damage that he does, there is no need for any enactment of Yehoshua; it is obvious that when a person saves himself at the expense of the property of someone else he must reimburse the owner.
</p><p>
The Ra'avad himself asks this question on his opinion. He answers that if not for the enactment of Yehoshua, it would not have been permitted for the lost person to cut the branches without the consent of the owner. Yehoshua enacted that he <i>may</i> cut the branches without the consent of the owner, as long as he pays afterward.
</p><p>
The Rashba cites further proof for his view that the person should not be required to pay for the branches that he cut. The Gemara later (end of 81b) lists other enactments that Yehoshua made which permit a person to damage someone else's property in order to save his own property, on condition that he pay for the damage afterward. (For example, he is allowed to cut the branch of his friend's bush so that his own bees do not migrate and establish their hives there, as long as he pays his friend for the branch. Similarly, when a person spills out his wine in order to use the barrels to save his friend's honey, the owner of the honey is obligated to pay for the wine.) If one must pay for the branches that he cuts as he attempts to find his way out of a vineyard, this case should have been mentioned in that list as well.
</p><p>
The <b>KOVETZ SHI'URIM</b> (#91) asks that, on the contrary, the Gemara later actually <i>disproves</i> the Rashba's opinion. The Gemara asks why the enactments mentioned in the later Beraisos are not included in the earlier Beraisa which lists the ten enactments that Yehoshua made. The Gemara answers its question by saying that the earlier Beraisa lists only enactments to which all Tana'im agree, while the later Beraisos mention the opinions of individual Tana'im. According to the Rashba, who asserts that the ten enactments listed in the earlier Beraisa include an exemption from payment, the Gemara should have answered simply that the enactment in the later Beraisos are not listed in the first Beraisa because they involve an obligation of payment. He leaves this question unanswered.
</p><p>


<font><b>2) PICKING GRASS FROM A FIELD OF 'TILTAN'</b></font><b>
<br>QUESTION:</b> One of the enactments made by Yehoshua as a condition for taking possession of the land of Eretz Yisrael was that the owner of a field must permit others to pick grass from his field, except from a field of Tiltan (fenugreek), since the growth of the grass is beneficial to the Tiltan. The Gemara questions this from the Mishnah in Kil'ayim (2:5) which says that if types of grass and Tiltan grew together, one is not obligated to uproot it (to avoid the Isur of Kil'ayim) because the grass is <i>not</i> beneficial to the growth of the Tiltan.
</p><p>
The Gemara gives two answers. In its second answer, it says that the Mishnah in Kil'ayim refers to when the Tiltan was planted for the consumption of humans, in which case the grasses are detrimental to it. The enactment of Yehoshua was made for Tiltan that was planted for the consumption of animals, and thus it is beneficial to have the grasses growing together with the Tiltan.
</p><p>
The Gemara asks, 'How do we know [for whom the Tiltan was planted]?' It answers that when planted for humans, it is planted in organized rows.
</p><p>
<b>RASHI</b> (DH u'Mena Yad'inan) explains that the Gemara's question is how does one know that a given field of Tiltan was planted for humans, such that one may pick the grasses there because of the enactment of Yehoshua.
</p><p>
Why does Rashi explain that the Gemara's question is merely how does one know that a field was planted for humans? Why does he not explain that the Gemara's question is how does one know that a field was planted for animals?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> (Mahadura Basra, DH Rashi) explains that Rashi does not explain that the Gemara's question is how do we know that a field was planted for animals, because it may be assumed that any field of Tiltan was planted for animals unless there are indications otherwise. Out of doubt, one must assume that the field was planted for animals, and thus one is prohibited from picking the grasses there. Yehoshua's enactment was that one <i>not</i> pick grasses from someone else's field when there is a <i>doubt</i> that perhaps the field was planted for animals. Yehoshua's enactment permits picking the grasses only when one is certain that the field was planted for humans. The Gemara's question, therefore, is only with regard to Yehoshua's enactment to permit one to pick grasses from a field planted for humans. The Gemara is asking how does one know that a field was planted for humans such that he may pick the grasses from the field.
</p><p>
The problem remains, however, that the Beraisa does not say that if the field <i>was planted for humans</i>, one is permitted to pick the grasses from it because of Yehoshua's enactment. The Beraisa says, in general terms, that one may pick grasses from a field 'except from a field of Tiltan,' and it does not specify what type of field is prohibited. Perhaps the Beraisa means that Yehoshua's enactment prohibits one from picking grasses from a field of Tiltan whenever there is a doubt whether it was planted for animals or for humans, and only when it is known for certain that the field was planted for humans is one permitted to pick the grasses. What, then, is the Gemara's question, according to Rashi, when it says 'how do we know -- in a case of doubt -- that the field was planted for humans, such that one is permitted to pick grasses from it?' Perhaps indeed picking grasses is prohibited until it is absolutely clear that it was planted for humans!
</p><p>
(b) Because of this problem, the Maharsha suggests a different explanation for the Gemara's question. The Gemara is not asking a question on the Beraisa which discusses the enactments of Yehoshua. Rather, it is asking a question on the Mishnah in Kil'ayim: Why does the Mishnah not require a person to uproot the Tiltan that grows together with other grasses when the Tiltan was planted for the use of humans -- 'how do we know' that it was planted for humans? People who see the field will assume that it was planted for animals and will think that the owner is transgressing the Isur of Kil'ayim! Because of this suspicion which will be aroused among people, the Chachamim should prohibit one from keeping the Tiltan and the grasses together in the field even when it was planted for human use. This is the Gemara's question.
</p><p>
(c) The <b>PNEI YEHOSHUA</b> answers the question of the Maharsha on Rashi in a different way. He explains that the words 'how do we know' are not the words of a question. Rather, they are the continuation of the words of Rav Papa. Rav Papa is teaching that there is a Heter to pick grasses even in a field of Tiltan, in a situation in which it is known for certain that the Tiltan was planted for the use of humans -- where the Tiltan is planted in organized rows. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SAVING ONESELF WITH OTHERS' MONEY</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 60b (Rav Huna):</font></b> Plishtim were hiding in stacks of
               barley of Yisrael. David asked whether he may use
               others' money (burn the stacks) to save himself.
               	The Sanhedrin answered that a commoner may not,
               but a king may.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 81b (Beraisa):</font></b> If Levi was lost in a vineyard, David
               may cut vines until he helps him find his way.
               Similarly, Levi himself may cut vines until he finds
               his way.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> One might have thought that one may cut vines only
               if he knows the way. If not, he must backtrack
               without cutting vines. The Seifa teaches that this
               is not so.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Why is this listed among enactments of
               Yehoshua? It is mid'Oraisa!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> 'You will return him' teaches that
                    it is a Mitzvah to return another's body (help
                    him find his way if he is lost).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Mid'Oraisa, one may not harm another's
               property to help him. Yehoshua enacted that he may
               cut vines for this.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 117b:</font></b> Reuven was holding a wallet with communal
               funds for Pidyon Shevuyim (redeeming captives).
               Robbers came; he gave it to them. Rabah exempted
               him.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Objection (Abaye):</font></b> He saved himself with another's
               money!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer (Rabah):</font></b> The money was for Pidyon Shevuyim.
               He redeemed himself!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> Reuven had brought his donkey on a ferry. The ferry
               was in danger of sinking; Shimon threw the donkey
               overboard, and it drowned. Rabah exempted him.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Objection (Abaye):</font></b> He saved himself with another's
               money!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer (Rabah):</font></b> Reuven threatened their lives by
               bringing the donkey aboard!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Sanhedrin 74a (Rava):</font></b> If Levi was Rodef Ploni and
               Ploni broke someone else's Kelim, he is liable. One
               may not save himself with another's money.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Kidushin 8b - Question (Rav Mari):</font></b> If a dog was
               chasing Leah, and David was Mekadesh her with a
               loaf, and she said 'give it to the dog', is she
               Makneh herself with the Hana'ah of being saved? Or,
               can she say 'you were obliged to save me!'
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> This question is unresolved.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> (Beraisa):</font></b> If one said 'be Mekudeshes to me with a
               loaf', and she said 'give it to this Oni', she is
               not Mekudeshes, even if the Oni relied on her for
               his food.
<br>        <b>  <b><font color='darkgreen'>16. </font></b></b> This is because she can say 'also you must feed
               Aniyim.'
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (44a) brings the Gemara on 117b.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos She'elah 5:1):</font></b> If money for Pidyon
               Shevuyim was deposited with Reuven, and robbers came
               and he gave it to them to save himself, he is
               exempt. This is the ultimate Pidyon Shevuyim. If the
               money was designated for particular captives, he
               must pay.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Ra'avad (in Shitah Mekubetzes 117b DH uv'Emes):
                    If Levi was Rodef Ploni, and Ploni broke Kelim
                    of anyone other than Levi, he is liable, for he
                    may not save himself with others' property.
                    Even if he is Anus, the Ones is not due to the
                    owner of the Kelim. Similarly, one lost in a
                    vineyard erred himself; the owner is not at
                    fault. Even though he pays, Yehoshua needed to
                    stipulate to permit cutting branches not in
                    front of the owner. However, why was David
                    unsure? Even if you will say that he had not
                    heard about Yehoshua's stipulation, why did the
                    Sanhedrin permit only for a king? Rather, they
                    said that only a king may do so without paying.
                    If so, one may save himself with Ploni's money
                    whether or not Ploni is there, provided that he
                    will pay him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Kama 6:12):</font></b> David did not ask whether he
               may burn others' property to save Yisre'elim. One
               may transgress anything for Piku'ach Nefesh other
               than the three Aveiros! Rather, he asked whether he
               may burn them without intent to pay for them. The
               answer was that one may not save without intent to
               pay.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rashi (60b DH v'Yatzilah):</font></b> The Sanhedrin ruled that
               he may not burn the stacks, for one may not save
               himself with another's money.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Mordechai (193):</font></b> The one who threw the donkey
               overboard was exempt because it was dangerous to
               bring it aboard. If it were normal to bring a donkey
               on a ship (e.g. nowadays) and it started acting
               wildly and threatened to sink the ship, one who
               threw it overboard would be liable, in spite of the
               mortal danger. The entire Sugya obligates one who
               used another's money to save himself from mortal
               danger. One who was Moser due to mortal Ones is
               exempt. If witnesses signed Sheker due to mortal
               Ones, they are Kesherim and exempt from paying. If
               it was monetary Ones, they are Pasul for testimony
               and liable for the loss they caused. Perhaps even
               regarding mortal Ones, one must pay if he did an
               overt action.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 359:4):</font></b> Even if one is in mortal
               danger and must steal to save himself, he may take
               only with intent to pay.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chasam Sofer (OC 208 DH u'Mah she'Chosav):
                    Witnesses may sign Sheker to save themselves,
                    but they should pay from their money to the one
                    will lose due to this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Afikei Yam (2:32 DH uv'Emes):</font></b> Others are
                    commanded to use their money to save Ploni. Why
                    can't Ploni use others' money to save himself?
                    Rashi forbids this when the others are not
                    there, for then they are not obligated. It
                    seems that Tosfos and the Rosh obligate one who
                    saved himself with another's money only because
                    one who saves need not do so from his own
                    money.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Hafla'ah (Kesuvos 19a Tosfos DH v'Omar):</font></b> Rav
                    Chisda discussed only an Anas who intended to
                    kill the witnesses. (In CM 292 and 388, we
                    distinguish whether or not the Anas intended to
                    take from the one he confronted.) Then, they
                    may not exempt themselves by signing Sheker
                    against another. He forbids to steal from or
                    cause a loss to another to heal oneself. Rava
                    replied that even in this case, we permit
                    anything except for the three Aveiros.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Binyan Tziyon (168):</font></b> The Hafla'ah holds that
                    Tana'im and Amora'im argue about whether or not
                    Levi may save himself with another's money if
                    the Anas came to kill Levi.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gilyon Maharsha:</font></b> If one merely needs to use
                    another's item for Piku'ach Nefesh, he should
                    take it with intent to pay rental.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 380:3):</font></b> If Levi was Rodef Ploni
               and Ploni broke someone else's Kelim, he is liable.
               One who saves himself with another's money is
               liable.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (378:2):</font></b> The Shulchan Aruch obligates one
                    who damaged b'Ones. The Rema exempts if it was
                    total Ones. I say that if he intended, he is
                    liable even for total Ones, like a Nirdaf who
                    broke Kelim.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Or Gadol p.20):</font></b> We learn that Ones is
                    exempt from 'you will not punish the Na'arah
                    Me'orasah (who was raped)'. Ones exempts from
                    Misah even if one intended to sin; the same
                    applies to damages. The Minchas Chinuch says
                    that we exempt one who transgressed due to Ones
                    for that Aveirah, but not for Ones of illness.
                    Likewise, we exempt only if the Anas wanted
                    Ploni's money, but not if he Stam demanded
                    money.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Yam Shel Shlomo (10:47):</font></b> A Moser is only
                    Gerama, so he is exempt if he was coerced. If
                    he picked up the item, he acquired it to be
                    liable for it.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gilyon Maharsha:</font></b> Here he is liable even though
                    he did not pick it up! Rather, here he is
                    liable because he was not forced to break.
                    There, he was forced to hand over the item
                    (therefore he is liable only because he
                    acquired it).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ONE WHO WAS MOSER TO SAVE HIMSELF </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Local city dwellers have first right to take
          water from a new spring...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah bar Rav Huna):</font></b> They must pay the one from
               whose property it emanates.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Halachah does not follow Rabah bar Rav Huna.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> People may fish (with hooks on strings) in
          the lake of Teveriyah, but they may not build traps, for
          these interfere with boats.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> At first, the tribes stipulated with each
          other that one may not spread large nets, which can
          interfere with river traffic, but one may hunt fish with
          small nets or traps.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> The lake of Teveriyah was in Naftali's
          portion; Naftali also received an area to spread traps in
          the south, to fulfill 'inherit the sea and the south'.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Beraisa - R. Shimon ben Elazar):</font></b> Uprooted trees
          (Meiri - everything detached) in the mountains belong to
          all the tribes. What is attached belongs to the tribe in
          which it is found.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Every tribe received in the mountain, lowland,
               dry land and valley - '... come to the land of the
               Emori and its neighbors, in the plain, mountain,
               lowland, dry land and seashore.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Also the land we took from the Kena'anim and
               Perizim was like this - 'Emori and its neighbors'
               teaches that all were the same.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PERMISSION TO USE OTHERS' PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> People may relieve themselves in back of a
          fence, even in a field of saffron.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Acha bar Yakov):</font></b> The only Chidush is that one may
          take a stone from the fence.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> This is permitted even on Shabbos.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Mar Zutra the Chasid would replace the stone. He
               told his servant to plaster it well.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> After crops are gathered from a field until
          it is plowed (for next year's crop), people may walk
          through it, until the time of the second rainfall.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> In Bavel, walking on a field harms it (and
          is forbidden) even if dew fell the previous night.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> People may walk on the side of the road (on
          the border of others' property), to avoid hardened clumps
          of dirt in the middle.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Shmuel and Rav Yehudah were walking on a road (in
          Bavel). Shmuel went to the side.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Yehudah:</font></b> Do Yehoshua's enactments also apply
               in Bavel?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shmuel:</font></b> Yes, they were also for Chutz la'Aretz.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Rav and R. Chiya were walking on the road; they went to
          the side. Rav Yehudah bar Kenosa was ahead of them,
          walking in the middle, taking big steps to avoid the
          obstacles.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav:</font></b> Who is that? That is haughtiness, not to
               rely on Yehoshua's Tanayim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Chiya:</font></b> Perhaps it is my Talmid Rav Yehudah bar
               Kenosa. All his actions are for the sake of Heaven.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Chiya found that this was so. He told Rav
                    Yehudah 'anyone else who did so would be
                    excommunicated for haughtiness.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> One lost in a vineyard may cut vines until
          he finds his way to the road.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven saw Shimon lost in a vineyard,
          Reuven may cut vines until he helps Shimon find his way.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Similarly, if Reuven is lost he may cut vines until he
          finds his way.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> What is the Chidush of the second clause?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that one may cut vines
          only if he knows the way. Otherwise, one must backtrack
          without cutting vines.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this listed among enactments of
          Yehoshua? It is mid'Oraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'You will return him' - it is a
               Mitzvah to help one who is lost to find his way.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> Mid'Oraisa, one may not harm another's property
          to help him. Yehoshua enacted that he may cut vines for
          this.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A corpse that is found is buried in that
          place.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> A corpse found on a public
          road is buried to the right or left side of the road,
          whichever place will cause less loss.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There is less loss in an unplowed field than in a
               plowed field. There is less loss in a plowed field
               than in a seeded field.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If both sides are similar, the corpse may be
               buried in either side.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (Rav Bivi):</font></b> The case is, the corpse lies on the
          width of the road. We do not bury it there, for then
          people who pass would become Tamei;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since we cannot bury it in his place, we may move
               it anywhere.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>OTHER ENACTMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa said there were 10 enactments,
          but it listed 11!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Shlomo enacted that people may walk through a
          field after the crops have been gathered (until it is
          plowed).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven gathered his crops, and does
               not allow people to walk through his field, there is
               no justification for this. They would not harm his
               field!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It says about this 'in place of being good, do
                    not be called evil'.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Question:</font></b> There is no such verse!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Answer:</font></b> This is the meaning of 'do not
                    withhold doing good for someone; if you have
                    the ability, do it.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Yehoshua made other enactments!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> When people normally put
               dung out, one may put dung in the Reshus ha'Rabim
               for 30 days so people and animals will trample on
               it. Yehoshua made this a condition for inheriting
               Eretz Yisrael.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa - R. Yishmael son of Rebbi Yochanan ben
               Berokah):</font></b> Yehoshua made the inheritance of Eretz
               Yisrael conditional on these three enactments:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Reuven's bees settled on a branch in Shimon's
                    field, Reuven may cut off the branch to
                    retrieve his bees and pay for the branch;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If Reuven was carrying a barrel of honey
                    and it broke, and Shimon was carrying a barrel
                    of wine (which is cheaper than honey), Shimon
                    should spill out his wine to save the honey.
                    Reuven to pays him the value of his wine.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  If Reuven's donkey, which was carrying
                    flax, died, and Shimon's donkey was carrying
                    wood, (which is cheaper than flax,) Shimon
                    should dump his wood and load the flax on his
                    donkey. Reuven pays to him the value of his
                    wood.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Our Tana lists only Tanayim that all agree
          about. Only one Tana holds that Yehoshua made these other
          enactments.
<br>

<p>

sjt:
</p><p>
<font><b>3) THE FISHING-RIGHTS AGREEMENT OF THE TRIBES</b></font><b>
<br>QUESTION:</b> One of the ten enactments made by Yehoshua was that anyone may fish in the bodies of water in Eretz Yisrael, as long as he does not spread out a 'Kela' (or 'Keli'ah'). This refers to setting up reeds in an area in the water in order to make a fence with which to snare fish. Such a trap is prohibited because it would disrupt the movement of boats (<b>RASHI</b>; see Background to the Daf).
</p><p>
The Gemara quotes a Beraisa which states that 'originally, the tribes stipulated with each other that no one shall spread a Keli'ah, but that they may fish with nets and traps.'
</p><p>
If the tribes initially made this condition among themselves, why did Yehoshua need to enact it?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>YAM SHEL SHLOMO</b> (in 'Eser Takanos Yehoshua,' Takanah 6) answers that Yehoshua enacted that <i>any person</i> is permitted to cast a hook or net to fish, and that he is prohibited from fishing with a 'Kela.' The <i>owner</i> of the body of water, on the other hand, is permitted to fish even with a 'Kela.' (This is not like the view of Tosfos, who says that the owner is also not allowed to fish with a 'Kela'). Later, the tribes agreed among themselves that even the owner may not fish with a 'Kela,' so that he not prevent the boats of others from passing. However, this created an imbalance in the rights of the owner, since all other people now had the same fishing rights in the owner's body of water as the owner. Therefore, the tribes also enacted that others may fish <i>only</i> with a hook and <i>not</i> with nets, while the owner may fish with nets.
</p><p>
(b) The <b>TORAS CHAIM</b> answers that when the Beraisa mentions the agreement the tribes made among themselves 'originally,' it means that they <i>added</i> to Yehoshua's original enactment when they were G-d-fearing and upright. They 'stipulated with each other' means that the owners of the bodies of water agreed that no one would spread a 'Kela,' but that they may fish with nets. Later, however, when the tribes became corrupt and parsimonious, the practice reverted back to the enactment of Yehoshua, which gave permission to everyone to fish only with hooks. (According to this approach as well, when the earlier Beraisa mentions that Yehoshua enacted that they may fish with hooks (and with nets) as long as they do not spread a 'Kela,' it refers only to <i>others</i> not spreading a 'Kela.' The owners <i>may</i> spread a 'Kela.')
</p><p>
(c) The <b>PNEI YEHOSHUA</b> writes that when the earlier Beraisa says that Yehoshua enacted that anyone may fish in the bodies of water in Eretz Yisrael 'as long as he does not spread out a Kela,' those words do not describe part of Yehoshua's enactment, but rather they describe the tribes' own agreement among themselves. Yehoshua enacted only that every person has the right to fish with hooks. The Beraisa adds, 'as long as he does not spread out a Kela,' which was the tribe's addition to Yehoshua's enactment. The Beraisa relates the practical Halachah when it lists the initial enactment. This explanation is consistent with the view of Tosfos who says that the injunction against spreading a 'Kela' applies to the owners as well. (See also <b>MAHARSHA</b> in Mahadura Basra.)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ANOTHER ENACTMENT OF YEHOSHUA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Ravin said that R. Yochanan taught that if
          the foliage of Reuven's tree extends into Shimon's field,
          or if Reuven's tree is planted on the border of Shimon's
          field, Reuven may bring Bikurim and recite ('...the land
          that You (Hash-m) gave to me...', even though it did not
          (fully) grow in Reuven's land). Yehoshua made the
          inheritance of Eretz Yisrael conditional on this
          enactment.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, the teaching about Yehoshua's 10
          enactments is not a Beraisa, rather, a teaching of R.
          Yehoshua ben Levi. R. Yochanan argues with R. Yehoshua
          ben Levi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Gaviha recited this teaching in R. Yehoshua
               ben Levi's name.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>EZRA'S ENACTMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Ezra made 10 enactments:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We read the Torah at Minchah on Shabbos;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We read the Torah on Mondays and Thursdays;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Beis Din sits to judge on Mondays and Thursdays;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> One should launder clothes on Thursday;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> We eat garlic on Shabbos night;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> A woman should rise early on Erev Shabbos and
               bake (bread);
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> A woman should wear a Sinar (underpants);
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> A woman should wash her hair before immersing;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> (Perfume) peddlers should go around in cities;
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b>  One who had an emission of seed must immerse.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	We read the Torah at Minchah on Shabbos.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is for the sake of idle people who do not
               come to hear it on Mondays and Thursdays.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	We read the Torah on Mondays and Thursdays.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> This was enacted before Ezra (in the days of
          Moshe)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'They traveled three days in the
               wilderness, and did not find water' - expounders say
               that this refers to Torah - 'all who are thirsty
               should come to water.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Because they went three days without Torah, they
               wearied. Prophets among them enacted to read the
               Torah on Shabbos, Mondays and Thursdays, so there
               would never be three days without Torah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> At first, they enacted that one man read three
          verses, or alternatively, that three men will read one
          verse each;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Three corresponds to Kohanim, Leviyim and
               Yisraelim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Ezra enacted that three men should read 10
               verses, corresponding to the 10 men who have no job
               and are always in Beis ha'Keneses.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Beis Din sits to judge on Mondays and Thursdays.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because people come to the city on those
               days to hear the Torah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	One should launder clothes on Thursday.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is to honor Shabbos (so he will have freshly
               laundered clothing for Shabbos. Nevertheless, one
               should not launder on Friday, lest he not have
               enough time to prepare the other needs of Shabbos).
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	We eat garlic on Shabbos night.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because (garlic increases semen, and)
               Shabbos is the ideal time for Bi'ah - '(Hash-m) will
               give its fruit in its time';
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> The verse discusses one who has
                    Bi'ah only on Shabbos nights.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Garlic does five things: it satiates,
               it warms a person, it makes his countenance radiant,
               it increases a man's seed, and it kills intestinal
               lice.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Some say, it also increases love and dispels
                    envy.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	A woman should rise early on Erev Shabbos and bake
          (bread).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is so bread will be available for the poor.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	A woman should wear a Sinar.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is a safeguard from immorality.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	A woman should wash her hair before immersing.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> The Torah requires this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'He will wash Es Besaro (his flesh) in water' -
               nothing should separate between his flesh and the
               water;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Es Besaro' includes what is secondary to his
               flesh.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is this?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> It is hair.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Mid'Oraisa, it suffices to look if any hairs
          are tied, or if anything is in the hair;
<br>
<br>

sjt:
<font><b>1) AN ADDITIONAL ENACTMENT OF EZRA</b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa which relates the ten enactments that Ezra made. The Gemara in Megilah (21b), however, mentions another enactment that is not mentioned here. The Beraisa there quotes Rebbi Shimon ben Elazar who states that Ezra enacted that the Jewish people read the Kelalos (curses) in Toras Kohanim (Parshas Bechukosai) before Shavuos, and the Kelalos in Mishnah Torah (Parshas Ki Savo) before Rosh Hashanah. Why does the Beraisa here not mention this enactment?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHASH</b> here answers that it is only the view of Rebbi Shimon ben Elazar that Ezra enacted that the Kelalos be read before Shavuos and Rosh Hashanah. The Beraisa here expresses the view of the Rabanan who disagree and maintain that Ezra did not make that enactment.
</p><p>
(b) The <b>TOSFOS RID</b> (Mahadura Kama) in Megilah answers that all of the enactments related to Keri'as ha'Torah are included in Ezra's enactment that the Torah be read in public on Mondays and Thursdays.
</p><p>
This answer is difficult to understand, because the Beraisa here also mentions a separate enactment to read the Torah on Shabbos at Minchah. According to the Tosfos Rid, this enactment should not have been mentioned independently, but it should have been included in the enactment to read the Torah on Mondays and Thursdays.
</p><p>
(c) A deeper understanding of the enactment mentioned in Megilah may provide an answer to this question. When the Beraisa there teaches that Ezra enacted that the Kelalos be read before Shavuos and Rosh Hashanah, it does not mean that Ezra enacted that the people must go out of their way to read the curses when Rosh Hashanah approaches. Rather, he enacted that in the course of the weekly readings, the Jewish people should not read the curses shortly <i>after</i> the start of a new year, because starting a year with curses is a bad sign. Ezra proposed that when the reading of the curses in the weekly reading coincides with Rosh Hashanah, the people should be careful to advance the reading of the curses to the Shabbos <i>before</i> the new year.
</p><p>
That is, Ezra's enactment was a <i>preventative</i> enactment (avoid reading the curses at the start of the new year) rather than an <i>active</i> one (specifically read the curses at the end of the year).
</p><p>
All of the other enactments which Ezra made, as listed in the Gemara here, were <i>active</i> ones, decrees to <i>do</i> something and not to <i>avoid</i> doing something. For that reason, the Gemara here does not mention the enactment of reading the Kelalos before Shavuos and Rosh Hashanah!
</p><p>
(See Insights to Megilah 31:4 for other important questions that this approach answers.)
</p><p>


<font><b>2) EZRA'S ENACTMENT THAT A WOMAN COMB HER HAIR PRIOR TO IMMERSION</b></font><b>
<br>QUESTION:</b> One of the ten enactments which Ezra made was that a woman must comb her hair prior to her immersion in a Mikvah. Why did he enact this requirement only for a woman, and not for a man who immerses (to become Tahor to handle Taharos, or to eat Kodshim, or to eat Terumah if he is a Kohen)?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SEFER HA'TERUMAH</b> (Rabeinu Baruch) answers (in Hilchos Nidah) that since a man frequently immerses in a Mikvah because he eats Terumah and Kodshim often, it is unlikely that there will be any intervening substance on his body. Therefore, he is not required to comb his hair or body. He proves this from the Yerushalmi in Pesachim (4:7) which says that the daughter of a Kohen may immerse without combing her hair, because she frequently immerses herself in order to eat Terumah and Kodshim. The same logic applies to a man.
</p><p>
The <b>CHESHEK SHLOMO</b> questions this proof from the Yerushalmi. The Yerushalmi refers specifically to <i>Kohanim</i> who frequently immerse to eat Kodshim <i>and</i> Terumah. Non-Kohanim, who immerse only in order to eat Kodshim, are not accustomed to immersing so often, and therefore the logic of the Yerushalmi should not apply to men who are not Kohanim. Furthermore, if the reason why men do not have to comb before immersing is that they eat Kodshim and thus immerse frequently enough that there is no intervening substance on their bodies, then women also should not have to comb for the same reason, since they, too, eat Kodshim.
</p><p>
(b) The <b>CHESHEK SHLOMO</b> explains that the purpose of the enactment to comb the hair is not the concern that most of the hairs are dirty and tangled, since that is very uncommon. Rather, the requirement to comb is because of the few hairs that are dirty and tangled. An ordinary man is not conscientious about a few hairs being dirty or tangled (and thus it is a 'Mi'ut v'Eino Makpid'). In contrast, an ordinary woman <i>is</i> conscientious about even just a few hairs (and thus it is a 'Mi'ut v'Makpid'). Therefore, a woman must comb her hair before she immerses because of the few hairs that might be dirty and tangled. (The Cheshek Shlomo cites proof for his logic from the Mishnah in Mikva'os 9:3.)
</p><p>
(c) The Cheshek Shlomo suggests further that perhaps at the time that Ezra made this enactment, the second Beis ha'Mikdash had not yet been built and the Jews had not yet returned from Bavel. Hence, they were neither involved in handling Taharos nor were they eating Kodshim, and thus the men were not immersing for those purposes. Since only the women were immersing at that time (in order to become permitted to be with their husbands), Ezra's enactment was directed only towards the women.
</p><p>
(d) The <b><b><b>OR</b></b> SAME'ACH</b> (Hilchos Isurei Bi'ah 4:8) gives a beautiful explanation which answers this question and many others. He points out that none of Ezra's enactments which the Gemara here mentions were made for the usual purpose for which enactments are made -- as safeguards to a law in the Torah. Rather, all of Ezra's enactments were made for the benefit of the continuity of the nation and for the welfare of family life and marital contentment. Indeed, the prophet Malachi (who, according to Rav Nachman in Megilah, was Ezra) rebuked the people about their deficiency in these areas.
</p><p>
For this purpose, Ezra enacted that the cities allow spice-peddlers to roam freely so that the wives will be able to buy perfumes to make themselves more attractive to their husbands. He enacted that the women comb themselves before immersing so that there be no unpleasant substance on their bodies when they are with their husbands (as was the case with Pilegesh b'Giv'ah as described in Gitin 6b, and with Tamar as described in Sanhedrin 21a).
</p><p>
All of his other enactments were also for the sake of increasing marital harmony. He enacted that the clothes be laundered on Thursdays, and that people eat garlic on Erev Shabbos. He enacted Tevilah for a Ba'al Keri so that men would refrain from overindulging in marital relations, so that their wives would be more beloved to them.
</p><p>
When the Gemara asks that the requirement to comb before immersion is not an enactment of Ezra but is a Halachah d'Oraisa, it means that although it was an enactment it was not for the sake of marital harmony but for the sake of safeguarding a Halachah d'Oraisa. The Gemara answers that although <i>examining</i> for intervening substances indeed is part of the Halachah d'Oraisa, <i>combing</i> is for the sake of beautifying herself so that her husband's fondness for her grows.
</p><p>
Accordingly, it is clear why the Beraisa does not say that Ezra enacted that men should comb before immersing. Such an enactment would be to ensure that the Halachah d'Oraisa of Tevilah is done properly, and not to increase the degree of marital harmony among the nation, the purpose of Ezra's decrees.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>OVERTURNING RULINGS OF A PREVIOUS BEIS DIN THAT DID NOT SPREAD</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Ezra decreed that a Ba'al Keri (one who had a
               seminal emission) may not say Divrei Torah (or pray)
               until he immerses.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Berachos 22a (Rav Nachman bar Yitzchak):</font></b> Nowadays,
               people follow the lenient opinion of R. Yehudah ben
               Beseira:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beraisa - R. Yehudah ben Beseira:</font></b> (A Ba'al Keri
                    may learn Torah because) Divrei Torah are not
                    Mekabel Tum'ah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Some say that Ze'iri came and taught that Chachamim
               abolished the immersion.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Avodah Zarah 36a (Rav):</font></b> Daniel decreed against oil
               of Nochrim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Contradiction (Beili citing Rav):</font></b> The prohibitions
               of Nochri bread, oil, wine and relations with)
               Nochri girls are among the 18 decrees (made on the
               day of heated fighting between Beis Shamai and Beis
               Hillel).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Daniel decreed in the city; Beis Hillel and
               Beis Shamai decreed even in the field.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question #1 (Shmuel):</font></b> R. Simla'i taught that R.
               Yehudah Nesi'ah and his Beis Din voted and permitted
               it, because Nosen Ta'am li'Fgam is permitted
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> A Beis Din cannot nullify the
                    enactment of another Beis Din, unless it is
                    bigger in Chachmah and Minyan. (R. Yehudah
                    Nesi'ah was not bigger in Chachmah and Minyan
                    than Daniel, Beis Hillel and Beis Shamai)!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question #2:</font></b> Rabah bar bar Chanah taught that no
               Beis Din, even Eliyahu ha'Navi's (in the future),
               can nullify one of the 18 decrees!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer (Rav Mesharshiya):</font></b> The restrictions apply to
               decrees that spread through most of Yisrael. The
               decree against oil did not spread (therefore even a
               smaller Beis Din can Mevatel, and even though it was
               among the 18 decrees).
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (R. Shimon ben Gamliel and R. Eliezer):</font></b> We make a
               decree only if the majority of Yisrael can fulfill
               it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rav Ada bar Ahavah:</font></b> 'Ba'Me'erah Atem Ne'arim...
                    ha'Goy Kulo' - a decree is proper only if the
                    entire nation can fulfill it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> 37a:</font></b> R. Yehudah Nesi'ah: Last night, we
                    permitted oil of Nochrim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>R. Simla'i:</font></b> You will even permit their bread!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> R. Yehudah Nesi'ah:</font></b> No, for then we would be
                    called a permissive Beis Din.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Berachos 13b and 3:21):</font></b> Some say that
               they abolished the Tevilah both for prayer and for
               Divrei Torah. Some say that this was only for Torah,
               but one must immerse for prayer, or wash with nine
               Kavim. Rav Hai Gaon says that since the Gemara omits
               this (regarding prayer), we follow the custom of
               Yisrael: a Ba'al Keri does not pray until washing,
               even if he lacks water.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (Avodah Zarah 14b and 2:27):</font></b> R. Yehudah
               ha'Nasi and his Beis Din permitted oil of Nochrim.
               Even though it was among the 18 decrees, since the
               decree did not spread, they were able to Mevatel it.
               They relied on R. Shimon ben Gamliel and R. Eliezer,
               who say that we decree only if the majority of
               Yisrael can fulfill it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (Avodah Zarah 14b DH Rebbi):</font></b> No Beis Din,
                    even Eliyahu ha'Navi's (in the future), can
                    nullify one of the 18 decrees! R. Yehudah
                    Nesi'ah and his Beis Din were able to permit
                    oil of Nochrim, even though it was among the
                    18, because the decree did not spread. They
                    relied on R. Shimon ben Gamliel. I.e. even
                    though the decree did not spread, we still
                    require a greater Beis Din. However, R. Shimon
                    ben Gamliel taught that we decree only if the
                    majority of Yisrael can fulfill it. There are
                    three laws. If a decree spread throughout
                    Yisrael, no Beis Din, even Eliyahu's (in the
                    future), can nullify it. This is the reason why
                    we cannot permit the (other 17 of the) 18
                    decrees. If the decree did not spread, but the
                    majority of Yisrael could fulfill it, a greater
                    Beis Din is required. If the decree did not
                    spread because the majority of Yisrael cannot
                    fulfill it, even a smaller Beis Din can Mevatel
                    it. A Heter is required. R. Yehudah Nesi'ah
                    would have permitted bread of Nochrim, if not
                    that he would be called a permissive Beis Din.
                    We must say that the Tzibur could not fulfill
                    the decree, yet a Heter was required. This is
                    why the Ramban said that even nowadays, if
                    Gedolei Yisrael would agree, we could permit
                    Nochri bread. Even though we are smaller, also
                    R. Yehudah Nesi'ah's Beis Din was smaller than
                    the Talmidim of Hillel and Shamai.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mamrim 2:2):</font></b> If Beis Din made a
               decree or enactment and it spread throughout
               Yisrael, a later Beis Din cannot nullify it unless
               they are bigger in Chachmah and Minyan.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Kri'as Shma 4:8):</font></b> Ezra and his Beis
               Din enacted that a Ba'al Keri not read Divrei Torah
               until he immerses, unlike other Temei'im. The
               enactment did not spread throughout Yisrael, and
               most of the Tzibur could not fulfill it. Therefore,
               it was Batel. It is the custom of all Yisrael to
               read Torah and Shema when they are Ba'al Keri, for
               Divrei Torah are not Mekabel Tum'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Rambam explains that a Beis
                    Din did not Mevatel Ezra's enactment. If so, he
                    would have said who abolished it. Also, why do
                    we say that people conduct like R. Yehudah ben
                    Beseirah? We should say that the decree was
                    abolished! Also, we find late Amora'im who
                    immersed for Keri, and distinguish when a sick
                    person must immerse. Rather, 'they abolished
                    it' means that they did not force people to
                    fulfill it, and it became Batel by itself. If
                    it was only because it did not spread, granted,
                    another Beis Din could abolish it, but Bitul
                    would be needed. Rather, since the Tzibur was
                    unable to fulfill it, Chachamim did not force
                    people. This is why the Rambam writes 'it was
                    Batel', not 'they were Mevatel it.' This is why
                    later Amora'im fulfilled it. They could not
                    force people, but since they themselves were
                    able to, they fulfilled it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Minchas Yitzchak (3:15:12):</font></b> A smaller Beis Din
                    can Mevatel any enactment that did not spread.
                    Why did the Rambam need to say that it did not
                    spread because Beis Din did not enforce it? The
                    Rambam derived from the Gemara that there was
                    no explicit Bitul, because it did not spread.
                    Not spreading allows Bitul; since the Tzibur
                    could not fulfill it, it was automatically
                    Batel.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Tosfos (Avodah Zarah 36b DH Iy):</font></b> Even an
                    enactment that did not spread is in force until
                    a Beis Din is Mevatel it. R. Yehudah needed to
                    permit oil.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Tefilah 4:5,6):</font></b> This enactment was
               Batel, because it did not spread throughout Yisrael,
               and most of the Tzibur could not fulfill it. The
               custom in Sefard and Bavel is that a Ba'al Keri does
               not pray until he bathes his entire body in water,
               due to 'prepared to greet Elokecha.' However, there
               is no custom to bathe for one who was sick or saw
               Keri due to Ones.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The enactment was Batel only
                    regarding Divrei Torah. Regarding prayer, even
                    though we do not require Tevilah, one must
                    bathe in nine Kavim of water, like the Rif
                    says.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> R. Mano'ach:</font></b> The enactment was Batel by itself
                    because most of the Tzibur could not fulfill
                    it. They did not vote to annul it, for this
                    would require a Beis Din greater in number and
                    Chachmah. In our lands the custom is only that
                    everyone immerses on Erev Yom Kipur. It is a
                    mere custom, therefore one does not bless on
                    it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Hagahos Maimoniyos (5):</font></b> The custom of Yisrael
                    is not to pray until bathing, even if they
                    don't have water. R. Yehudah ben Beseirah was
                    lenient only for Divrei Torah. One who is
                    stringent will live a long life.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (Introduction to Mishnayos Zera'im DH
               ha'Chelek ha'Chamishi):</font></b> Some enactments do not add
               or detract from Mitzvos. Rather, they are helpful
               for Torah. If one transgresses them, 'Poretz Geder
               Yishchenu Nachash'. One example is Ezra's
               enactments.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 88:1):</font></b> Any Tamei person may learn
               Torah, read Shma or pray, except for a Ba'al Keri.
               Ezra forbade this so Chachamim would not be too
               frequent with their wives. Later, the decree was
               abolished; he is permitted without Tevilah or having
               nine Kavim poured over him. This is the practice.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (3):</font></b> The decree that a Ba'al
                    Keri may not learn Torah or pray was annulled
                    because most of Yisrael could not fulfill it.
                    It entailed Bitul Torah and Bitul Peru u'Rvu.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Eshel Avraham (1):</font></b> The Kesef Mishneh explains
                    that a Beis Din did not Mevatel Ezra's
                    enactment. Therefore, one who fulfills it will
                    be blessed.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Be'er Heitev (1):</font></b> The Rambam said that he
                    himself was never Mevatel Takanas Ezra (brought
                    in R. Yonah 13b Sof DH Ki).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>OVERTURNING A RULING THAT SPREAD THROUGHOUT YISRAEL </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Ezra enacted that she must wash it.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	Peddlers should go around in cities.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is so that perfume will be available to
               women, lest they become repulsive to their husbands.
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	One who had an emission of seed must immerse.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> This is mid'Oraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'A man who will have an emission of seed... will
               wash his flesh in water.'
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> The Torah obligates him to immerse before
          eating Terumah or Kodshim. Ezra obligated him to immerse
          before Talmud Torah.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE UNIQUENESS OF YERUSHALAYIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Ten things are special about Yerushalayim:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one sells a house in Yerushalayim, he may
               redeem it whenever he wants (if he does not, it
               returns to him in Yovel);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Yerushalayim does not behead a calf (even if it
               is the closest city to a murdered corpse);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It cannot become an Ir ha'Nidachas (normally, if
               the majority of its residents of a city were
               convicted for serving idolatry, we burn the entire
               city );
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Houses in Yerushalayim do not become Tamei
               through Tzara'as;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> We may not have beams or balconies sticking out
               of houses;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> We do not make waste-heaps in the city;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> We do not have furnaces (to make pottery) in the
               city;
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> We do not have gardens or orchards in the city,
               except for the rose gardens (which were needed for
               the incense) from the days of the first prophets;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> We do not raise chickens in the city;
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b>  We do not leave a corpse overnight in the city.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one sells a house in Yerushalayim, he may
          redeem it whenever he wants.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Normally, one may not redeem a house in a walled
               city after one year, like it says 'the house in the
               walled city will remain the buyer's forever, for his
               generations.' However, the Tana of this Beraisa
               holds that Yerushalayim was not divided among the
               tribes. Any city that was not divided among the
               tribes returns to its original owner in Yovel,
               whether or not it has a wall. (It is likewise
               excluded from any law regarding which the Torah
               discusses 'your land' or 'your inheritance.')
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Yerushalayim does not behead a calf.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says 'if you will find a corpse in the land
               that Hash-m gives it you for an inheritance.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> It cannot become an Ir ha'Nidachas.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says '(If people will serve idolatry in one
               of) your cities'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Houses in Yerushalayim do not become
               Tamei through Tzara'as.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It says '...Tzara'as in a house of the land of
               your inheritance'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We may not have beams or balconies sticking
          out of houses.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Such protrusions can impart Tum'ah (if one is
               under them at the same time as Tum'as Mes is under
               them); also, people coming for the festival may get
               hurt on them.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We do not make waste-heaps in the city.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Sheratzim (rodents) breed in waste-heaps
               (Sheratzim spread Tum'ah).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We do not have furnaces (to make pottery) in
          the city.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They make smoke, which would blacken the city
               wall. That would be a disgrace.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We do not have gardens or orchards in the
          city.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because people cast out weeds. Also, they
               fertilize them with rotting manure.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We do not raise chickens in the city.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They can cause Tum'ah to Kodshim.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We do not leave a corpse overnight in the
          city.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We have a tradition for this.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>RAISING PIGS AND CHOCHMAS YEVANIS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	We may not raise pigs anywhere.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> When the Chashmonai kings were fighting each
          other, Hurkenus was inside Yerushalayim, and Aristobulus
          was besieging it from outside. Every day, those inside
          lowered a basket of coins over the wall, and those
          outside gave them lambs for the Tamid (daily Korban),
          which were lifted over the wall.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An elder told the besiegers, in the language of
               Chochmas Yevanis, that they will not conquer it as
               long as the Korbanos are brought. The next day, the
               besiegers gave a pig instead of lambs. When the pig
               was halfway up, it stuck its claws into the wall.
               All of Eretz Yisrael shook 400 Parsah  by 400 Parsah 
               (about 1600 kilometers).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chachamim imposed a curse on anyone who will
                    raise pigs or teach his son Chochmas Yevanis.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding that period we learned that the Omer
               offering was brought from barley from the Gagos
               Tzrifin (a place far from Yerushalayim, because the
               grain nearby was destroyed) and the two loaves
               brought on Shavuos were brought from wheat of Ein
               Socher.
<br>

<p>

sjt:
</p><p>
<font><b>3) THE CONSEQUENCE OF STUDYING 'CHOCHMAS YEVANIS'</b></font><b>
<br>QUESTIONS:</b> The Gemara records the incident that prompted the decree that pigs may not be raised in Eretz Yisrael, and the decree that a father may not teach his son Chochmas Yevanis. During the civil war between Aristobulus and Hyrkanus (near the end of the period of the second Beis ha'Mikdash; see Background to the Daf), when the men of Hyrkanus laid siege to Yerushalayim, the Korbanos continued to be offered in the Beis ha'Mikdash. Every day, the people inside the city, behind the city's wall, would lower down some money, and the people outside the city would send up the animals for the Korban Tamid. An elderly man -- who knew Chochmas Yevanis -- divulged to the besieging army that as long as Korbanos were being offered, Yerushalayim would not fall. The next day, instead of sending up proper animals for the Korban, the besieging army sent up a pig. The entire land of Eretz Yisrael trembled. The Gemara says that at that time, the Chachamim decreed, 'Cursed is the man (Arur ha'Ish) who raises pigs, and cursed is the man (Arur ha'Adam) who teaches his son Chochmas Yevanis.'
</p><p>
(a) It is clear that the besieging army sent up a pig as a result of someone who had taught his son Chochmas Yevanis. Why did the Chachamim reverse the order in their decree? They should have said first, 'Cursed is the man who teaches his son Chochmas Yevanis,' and then, 'Cursed is the man who raises pigs'!
</p><p>
(b) Why did the Chachamim proclaim, 'Cursed is the <i>Ish</i>' with regard to one who raises pigs, but they proclaimed, 'Cursed is the <i>Adam</i>' with regard to one who teaches his son Chochmas Yevanis?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>BEN YEHOYADA</b> answers that at the moment the pig was lifted up and the land of Eretz Yisrael trembled, it was not known that the cause was that Chochmas Yevanis had been taught. The Chachamim immediately proclaimed a curse on whoever raises pigs. Later, they discovered that it happened as a result of someone who had learned Chochmas Yevanis, and thus they cursed the one who teaches his son Chochmas Yevanis. (This is why the Gemara emphasizes, '*At that moment*, they said...' ('b'Osah Sha'ah') -- meaning that they made their proclamation immediately when the calamity occurred.)
</p><p>
(b) The Ben Yehoyada answers that the difference between 'Ish' and 'Adam' is that 'Adam' refers to a more refined, important, and wise person, and hence it was more appropriate for the Chachamim to refer to an 'Adam' when they prohibited the teaching of Chochmas Yevanis, since only a wise person would be involved in such a pursuit. 'Ish' refers to a less-refined person, and thus it was appropriate for the Chachamim to refer to an 'Ish' when they prohibited the raising of pigs. (Others, however, describe the difference between 'Adam' and 'Ish' differently; see Maharsha in Chidushei Agados, end of Bava Basra 164b.)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS IT PERMITTED TO SPEAK CHOCHMAS YEVANIS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Chochmas Yevanis is permitted!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Rebbi):</font></b> In Eretz Yisrael, one may not
               speak Sursi, rather Hebrew or Yevanis.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Asi):</font></b> In Bavel, one may not speak Arami,
               rather Hebrew or Persian.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The language Yevanis is permitted. Chochmas
          Yevanis is different; it is forbidden.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Chochmas Yevanis is permitted!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah citing R. Shimon ben Gamliel):</font></b> 'My
               eye wails, from all the daughters of my city' - of
               1000 children in my father's house, 500 learned
               Torah, and 500 learned Chochmas Yevanis, and only me
               and my cousin survived.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Gamliel's house was close to the king, so
          they were permitted. Otherwise, it is forbidden.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One who cuts his hair Kumi (also
               called Beloris, i.e. he cuts the front and lets it
               grow in back) transgresses the Isur of going in the
               ways of the Emori;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Avtulmus bar Reuven was permitted to do this,
               because he was close to the king.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Since R. Gamliel's house was close to the king,
               they were permitted to speak Chochmas Yevanis.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>RAISING DOGS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One may not raise a dog unless it is tied on
          a chain.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> One may not raise a dog unless it is tied on
          a chain. One may raise a dog in a city near the border.
          He ties it during the day, and unties it at night.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa - R. Eliezer ha'Gadol):</font></b> Raising dogs is like
          raising pigs.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why must he make this comparison? (He could
          simply say that it is forbidden!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> He teaches that he is cursed.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Yosef bar Minyomi):</font></b> Bavel has the law of a city
          near the border.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He refers to Neharda'a.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Dostai of Biri):</font></b> 'Shuvah Hash-m Rivevos (10,000's)
          Alfei (thousands) Yisrael' teaches that the Divine
          Presence does not rest on less than 22,000 Yisraelim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there were one less than this amount, and a
               woman was pregnant, about to complete the number,
               and she miscarried due to a dog's bark, this would
               cause the Divine Presence to depart from Yisrael!
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	A case occurred in which a pregnant woman (Leah) went
          to bake in another's house. A dog in the house barked at
          her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> The owner:</font></b> Don't worry. Its teeth were removed!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Leah:</font></b> The fetus already died.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>BIRD TRAPS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We do not spread traps for doves... within
          four Mil of a settled area (lest they eat from others).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> They do not go so far!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Dovecotes must be at least 50 Amos
               from the city.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> They eat their fill within 50 Amos, but
          they can fly up to four Mil (from their nest).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> They can go further than four Mil!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One may not set dove traps even 100
               Mil from a settled area.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yosef):</font></b> That is when the area in between
          is settled with vineyards.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rabah):</font></b> That is when the area in between is
          settled with dovecotes.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If so, it should be forbidden to set traps
          due to the dovecotes!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answers:</font></b> The intermediate dovecotes are owned by
          Nochrim, or are Hefker, or belong to the one setting the
          traps.
<br>
<br>

sjt:
<font><b>1) HALACHAH: A PET DOG</b></font><b>
<br>QUESTION:</b> The Gemara relates the severity of the sin of raising dogs in Eretz Yisrael. The Gemara derives from verses that when there are 22,000 Jews in one place, the Shechinah dwells among them. It could happen that there will be 21,999 Jews, and a woman who is pregnant (with the 22,000th Jew) will be frightened by a barking dog and miscarry. Hence, raising dogs in Eretz Yisrael can cause the Shechinah to depart from the Jewish people.
</p><p>
If a barking dog can cause a woman to miscarry and cause the Shechinah not to dwell among the Jewish people, why does the Mishnah (79b) and the Gemara here permit raising a dog when it is tied to a chain? Even when tied to a chain, a dog might bark at a pregnant woman and cause her to miscarry!
</p><p>
<b>ANSWERS:</b>
<br>(a) Perhaps since the pregnant woman knows that the Chachamim permitted one to raise a dog when he keeps it tied to a chain, she will not be afraid when she hears it barking because she will know that it is tied to a chain.
</p><p>
(b) Another explanation is that the Chachamim's only concern was that a pregnant woman might <i>see</i> the dog as well as hear its bark. When she hears its bark but does not see the dog, there is no fear that she will miscarry. Hence, when the dog is restrained by a chain, the woman will not be afraid even when she sees it because she clearly sees that it cannot hurt her.
</p><p>
A practical difference between these two approaches exists in a place where not all of the people are scrupulous about observing the enactments of the Chachamim, or in a place in which Nochrim live. In such a place, when a pregnant woman hears a dog bark, she will be scared even though she cannot see the dog because she knows that there is a possibility that it is not restrained. According to the first explanation, in such a place one may not keep a dog even on a chain, since the barking alone will cause the pregnant woman to miscarry. According to the second explanation, one is permitted to keep a dog when it is tied to a chain since the only fear is that the woman will <i>see</i> the dog as well as hear it, but when she sees the dog on the chain she will not miscarry.
</p><p>

<b>HALACHAH:</b> The <b>YOSEF DA'AS</b> writes that he heard from <b>RAV SHLOMO ZALMAN AUERBACH</b> zt'l that the decree of the Chachamim applies only when the dog is not kept on a chain. When the dog is tied to a chain, there is no fear that a woman will miscarry, for the sound of barking alone does not cause her to miscarry. The Yosef Da'as cites <b>RAV CHAIM KANIEVSKY</b> shlit'a who says that one does not have to be concerned that although the dog is on a chain, the woman might not see the chain and still become frightened.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>PAYMENT FOR NEZEK</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven damaged Shimon, he is liable
               for five categories of payment: Nezek, pain, Refu'ah
               (medical expenses), Sheves (compensation for loss of
               wages until he can work again), and embarrassment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> To evaluate Nezek, if he blinded his eye, cut off
               his hand or broke his leg, we take the difference of
               how much one would have paid in the market to buy
               Shimon for a slave before and after the damage.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 84a (Beraisa - R. Eliezer):</font></b> 'An eye in place of an
               eye' is literal.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rabah):</font></b> He teaches only that we do not evaluate the
               victim like a slave.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection (Abaye):</font></b> Will we evaluate him like a free
               man? There is no value associated with a free man!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> A child's hand was severed (by a donkey). Rav Papa
               bar Shmuel said that they should evaluate the Nezek.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> We must evaluate what he would be sold for
               like a slave!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rav Papa:</font></b> Go evaluate what he would be sold for like
               a slave.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> The boy's father:</font></b> No, that is a disgrace for him!
               Rather, when he grows older, I will appease him with
               my money.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> An ox chewed the hand of a child. Rava told them to
               evaluate what he would be sold for to be a slave.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question (Rabanan):</font></b> You taught that in Bavel we do
               not collect anything that requires an evaluation of
               one's slave value!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rambam (Hilchos Chovel 1:1,2) bring our
               Mishnah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef and Rashi (83b DH v'Kamah):</font></b> The
                    wound caused a loss to Shimon, for if he wanted
                    he could have sold himself to be an Eved Ivri.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> .Rosh (8:1):</font></b> We evaluate the difference of how much
               one would have paid in the market to buy Shimon for
               an Eved Kena'ani, who is sold permanently. There is
               no  evaluation of an Eved Ivri to be sold
               permanently. He can sell himself for six years, and
               when he goes free he can sell himself again, and so
               on, for all his life (so we cannot fix an amount).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chidushei Anshei Shem (on Nimukei Yosef):</font></b> To
                    answer the Rosh's question, Rashi must say that
                    we gauge how long Shimon would have lived, and
                    calculate how much he could have received for
                    selling himself for six years at a time until
                    he dies.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Bach CM 420:17):</font></b> 'To evaluate him
                    like a slave' connotes like an Eved Kena'ani.
                    Abaye said that we cannot evaluate like a free
                    man, for there is no value associated with a
                    free man! Rashi himself (84b DH Pegam) says
                    that we evaluate Pegam (of a Na'arah who was
                    raped or enticed) by considering how much one
                    would have paid for such a girl for a Shifchah
                    (Kena'anis) before and after!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Bach):</font></b> It seems that Rashi himself
                    admits that we evaluate like an Eved Kena'ani.
                    However, since this is disgraceful, like the
                    Gemara says, the victim may opt to be evaluated
                    like an Eved Ivri, who serves for only six
                    years. This is less than the evaluation like an
                    Eved Kena'ani; this benefits the damager.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (420:20):</font></b> In Bava Basra (13a DH Hachi),
                    Rashi says that there is no  evaluation of an
                    Eved Ivri (to be sold permanently), for he can
                    sell himself only for six years.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Note:</font></b> Perhaps Rashi in Bava Kama merely
                    explains that Nezek is paid because the victim
                    lost money (unlike pain and embarrassment,
                    which we do not collect in Bavel because there
                    was no monetary loss). He agrees that the
                    evaluation is like an Eved Kena'ani, like he
                    said in Bava Basra!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (4):</font></b> The evaluation of Nezek is according to
               his craft. If he threads pearls and his leg was cut
               off, we evaluate the decrease in value of a slave
               who can thread pearls if his leg was cut off. This
               is a small amount. If his arm was cut off, it is a
               large amount. It seems that we estimate according to
               one's trade only to increase the payment, e.g. he
               cut off the arm of a slave who can thread pearls. If
               he cut off the leg of a slave who can thread pearls,
               and it is a smaller lose than that of a slave who
               serves his master and does his commands, so we
               evaluate like for a slave who <i>cannot</i> thread
               pearls. Presumably, he should not lose due to his
               craft and attribute. If he wants, he need not use
               this trade, and he is like anyone else who can be
               sold for all kinds of usage.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Prishah (CM 420:17 DH v'Chosav):</font></b> The Rosh said
                    that the (payment for) loss of a leg for a
                    slave who can thread pearls is small, i.e.
                    compared to the loss of an arm. It is not less
                    than that for a Stam slave. Sometimes it can be
                    greater, e.g. if the master wants that the
                    slave can run errands.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> The Prishah's last words connote that
                    there is a particular master. Perhaps he
                    discusses one who cut off a slave's leg, and
                    explains that the payment is greater if his
                    master used him for errands.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 420:15):</font></b> To evaluate Nezek, if he
               removed a limb or made a wound that will not heal,
               we take the difference of how much one would have
               paid in the market to buy him for a slave before and
               after the damage.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (16):</font></b> We evaluate even a distinguished
                    person as if he were a slave.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If he was a craftsman, e.g. he threads pearls
               and his arm was cut off, we evaluate Nezek according
               to his craft. If his leg was cut off, which does not
               harm his craft so much, we evaluate Nezek as if he
               had no trade.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Yam Shel Shlomo (8:11):</font></b> The Gemara says that
                    one who deafened someone pays his full value,
                    for a Cheresh (cannot hear what he is
                    commanded, so he) is worthless. If he had a
                    craft, Nezek applies to him. Erchin 2a says
                    that a vow to give the (slave) value of a
                    Cheresh takes effect, i.e. if he had a trade.
                    No other Meforshim distinguish like the Rosh.
                    Some say that Sheves depends on his trade, but
                    no one says so about Nezek. We ignore a
                    person's importance, e.g. the king's son. There
                    is no limit to the value of a great Chacham,
                    but even so, if one deafened him, the Mishnah
                    is lenient and obligates only the value of a
                    slave sold in the market. Surely we consider a
                    Stam slave without a craft. We consider only
                    attributes of his body, e.g. if he is tall,
                    strong, or beautiful, which are visible. We do
                    not evaluate what depends on his craft or
                    knowledge.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 3):</font></b> Surely the damage is
                    greater if the slave has a craft!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (22):</font></b> Surely, we distinguish only to pay
                    more. If it was even to be lenient, why did the
                    Mishnah say that we evaluate like a Stam slave,
                    if this applies only to someone idle (without a
                    craft? Rather, it applies even to one with a
                    craft, if this causes that the injury did not
                    decrease his value so much.)
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>MAY ONE RAISE DOGS? </b></b>(</font><font color='darkblue'>


lvr: 41
dfh: b
trd:
<p>
<b>PEREK HA'CHOVEL</b>
<b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE FIVE PAYMENTS FOR DAMAGES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven damaged Shimon, he is liable for
          five categories of payment: Nezek, pain, Refu'ah (medical
          expenses), Sheves (compensation for loss of wages until
          he can work again), and embarrassment.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Nezek:</font></b> If he blinded his eye, cut off his hand or
               broke his leg, we evaluate the loss of Shimon's
               value (if he would be sold to be a slave).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Pain:</font></b> If he burned him with a spit or nail, even
               on his fingernail (so no wound will result), we
               evaluate how much a person of Shimon's nature would
               ask to receive on condition that he will be pained
               this way.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Refu'ah:</font></b> He bears all costs of healing him;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If sores developed, Reuven is liable only if they
                    are due to the blow.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Sheves:</font></b> We consider what Shimon would earn
               guarding gourds, for Nezek already compensates for
               not being able to hold a high-paying job that
               requires use of his arm or leg.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Embarrassment:</font></b> We evaluate this according to the
               one who embarrassed and the one who was embarrassed.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>HOW WE KNOW THAT MONEY IS TO BE PAID</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why does Reuven pay money? The Torah
          says 'an eye in place of an eye.' He should lose his eye!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Beraisa) Suggestion:</font></b> If Reuven blinded Shimon's
          eye, cut off his hand, or broke his leg, the same should
          be done to Reuven!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rejection:</font></b> It says 'one who strikes a man' and
               'one who strikes an animal.' Just like one who
               strikes an animal pays money, also one who strikes a
               man.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If you prefer, it says 'do not take ransom for
               the soul of a murderer, who is a Rasha and should
               die' - we do not take ransom for a murderer, but we
               take ransom for extremal limbs that do not grow
               back.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Which verse 'one who strikes a man'
               does the Beraisa cite?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> It cites 'one who strikes an animal
                    will pay, and one who strikes a man will die.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> That discusses killing!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it cites 'one who strikes the
               soul of an animal will pay for it, a soul for a
               soul; a man who will put a blemish in his fellow
               man, as he did, so will be done to him.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> This verse does not say 'strike' (as it
               says in the Beraisa)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> The Beraisa learns the concept of
               striking from animals to people.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Just like one who strikes an animal pays, also
                    one who strikes a man.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> It says 'one who strikes any soul of a
               man will die'!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> That means that he will pay.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps it literally means that he is
               killed!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'>  Rejection #1:</font></b> The Torah equates this to 'one who
               strikes an animal will pay for it' (the previous
               verse).
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'>  Rejection #2:</font></b> The next verse says 'like (a man)
               will put a blemish in a man, so will be given to
               him.' This refers to money.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why does it say 'if you prefer'? (Why would
          one object to the previous answer?)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The Tana asked as follows:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why learn (the law of a man who wounds
               a man) from damage to an animal? We should learn
               from a man who kills a man!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It is preferable to learn damages from
               damages, and not from murder.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> To the contrary, it is preferable to
               learn (striking a) man from man, and not from
               (striking an) animal!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  That is why the Tana wanted another answer.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If you prefer, it says 'do not take ransom
          for the soul of a murderer, who is evil and should die;
          he will die' - we do not take ransom for a murderer, but
          we take ransom for extremal limbs that do not grow back.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> We expound a different law from this verse,
          that we do not kill the murderer and make him pay!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn that from 'according to his evilness'
          - we give only one punishment for his evilness, not two.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> We need 'do not take ransom' to teach that he
          may not pay to exempt himself from death!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The Torah could have taught that by saying 'do
          not take ransom for one who is evil and should die'; 'the
          soul of a murderer' is extra, to teach that we do not
          take ransom for a murderer, but we take ransom for limbs.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Since we have this verse, why do we need the
          two verses equating one who strikes an animal and one who
          strikes a man?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Without that verse, one might have thought that
          the damager can choose to pay with money or his limb;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The verse teaches that he is like one who strikes
               an animal, he must pay money.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Beraisa - R. Dostai ben Yehudah):</font></b> 'An eye in place of
          an eye' refers to money (the value of the eye);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps it literally means that he
               loses his eye!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> If the damager's eye was bigger than
               the victim's, that would not fulfill 'an eye in
               place of an eye'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps in such a case, money is paid
               (but not when their eyes are equal)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> 'There will be one law for you' - one
               law for all of you.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Even if the damager's eye is bigger, (the
          primary damage was that) he deprived the victim of sight,
          so he will lose his sight!
<br>

<p>

sjt:
</p><p>
<font><b>2) A PERSON'S 'NET WORTH'</b></font><b>
<br>OPINIONS:</b> The Mishnah states that one who causes bodily damage to someone else must pay five forms of compensation. The first form, Nezek, is assessed by determining the value of the person who was damaged as though he were an Eved being sold on the market. According to the value of what type of Eved is one's value determined?
</p><p>
Similarly, when one's ox (which is a Mu'ad) kills a person, the owner must pay the value of the victim (Kofer). According to some opinions (43a), when one's ox kills a person unintentionally, the owner of the ox does not pay Kofer but he pays the value of the dead person, similar to the way he pays a person's decrease in value if he damages him. In both cases, Kofer and Nezek, the value of the person is determined by viewing him as though he were an Eved (because a person who is not being sold has no quantifiable value, as Abaye states later, end of 84a). To what type of Eved is the person compared in order to determine the value of Kofer?
</p><p>
The Gemara also gives this method for determining the value of a person with regard to another Halachah. If a person states, 'I will give my value to Hekdesh' ('Dami Alai'), his value is determined by viewing him as though he were an Eved being sold on the market. Here, too, to what type of Eved is the person compared?
</p><p>
(a) <b>RASHI</b> explains that the reason his value is assessed as though he were being sold as an Eved is that the one who damaged him caused that amount in decrease in his value since, if the damagee wanted, he could have sold himself as an Eved Ivri. Rashi implies that his value is determined based on that of an Eved <i>Ivri</i>. This is also the view of the <b>NIMUKEI YOSEF</b> and <b>BARTENURA</b> here. <b>TOSFOS</b> in Megilah (23b, DH Shamin) also implies that when a person says 'Dami Alai,' his value is assessed as though he were an Eved Ivri.
</p><p>
Rashi's explanation is logically sound. Since the payment is for the loss of value of the person who was damaged, it is logical that his value is assessed according to his worth on the Eved Ivri market. In contrast, the value of an Eved <i>Kena'ani</i> is unrelated to the victim's value, because a Jew cannot be sold as an Eved Kena'ani but only as an Eved Ivri. The value of an Eved Kena'ani is not the same as the value of an Eved Ivri; the owner of an Eved Kena'ani may force his slave to perform menial tasks, the owner does not have to show him respect (such as by giving him his only pillow), and the Eved serves his master forever.
</p><p>
The <b>ROSH</b> (8:1) questions this explanation. An Eved Ivri may be sold only for a maximum of six years (or until Yovel, whichever comes first). How can a person's decrease in value be determined based on how much his cost would be if sold as an Eved Ivri? That value would represent only the value of six years of his work, while the value of the damage is worth much more, since he could sell himself additional times after six years have passed.
</p><p>
(The Acharonim add that it is not logical to suggest that according to Rashi, every six years the Mazik must pay an additional payment for the damage and thus the Nizak's value is assessed again, at that time, according to his worth as an Eved Ivri. It is also not logical to suggest that the value of the person as an Eved Ivri is multiplied by the number of periods of six years that he is expected to live, since there is no way to know how long he will live. Moreover, the value owed for damages is always assessed based on a <i>single</i> estimate which takes into account the entire life of the Nizak. This is a leniency for the Mazik. If the Torah would mandate an evaluation of the value of the damage based on multiple sets of six years, it would be a greater sum than a single estimate for the total number of years.)
</p><p>
Perhaps Rashi means that Beis Din evaluates how much a buyer would pay for an Eved Ivri with the stipulation that part of the sum will serve as a Kinyan on the Eved for the first six years, and another part of the sum will renew the Kinyan at the moment the first Kinyan expires (if the Eved is still alive), and so on until the end of the life of the Eved. Such a sale is valid according to the <b>RASHBA</b> (cited by the <b>RAN</b> in Nedarim 30a), and it would reflect the value of the person as an Eved Ivri for the duration of his entire life. (See <b>CHIDUSHEI ANSHEI SHEM</b> on the Rif here.)
</p><p>
(b) The <b>ROSH</b> (8:1) disagrees with Rashi and writes that the person's value is assessed based on his value as an Eved <i>Kena'ani</i>. As mentioned above, the value of an Eved Kena'ani is more than that of an Eved Ivri. Why, though, should the value of a Jew be calculated according to his value if sold as an Eved Kena'ani?
</p><p>
Apparently, the Rosh maintains that the payment of Nezek is not intended to compensate the person for a material loss that he suffered directly as a result of the damage. Rather, it is compensation for the victim's devaluation, for becoming a less-valuable entity. Since a free person obviously cannot be given any quantifiable value, his devaluation can be assessed only according to how much an Eved would be devalued by such damage. (This approach is consistent with the view of a number of Acharonim who explain that money paid for permanent physical damage is a form of Kofer; see Gemara later on this Daf.)
</p><p>
<b>RABEINU CHANANEL</b> in Sanhedrin (15a) also writes that when a person says 'Dami Alai' he is evaluated like an Eved Kena'ani.
</p><p>
The Rishonim and Acharonim provide a number of proofs for the opinion that the Eved mentioned in the Mishnah is an Eved Kena'ani.
</p><p>
1. Tosfos in Megilah (23b) points out that when a person says 'Dami Alai,' his value is assessed in the presence of ten men, the same way the value of land is assessed, because an Eved is compared to Karka, and this person's value is assessed like that of an Eved. However, only an Eved Kena'ani is compared to Karka, and not an Eved Ivri. Rashi, on the other hand, may maintain that even an Eved Ivri is compared to Karka (see Insights to Kidushin 28:1).
</p><p>
2. The <b>HAFLA'AH SHEB'ERCHIN</b> (Erchin 19b) points out that the <b>RAMBAM</b> (Hilchos Avadim 1:5) writes, based on the Toras Kohanim, that an Eved Ivri is not sold in the marketplace. Hence, when the Mishnah here says that the person is evaluated like an Eved sold in the marketplace, it must refer to an Eved Kena'ani. However, the Mishnah in the Yerushalmi does not include the phrase 'in the marketplace' ('ba'Shuk'). This also seems to be the Girsa of some Rishonim in the Mishnah here (see <b>RABEINU GERSHOM</b> to Erchin 19b).
</p><p>
3. The <b>BACH</b> (CM 420:15) and the <b>NETZIV</b> (in Meromei Sadeh) point out that the Gemara seems to apply the rule of evaluating a person like a slave sold in the marketplace even today (see 84a and 84b), even though the Halachah of Eved Ivri does not apply nowadays. Moreover, how will a person pay Nezek to a <i>woman</i> according to Rashi, since a woman (over the age of twelve) cannot be sold as an Amah Ivriyah! Also, the Gemara (84a) says that the value of damage done to a male child is assessed in accordance with his price as an Eved, even though a male child (under the age of thirteen) cannot be sold as an Eved Ivri.
</p><p>
One might suggest that in all of these cases, the Gemara does not mean to say that their value is determined literally by the value of an Eved. Rather, the Gemara means that their value is determined by the value of <i>hired workers</i>, since all of these individuals can be hired as workers. However, the Gemara (84a) clearly says that evaluating a child as an Eved would be disgraceful to him, since it would look like he was being sold as a slave. Also, with regard to the payment of Pegam (which is a form of Nezek) given to a woman who was raped, Rashi (84b, DH u'Pegam) quotes the Gemara in Kesuvos that teaches that the woman's value is determined by the value of a Shifchah <i>Kena'anis</i> being sold in order for her to become a wife to her buyer's Eved Kena'ani.
</p><p>
The Acharonim offer a number of responses to these proofs against the view of Rashi.
</p><p>
1. The Bach suggests that the amount to be paid as Nezek certainly is based on the value of an Eved Kena'ani. However, there are times when a person is embarrassed to be placed on the podium in the marketplace to be evaluated as though he is being sold as a slave. Rashi teaches that in these cases, a man may insist that he should at least be paid his value as though he were being sold as an Eved Ivri.
</p><p>
2. The <b>YAM SHEL SHLOMO</b> writes that although the person who was damaged lost only the profit which he could have made as an Eved Ivri (as Rashi writes), nevertheless it is impossible to determine in a single sale what that value would be for the entire life of the person (as the Rosh asks), and what the value of a woman or child would be. Therefore, the best that Beis Din can do is determine the value of the person as though he were being sold as an Eved Kena'ani and base the payment of the Mazik on that value. Similarly, if a woman or child is damaged, her loss is that she no longer can hire herself out as a worker for a high price, or, in the case of a woman, her loss is that she will not receive as large of a dowry. However, the woman or child's value is determined based on the price of an Eved Kena'ani or Shifchah Kena'anis.
</p><p>
This also seems to be the opinion of <b>RABEINU YEHONASAN</b> cited by the Shitah Mekubetzes who explains that the Mishnah refers to an Eved Kena'ani, even though he explains like Rashi that the damage prevents the person from being sold for a high price as an Eved Ivri.
</p><p>
According to these explanations, Rashi agrees with the Rosh that the Eved mentioned in the Mishnah refers to an Eved Kena'ani.
</p><p>
(c) Rashi might not mean that the Nizak's value is assessed as though he were an Eved Ivri being sold to a Jew. Rather, his value is assessed as though he were an Eved Ivri being sold to a <i>Nochri</i> (see Kidushin 16a) since the Nizak -- had he been destitute -- could have sold himself to a Nochri. Since a Nochri is not required to free an Eved Ivri after six years (see Kidushin 15b and Chart #4 there), and a Nochri is not required to treat an Eved Ivri differently from any other Eved, the price of an Eved Ivri sold to a Nochri is close to the price of an Eved Kena'ani. However, his price must be less than that of an Eved Kena'ani since a Jewish Eved cannot work on Shabbos and Yom Tov, and he must be freed at the arrival of the Yovel year (if the Jewish governing body is dominant and the Nochri is subject to its laws).
</p><p>
This answers all of the questions on Rashi's explanation. An Eved Ivri may be sold to a Nochri in the marketplace, even nowadays, and even an adult Jewish woman may be sold in such a manner. (M. Kornfeld)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>OTHER SOURCES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Strengthening of question:</font></b> Surely we must apply this
          principal when one kills someone smaller or larger than
          himself! We cannot say that we do not kill the murderer
          in such a case, for it says 'there will be one (common)
          law for you'! Rather, since (the primary damage was that)
          he took his soul, the murderer's soul is taken.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Similarly, the damager deprived the victim of
               sight, so his sight is taken from him! (The Gemara
               rejected the Beraisa's proof.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa - R. Shimon):</font></b> 'An eye in place of an eye'
          refers to money.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps it literally means that he
               loses his eye!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> If a man who was blind, missing a limb
               or lame, and he inflicted this defect on someone
               else, we could not fulfill 'an eye in place of an
               eye.' The Torah said 'there will be one law for
               you'!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> This is no answer. When it is possible to
          fulfill 'an eye in place of an eye', we do so. When we
          cannot, we cannot, and he is exempt!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Strengthening of question:</font></b> We must say so about a
          Tereifah (a man terminally ill due to damage to an organ)
          who killed a healthy man! (We cannot accept testimony to
          kill him, since healthy witnesses, if found to be
          Zomemim, could not be killed for trying to kill a
          Tereifah.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we kill a murderer when it is possible
               (e.g. he is healthy). When we cannot, we exempt him.
               (The Beraisa's proof is rejected.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Tana d'Vei R. Yishmael - Beraisa):</font></b> 'So will be given
          to him' refers to money.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> 'Like (a man) who will give a blemish in a
          man' does not refer to money!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Tana d'Vei R. Yishmael expounds the repetition
          in the next verse.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It already says 'a man who will give a blemish in
               a man, like he did, so will be done to him';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'So will be given to him' is extra to teach that
               he gives money.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> 'Like when (a man) will give a blemish in a
          man' is also extra. What does it teach?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> It was only written for the sake of the end of
          the verse 'So will be given to him'.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(D'Vei R. Chiya):</font></b> 'A hand for a hand' refers to
          something given from hand to hand, i.e. money.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> If so, we should similarly expound 'a foot
          for a foot'!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> D'Vei R. Chiya expounds the repetition in the
          next verse.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It already says 'You will do to (a Zomem witness)
               like he plotted to do to his brother';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Beis Din cuts off the hand of one who cut off
               a hand, there would be no need to say 'a hand for a
               hand'!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rather, it is extra to teach that one who cut off
                    a hand pays money.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Why does it say 'a foot for a foot'?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Since it needed to write 'a hand for a hand',
          it also said 'a foot for a foot'.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Abaye):</font></b> We can learn (that money is paid) from Tana
          d'Vei Chizkiyah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Tana d'Vei Chizkiyah):</font></b> 'An eye for an eye, a
               soul for a soul', not an eye and a soul for an eye;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Beis Din inflicted bodily damage, they would
               blind the eye of one who blinded an eye - sometimes
               this would kill him, and he lost his eye and his
               soul for an eye!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Objection:</font></b> Perhaps we inflict bodily damage only when
          we estimate that this will not kill him!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we estimated that it will not kill him, and he
               died, this is not a problem.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Beis Din estimated how many lashes
               a person can endure without dying, but the person
               died, no one is liable.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Rav Zvid):</font></b> 'A wound for a wound' teaches that there is
          compensation for pain even when there is also
          compensation for Nezek.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We cannot say that Beis Din inflicts the same
               damage on the damager. This would cause the same
               pain, so the verse would not be needed!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Objection:</font></b> This is not always true. Perhaps it is the
          victim's nature to suffer more pain from the same wound
          than the damager does!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, what does the verse teach?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It teaches that the damager pays the
               victim for the additional pain the victim
               experienced.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> 'V'Rapo Yerapei' teaches that there is
          compensation for Refu'ah even when there is also
          compensation for Nezek.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It cannot be that Beis Din inflicts the same
               damage on the damager. He would also need to be
               healed, so the verse would not be needed!
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Objection:</font></b> This is not always true! Perhaps the
          victim's skin heals slower from the same wound than the
          damager's!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, what does the verse teach?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It teaches that the damager pays the
               victim for the victim's additional medical expenses.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LEARNING FROM A GEZEIRAH SHAVAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> We learn a Gezeirah Shavah 'Tachas-Tachas'
          from an ox.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says here (about a man who damaged a man) 'an
               eye Tachas an eye', and it says there (about an ox
               that damaged an ox) 'he will pay an ox Tachas an
               ox';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Just like the compensation for an ox is monetary,
               also compensation for an eye.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why learn the Gezeirah Shavah from an ox? We
          can learn from a man!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding a murderer it says 'you will give a
               soul Tachas a soul';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Just like that compensation is literally true,
               also compensation for an eye!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> It is preferable to learn damages from damages,
          and not from murder.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> To the contrary! It is preferable to learn a
          man (who strikes) from man, and not from an animal (that
          damages)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Correction (Rav Ashi):</font></b> Rather, we learn the Gezeirah
          Shavah from a rapist - 'Tachas that he pained her'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This discusses damages to and by people, like we
               seek to learn about.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	(Beraisa - R. Eliezer) 'An eye in place of an eye' is
          literal.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Does R. Eliezer really argue with all the
          previous Tana'im?!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> No. He teaches only that we do not
          evaluate the victim like a slave.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> Will we evaluate him like a free
          man? There is no value associated with a free man!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> Rather, we do not evaluate the
          eye of the victim, rather the eye of the damager (like a
          redemption of his eye).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>EVALUATION LIKE A SLAVE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A child's hand was severed (by a donkey). Rav Papa bar
          Shmuel said that they should evaluate the four damages.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rava):</font></b> The Mishnah lists five damages!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Papa):</font></b> I meant, the four damages in
               addition to Nezek.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> An animal only pays Nezek!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Papa:</font></b> Did an animal damage him? If so, go
               evaluate the Nezek.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> We must evaluate what he would be sold
               for like a slave!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rav Papa:</font></b> Go evaluate what he would be sold for
               like a slave.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> The boy's father:</font></b> No, that is a disgrace for him!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> People:</font></b> You deprive him of money that he is
               entitled to!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> His father:</font></b> When he grows older, I will appease
               him with my money.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	An ox chewed the hand of a child.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> Go evaluate what he would be sold for like
               a slave.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rabanan):</font></b> You taught that in Bavel we
               do not collect anything that requires an evaluation
               of one's slave value!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rava:</font></b> I did not say that the damager must pay
               this. Rather, if the victim grabs payment, we must
               know how much he may keep.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHAT WE COLLECT IN BAVEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If a man or ox damaged an ox, we collect this
          in Bavel. If a man or ox damaged a man, we do not collect
          this in Bavel.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between them?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> We don't collect damages to a man, because the
          Torah says 'Elohim (expert judges).' Only judges with
          Semichah may judge this (and we lack such judges in
          Bavel).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Also regarding damages to an ox, it says
          'Elohim'!
<br>
<br>

sjt:
<font><b>1) THE RULE OF 'MISHPAT ECHAD' -- GIVING THE SAME PUNISHMENT TO ALL PERPETRATORS OF THE SAME CRIME</b></font><b>
<br>QUESTION:</b> Raban Shimon bar Yochai suggests a source that 'Ayin Tachas Ayin' (Vayikra 24:20) means monetary reimbursement and not literally the blinding of the perpetrator's eye. His source is the verse, 'Mishpat Echad Yiheyeh Lachem' (Vayikra 24:22) -- all people who damaged in a certain way, such as by blinding someone, shall be punished in a similar fashion. If the person who damaged someone else is already blind, he obviously cannot be punished by being blinded, and thus not all damagers will be punished in the same way. It must be that all damagers must <i>pay money</i> for the damages they caused, and in that way all damagers are punished in the same fashion regardless of their physical state.
</p><p>
The Gemara rejects this proof by saying that if a person is already blind and thus cannot be punished by being blinded, the rule of 'Mishpat Echad' still applies. A blind person's inability to be blinded merely creates a situation of a <i>lack</i> of punishment, and not a <i>change</i> of punishment. 'Mishpat Echad' proscribes giving a <i>different</i> punishment (but not <i>no</i> punishment). The Gemara proves that exempting certain people from punishment does not contradict the rule of 'Mishpat Echad' from the fact that a person -- who is a Tereifah -- who kills someone is exempt from punishment, even though a healthy person who kills is punished with death. What is the source that a person who is a Tereifah who kills is exempt from punishment? <b>RASHI</b> cites the Gemara in Sanhedrin (78a) that explains that he is exempt because of the rule of 'Edus she'Iy Atah Yachol l'Hazimah.' Since the witnesses who testified against the Tereifah cannot be killed if they are found to be Zomemim, their testimony is not accepted even if they are not found to be Zomemim. (When witnesses testify that a Tereifah killed and are then found to be Edim Zomemim, the reason why the witnesses cannot be killed is that they did not conspire to kill a healthy person and therefore Beis Din cannot kill them (healthy people) as a punishment, since the Torah says that the punishment must be equal to what they intended to do to the victim.)
</p><p>
<b>REBBI AKIVA EIGER</b> (in Gilyon ha'Shas) asks, how can the Gemara prove anything from the Halachah of a Tereifah? Perhaps 'Mishpat Echad' indeed requires that all damagers be punished in the same way, and the reason why a Tereifah is not punished is <i>not</i> that the Torah does not ascribe to him an appropriate punishment. Rather, he is not punished because there is no way to know whether or not he actually killed; the witnesses who testify about him are not reliable since they know that they will not be punished if they are found to be Zomemim. The Gemara earlier (75b) explains that when witnesses cannot be punished as Zomemim their testimony is not reliable since they are not afraid of retribution in the event that they are found to be lying (see <b>RASHI</b> to 75b, DH Heichi Dami). If it would be possible to provide reliable testimony that a Tereifah killed someone, he <i>would</i> be punished. The Gemara in Sanhedrin (78a) teaches that if a Tereifah kills in front of a Beis Din (and thus it is not necessary to have testimony of witnesses to prove that he killed), he is punished with death since the Beis Din knows that he killed.
</p><p>
How, then, does the exemption of a Tereifah from punishment contradict the rule of 'Mishpat Echad'?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>NETZIV</b> (in Meromei Sadeh) suggests an alternate interpretation for the Gemara, in contrast to that of Rashi who explains that the Gemara here is based on the Gemara in Sanhedrin. The Netziv explains that the Gemara's words are unrelated to the principle of 'Edus she'Iy Atah Yachol l'Hazimah.' Rather, the Gemara means that when a Tereifah kills in front of Beis Din and he is punished with death, he cannot be punished in the same way in which a healthy person who kills is punished, since a healthy person loses a healthy life, so to speak, while a Tereifah loses a weak life. Nevertheless, Beis Din punishes him in whatever way they can. The Gemara suggests that in a similar manner, if a person with weak eyesight blinds another person, Beis Din punishes the perpetrator by blinding him since that is the closest they can come to giving him the punishment which any other person receives for blinding someone. Similarly, if a person who is completely blind blinds another person, although Beis Din cannot punish him through blinding, the rule of 'Mishpat Echad' is not contradicted since Beis Din has done to him whatever was possible (which, in this case, was nothing).
</p><p>
Rashi does not accept this approach because the words of the Gemara imply that it seeks to prove that it is not a contradiction to 'Mishpat Echad' when a Tereifah is <i>exempt</i> from punishment for his act of killing, and <i>not</i> when a Tereifah is punished for killing. Moreover, Rashi might not accept the logic of the Netziv that if a partial punishment does not contradict 'Mishpat Echad,' then a lack of punishment also does not contradict 'Mishpat Echad.' Perhaps exempting some people from any punishment while punishing others for the same act <i>is</i> a contradiction to 'Mishpat Echad.'
</p><p>
(b) The <b>KOVETZ SHI'URIM</b> (2:39:3) suggests an alternate explanation for the Gemara. He points out that the <b>RAMBAM</b> (Hilchos Nizkei Mamon 10) writes that when a Tereifah kills, he is not put to death because he is already considered dead. The Rambam seems to contradict the Gemara in Sanhedrin which gives a different reason for the Tereifah's exemption from the death penalty. The Gemara in Sanhedrin exempts a Tereifah who killed because the testimony against him is not testimony that allows for the possibility that the witnesses will become Edim Zomemim, and therefore the Tereifah <i>is</i> punished with death if he kills in front of Beis Din (see Ra'avad there). What is the source for the Rambam's ruling that a Tereifah is always exempt from death because he is considered to be already dead?
</p><p>
The Kovetz Shi'urim answers that the Rambam's source is the Gemara here, which implies that the reason why the Tereifah is exempt is not simply that the witnesses who testify against him are unreliable. Rather, he is exempt even when his guilt is obvious (such as when he killed in front of Beis Din). The Gemara must intend to exempt a Tereifah from death for a different reason and not for the reason given by the Gemara in Sanhedrin. It is the Gemara here which serves as the source for the Rambam's ruling that a Tereifah is exempt because he is considered to be already dead.
</p><p>
(See also <b>DIBROS MOSHE</b> #56 who explains at length that the Amora'im argue about the reason why a Tereifah is exempt from death, and that is how he explains the Gemara here.)
</p><p>
(c) The question of Rebbi Akiva Eiger is based on the fact that when the Edus is 'Edus she'Iy Atah Yachol l'Hazimah,' the testimony is not reliable, as Rashi writes (75b). However, it is possible that Rashi explains 'Edus she'Iy Atah Yachol l'Hazimah' in this manner only according to the opinion of Sumchus, who makes an exception to this rule in a case where Beis Din knows that the testimony is reliable (for example, when the defendant himself agrees that the witnesses saw him do what they claim he did). However, the Chachamim -- who argue with Sumchus and do not accept testimony that is 'Iy Atah Yachol l'Hazimah' even when Beis Din knows that it is reliable -- follow a different logic. They maintain that Edus must be 'Yachol l'Hazimah' because of a Gezeiras ha'Kasuv (Devarim 19:18) which teaches that Beis Din must ask the witnesses seven interrogatory questions with regard to the time and place of the event ('Chakiros') in order to enable their testimony to be proven false through Hazamah and receive the same punishment that they tried to inflict, the punishment of Edim Zomemim. (See Insights to 75:3.) This indeed is the implication of Rashi in Pesachim (12a, DH d'Havah Lei Edus) and in Sanhedrin (40a, DH b'Ezeh Yom, and DH Chakiros).
</p><p>
The Gemara here, therefore, might follow the opinion of the Chachamim who argue with Sumchus. This explains why the Gemara proves from a Tereifah's exemption from punishment that 'Mishpat Echad' applies even in a case in which some people would be exempt from punishment. A Tereifah is always exempt from punishment even when Beis Din knows for certain that he killed, and nevertheless a healthy person is punished for the same act. (M. Kornfeld)
</p><p>


<font><b>2) 'YAD B'YAD' -- A HAND FOR A HAND</b></font><b>
<br>QUESTIONS:</b> D'Vei Rebbi Chiya learns that 'Ayin Tachas Ayin' means monetary compensation from the words in the verse regarding the punishment of Edim Zomemim. The Torah (Devarim 19:21) states that Beis Din must punish the Edim in the same way they wanted to punish the defendant. Why does the verse need to add the words, 'Yad b'Yad' ('hand for hand')? The verse must be teaching that the punishment that the defendant would have received for taking off someone's hand is not what one might have thought it to be. Rather, the punishment is to pay money, and therefore the Edim Zomemim are punished by having to pay money rather than by losing their hands.
</p><p>
(a) Why does d'Vei Rebbi Chiya not make an identical inference from the verse in Vayikra (24:20), regarding the Halachah of compensation for bodily damage, which the Gemara itself was discussing until now? The verse there already says that 'whatever he (the damager) did must be done to him,' so why does it add 'Ayin Tachas Ayin'? It must be that the verse intends to teach that Beis Din does not punish the damager with physical damage!
</p><p>
(b) The Gemara explains that after the verse says 'Yad b'Yad' with regard to Edim Zomemim, it adds 'Regel b'Ragel' because of the words 'Yad b'Yad,' as the two expressions are found together. Why, though, does the verse say, 'Nefesh b'Nefesh, Ayin b'Ayin, Shen b'Shen,' <i>before</i> it says 'Yad b'Yad'? If the primary point of the verse is 'Yad b'Yad' and the other phrases are mentioned only because of the similarity in expressions with the verse in Vayikra, then they should <i>follow</i> 'Yad b'Yad' and not precede 'Yad b'Yad'! It must be that they, too, are intended to teach something. What laws do those expressions teach?
</p><p>
<b>ANSWERS:</b>
<br>(a) The verse in Vayikra -- which states that Beis Din punishes the perpetrator by blemishing him in a way similar to the way he blemished his fellow man -- is not clear enough by itself. Perhaps the verse (if it means that the perpetrator is punished physically) applies only to a <i>temporary</i> blemish or to loss of limbs that are less important. This would explain why the verse needs to specify 'Ayin Tachas Ayin...' -- to show exactly how the punishment should be administered. In contrast, the verse with regard to Edim Zomemim is very clear, since the Torah already teaches what punishments Beis Din administers to a criminal, and the verse says that the same punishments that would have been administered to the criminal are administered to the Edim Zomemim. Therefore, it is not necessary for the verse to say 'Yad b'Yad' if not to teach something new.
</p><p>
(b) The Torah writes 'Nefesh b'Nefesh' with regard to Edim Zomemim to teach that the Edim are not killed unless they succeeded in having the verdict, the Gemar Din, issued by Beis Din.
</p><p>
The Torah says 'Ayin b'Ayin, Shen b'Shen' with regard to Edim Zomemim before it adds 'Yad b'Yad' in order to show that 'Yad b'Yad' teaches a Halachah which applies to the other place in the Torah where 'Ayin Tachas Ayin' and 'Shen Tachas Shen' are mentioned. The Torah teaches that the punishment for damaging someone's eye or tooth is to be administered in terms of something that is given over 'from hand to hand' -- money -- rather than physical punishment. That is why the verse there adds 'Yad b'Yad.'
</p><p>
The Gemara asks why the verse adds 'Regel b'Ragel' when both Yad and Regel are not mentioned in the verse in Vayikra which discusses the punishment for damaging a person. The Gemara answers that Regel is included in the verse only because of its similarity to the verse in Shemos (21:24) which mentions both Yad and Regel, and Ayin and Shen.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES SEIZURE HELP TO COLLECT NOWADAYS?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 15b:</font></b> Since half-damage is a fine, if a dog ate a
               (large) sheep, this is abnormal (hence a Toldah of
               Keren), so we do not collect it in Bavel (like all
               other fines). If the victim seized payment, we do
               not make him return it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 74b (Beraisa):</font></b> Once, R. Gamliel told Yehoshua 'I
               blinded the eye of my slave Tavi.' R. Yehoshua said
               'he does not go free, for you have no witnesses.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> If he had witnesses, Tavi would go free,
               even though R. Gamliel already admitted. His
               admission did not exempt because he did not admit in
               front of Beis Din, or because it was not in Beis
               Din.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 84a:</font></b> Once, an ox chewed the hand of a child. Rava
               commanded to evaluate what he would be sold for like
               a slave.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Rabanan):</font></b> You taught that in Bavel we do
               not collect anything that requires an evaluation of
               one's slave value!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rava:</font></b> I did not say that the damager must pay this.
               Rather, if the victim grabs payment, we must know
               how much he may keep.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (6a and 30a, 1:20 and 8:2) bring
               the Gemara.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> The Rif's text says that we evaluate now, in
               case the victim will seize. This is wrong. We
               evaluate only if the victim seized. Some texts say
               like this.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (1:20):</font></b> Even though half-damage is a fine and
               we do not collect it in Bavel, if the victim seized,
               he need not return it. R. Tam says that Chachamim
               were lenient about this only if he seized the
               damager itself at the time of the damage. If one may
               seize anything and need not return it, this would
               lead to disaster. People will steal everything from
               one another, since we do not take it back, since we
               do not judge fines in Bavel. One will lose more than
               he damaged!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri (8:2):</font></b> Or Zaru'a says that R. Tam
                    says that the same applies to other Avos
                    Nezikim, e.g. Shen, Regel, man, fire, a pit,
                    the four Shomrim, healing, unemployment, Boshes
                    due to damage, a Ganav (to pay principal) or
                    Gazlan, Edim Zomemim when the money cannot be 
                    returned, and Moser. Mahari'ach was unsure
                    about fire and a pit.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh:</font></b> R. Tam is difficult. If one took more than the
               damage, Beis Din can judge the case to make him
               return the excess! This is not called judging fines,
               for he already collected the damage through the
               enactment. We judge only to return the excess!
               Rather, no matter what he took, we do not remove it. 
               If he took more than the damage, we judge the case
               and make him return the excess.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (ibid., citing the Ra'avad):</font></b> Seizure does not
               help if he admitted, even if he seized before he
               admitted. A slave is like one who seized himself,
               yet R. Gamliel's admission stopped Tavi from going
               free (74b)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (ibid., citing the Ramban):</font></b> Admission exempt
               only in Beis Din (74b)! An ox cannot become Mu'ad in
               Bavel (84b), for there is no Beis Din of judges with
               Semichah. Likewise, nowadays there cannot be
               admission in Beis Din. Therefore, we do not take
               from one who seized before or after admission. A
               case occurred (19b) in which Rav Yehudah obligated
               half-damage (a fine); we must say that this is if
               the victim seized, or summonsed him to trial in
               Eretz Yisrael. Nowadays we do not summons, for there
               are no Semuchim even in Eretz Yisrael.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rosh:</font></b> The Ramah says that seizure helps only up to
               the value of the damage. If one seized more, e.g.
               Kefel, four or five, we remove it. Chachamim allowed
               keeping only up to the value of the damage. Also, it
               is an enactment that seizure helps. Chachamim
               enacted only up to the damage, so the victim will
               not lose, but not that he should profit from others'
               money.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rebuttal (Rosh):</font></b> It is mid'Oraisa law, just no judge
               in Bavel can enforce it. Therefore, the victim may
               take the law into his own hands. We do not remove up
               to what the damager owes mid'Oraisa. If the victim
               says 'accept my (witnesses) testimony, so if I will
               seize, you will not take it from me', we do not
               accede, for we do not collect fines in Bavel. This
               is why there is no Mu'ad in Bavel. If the damager
               says that he seized too much, we accept testimony to
               judge this. If he cannot bring proper testimony, he
               must return it.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rambam (Hilchos Sanhedrin 5:9):</font></b> Judges in Chutz
               la'Aretz judge only common things that entail
               monetary loss, e.g. admissions, loans, and property
               damage.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rambam (17):</font></b> Even though we do not collect fines in
               Chutz la'Aretz, if the victim seized the proper
               amount, we do not take it from him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (7, citing R. Baruch):</font></b> R.
                    Tam holds that even Tefisah of the damager
                    itself helps only right after the damage,
                    before it comes to the owner's hand. We find
                    that R. Tarfon holds that Tefisah helps after
                    death; Rav and Shmuel say that it helps only in
                    Reshus ha'Rabim (Kesuvos 84b).
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 1:5):</font></b> Judges without Semichah in
               Eretz Yisrael cannot collect fines in Bavel.
               However, if the victim seized the proper amount, we
               do not take it from him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (18):</font></b> We do not take it from him even if he
                    seized Kefel, four or five. R. Tam allows
                    seizing only the damager, and only immediately.
                    The Mechaber says Stam that Tefisah helps, like
                    the Rosh. The Mordechai rules like R. Tam
                    regarding Nezek of Keren (goring or anything
                    unusual), and like those who disagree regarding
                    other damages. The Mechaber did not say that
                    Tefisah does not help after admission. He holds
                    like the Ramban, who says that admission
                    exempts only in front of Semuchim, which we do
                    not have.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (19):</font></b> The Tur says that if one seized and
                    cannot bring witnesses (that he was owed), he
                    must return it. The Maharshal says that if
                    witnesses did not see him seize, he is believed
                    Migo (since) he could say that he did not
                    seize.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If the victim says 'assess the damage, so if I
               will know how much I may seize', we do not accede.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (24):</font></b> According to the Rif's text, we
                    accede. Also Rashi says so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (17):</font></b> In something that is not a fine,
                    the Maharshal rules like the Rif, that we
                    assess to enable him to seize.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If he already seized, we
               assess and say 'this you may keep; return the rest.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (6):</font></b> Binyamin Ze'ev (132) says
                    that even though nowadays admission in Beis Din
                    does not exempt if witnesses come later, it
                    does not obligate if witnesses do not come (if
                    the victim seized, we take it from him).
                    Perhaps the Ramban disagrees.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz:</font></b> Tefisah helps even in front of witnesses.
                    It is not so he will be believed (through a
                    Migo). Rather, one who seized does not need
                    judges. He takes the law into his own hands.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema (CM 348:4):</font></b> The Mechaber did not teach when a
               Ganav pays four or five because it is a fine and
               does not apply nowadays. However, it is relevant if
               the victim seized the money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (11):</font></b> Perhaps the Mechaber holds like the
                    Ramah, that it is an enactment that seizure
                    helps. Chachamim enacted only up to the value
                    of the damage. The Rema holds like the Rosh,
                    that it is mid'Oraisa law, hence even if he
                    seized the full Kefel or four or five, he need
                    not return it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (18):</font></b> The Gemara supports the Ramah. We
                    find only that half-damage was collected in
                    Bavel through seizure, but not Kefel. It is an
                    enactment that seizure helps. Chachamim enacted
                    only up to the value of the damage. The Rema
                    holds like the Rosh, that it is mid'Oraisa law,
                    hence even if he seized the full Kefel or four
                    or five, he need not return it.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HALF-DAMAGE IS A FINE </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> We (judges in Chutz la'Aretz) are Sheluchim of
          ordained judges in Eretz Yisrael to collect damages to an
          ox, just like we are Sheluchim to judge cases of
          admissions and loans.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Also regarding damages to a man, we should be
          Sheluchim to collect!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1:</font></b> We are Sheluchim only for cases that we know
          how to judge. (We do not know the value of people.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection #1:</font></b> Also when an ox or person damages an ox,
          we do not know its value!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we see what people pay for oxen.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Likewise, when a person or ox damages a person,
               we can see what people pay for slaves!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection #2:</font></b> Kefel of a thief, also four and five are
          fixed. We should be Sheluchim to collect them!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> We are Sheluchim to collect only principal,
          but not to collect fines.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection:</font></b> If a man damages a man, this is principal.
          We should collect it!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #3:</font></b> We are Sheluchim only to collect things that
          are common. It is uncommon for a man to strike a man.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection:</font></b> Embarrassment and blemish (of a virgin
          Na'arah who was raped or seduced) are common. We should
          be Sheluchim to collect them!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, we are!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Papa collected 400 Zuz for embarrassment.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Rejection:</font></b> Rav Papa erred.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Chisda had asked Rav Nachman about payments
               for embarrassment. Rav Nachman replied that we do
               not collect them in Bavel.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #4:</font></b> We are Sheluchim only to collect common
          things in which the victim loses money;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a man hit a man, even though the victim loses
               money, since it is not common, we are not Sheluchim
               to judge it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even though embarrassment is common, since the
               victim does not lose money, we are not Sheluchim to
               judge it.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>DO WE COLLECT FOR DAMAGE OF ANIMALS IN BAVEL?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Rava said above (end of 84a) that we collect
          for an ox that damages an ox. He contradicts himself!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> We do not collect for an ox that damaged
               in Bavel.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What did it damage?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it struck a man, Rava should have taught a
                    bigger Chidush. We do not collect even for a
                    man who struck a man!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it struck an ox, and Rava taught
               that we do not collect!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> We do not collect from a Tam. We collect
          from a Mu'ad.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> Rava taught that (becoming) Mu'ad does not
          apply in Bavel!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, it became Mu'ad in Eretz Yisrael,
          then it came to Bavel.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> This is not common. We are not Sheluchim to
          judge uncommon things!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, judges of Eretz Yisrael came to
          Bavel, it became Mu'ad in front of them. (Afterwards, it
          damaged in front of judges of Bavel.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> Also this is not common, so we are not
          Sheluchim to judge it!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Regarding Shen and Regel, which are Mu'ad
          from the beginning, Rava taught that we collect for an ox
          that damaged an ox.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>EVALUATION OF PAIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> To evaluate pain, if he burned him with a
          spit or nail (even on his fingernail)...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Which Tana holds that one pays for pain even
          if no Nezek was inflicted?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> It is Ben Azai.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Rebbi):</font></b> The Torah first discusses a
               scalding;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Ben Azai:</font></b> The Torah first discusses a wound.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rebbi holds that 'Keviyah' (scalding)
          connotes that there is no wound. The Torah wrote 'wound'
          to teach that one is liable only for a scalding with a
          wound;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Ben Azai holds that 'Keviyah' connotes that there
               is a wound. The Torah wrote 'wound' to teach that
               Keviyah refers to a scalding without a wound.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> To the contrary! Rebbi says that
          the Torah first discusses a scalding. He holds that
          'Keviyah' connotes that there is a wound. 'Wound' teaches
          that Keviyah refers to a scalding without a wound;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Ben Azai says, the Torah first discusses a wound.
               He holds that 'Keviyah' connotes that there is no
               wound; the Torah wrote 'wound' to teach that one is
               liable only for a scalding with a wound.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Tana'im argue about which was discussed
               first, i.e. the true meaning of the verse (after
               expounding it).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #3:</font></b> 'Keviyah' connotes a scalding with or
          without a wound. They argue about a Klal (Keviyah) and
          Prat (wound) that are distant from each other.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi does not expound this like a Klal u'Frat;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Ben Azai expounds this like a Klal u'Frat.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If so, according to Rebbi, what does 'wound'
          teach? (Even without it, we include a scalding with or
          without a wound!)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> It teaches that when there is also a wound, one
          pays for both.
<br>

<p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>EVALUATION OF PAIN (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We evaluate how much a person like this
          would want to receive...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> How do we evaluate pain when there is also
          Nezek? (He already receives compensation for losing the
          limb)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Shmuel's father):</font></b> We evaluate how much one like
          this would want to receive to have his leg or arm cut
          off.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection #1:</font></b> This is wrong. He would demand money
          equal to all five damages!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection #2:</font></b> A normal person would not agree to have
          his limb cut off for any sum of money!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Correction:</font></b> We evaluate how much one like this would
          want to receive to have his limb cut off if it was
          dangling (and useless).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> That is too much, for it also entails
          embarrassment (that his limb will be fed to dogs)!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Correction:</font></b> We imagine that the king had decreed that
          his limb must be cut off; we evaluate how much one would
          want to receive to have it cut off the way the damager
          did this, as opposed to through a potion (painlessly).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection:</font></b> A normal person would not agree to cause
          himself pain on condition to receive money!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Correction:</font></b> We imagine that the king had decreed that
          his limb must be cut off. We evaluate how much one would
          pay to have it cut off (painlessly) through a potion, as
          opposed to the way the damager cut it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Shmuel's father said that we evaluate how
          much one like this would want to receive, not to pay!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Huna brei d'Rav Yehoshua):</font></b> He means, the
          victim receives from the damager what a man would pay to
          the king (to have his limb cut off painlessly).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>REFU'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Medical expenses: if Reuven hit Shimon, he
          must cure him...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If sores developed due to the blow and
          covered the wound, Reuven must heal him and pay for his
          Sheves due to the sores;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If the sores are not due to the blow, he is exempt from
          Refu'ah and from Sheves;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yehudah says, even if they are due to the blow, he
          need only heal him. He is exempt from Sheves;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Chachamim say, the Torah equated Sheves and Refu'ah to
          teach that whoever is liable for Sheves is liable for
          Refu'ah, and whoever is exempt from Sheves is exempt from
          Refu'ah.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rabanan of Bei Rav):</font></b> They argue about
          whether Shimon may wrap up the wound (to avoid pain of
          the cold, and Reuven remains liable for sores that
          develop due to this).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say that he may wrap up the wound (i.e.
               he is entitled to do so, and Reuven remains fully
               liable);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, he may not wrap up the wound (if he
               wants that Reuven retain liability);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (Even so, if he did so and sores developed,)
                    Reuven must heal him. We learn from the double
                    expression 'v'Rapo Yerapei';
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  He is exempt from Sheves. The Torah did not
                    repeat this.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection (Rabah):</font></b> If he may not wrap up the wound,
          Reuven is exempt even from Refu'ah!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Rabah):</font></b> All agree that he is entitled to
          wrap up the wound, but not excessively.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah says, since he may not wrap
               excessively, Reuven is liable only for Refu'ah (due
               to the double expression), but not for Sheves;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, since the Torah obligates Reuven
               for Refu'ah, he is also liable for Sheves, for the
               Torah equates these.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehudah says, the Torah explicitly exempted
               him from Sheves (in this case) - 'just (he will give
               his Sheves)'.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Chachamim say that that discusses when the sores
               are not due to the wound.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> According to the latter Chachamim (in the
          Seifa of the Beraisa), who equate Refu'ah  to Sheves, why
          did the Torah use a double expression of Refu'ah? (He is
          exempt even from Refu'ah!)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> It teaches like Tana d'Vei R. Yishmael;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Tana d'Vei R. Yishmael):</font></b> 'V'Rapo
               Yerapei' teaches that doctors may heal.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Beraisa) Question:</font></b> What is the source that if sores
          developed due to the blow and covered the wound, he must
          pay for Refu'ah and Sheves?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Just he will give his Sheves, and v'Rapo
          Yerapei'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps this applies even if the
               sores are not due to the blow!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> It says 'just'.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	R. Yosi bar Yehudah says, 'just' teaches that even if
          they are due to the blow, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1:</font></b> He is fully exempt, like the latter
               Chachamim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2:</font></b> He is exempt from Sheves but liable
               for Refu'ah, like R. Yehudah says.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Beraisa) Suggestion:</font></b> Perhaps this applies even if the
          sores are not due to the blow!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Rejection:</font></b> It says 'just'.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> If the sores are not due to the blow, why do
          we need a verse to teach that he is exempt?!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> Not due to the blow' means as follows:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa) Suggestion:</font></b> If Shimon (the victim)
               disobeyed the doctor and ate honey and sweet things,
               which are bad for a wound, and dead skin arose on
               it, perhaps Reuven (the damager) must heal him!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rejection:</font></b> 'Just' teaches that he is exempt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If Reuven says 'I will cure you', Shimon can say
               'I fear you. I want someone else.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If Reuven says 'my relative will cure you for
               free', Shimon can say 'a proper doctor demands
               wages.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> If Reuven says 'I will hire a doctor from afar
               for you', Shimon can say 'he will return home.
               Perhaps he will not take proper responsibility for
               my health'.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> If Shimon says 'give me the wages of a doctor, I
               will heal myself', Reuven can say 'you will heal
               improperly, and this will result in larger medical
               expenses'.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> If Shimon says 'fix the amount to heal, and give
               this to me to heal myself' (and you will be exempt),
               Reuven can say 'you will be negligent, and people 
               will think that I harmed you severely.'
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE OTHER PAYMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> All (other four damages) are paid even when
          Nezek is paid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Zvid):</font></b> 'A wound in place of a wound'
          obligates for pain even when Nezek is paid.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> We need that verse to teach that one pays
          whether he damaged b'Mezid or b'Shogeg, whether he was
          forced or acted willingly!
<br>
<br>

sjt:
<font><b>1) PERMISSION FOR A DOCTOR TO HEAL</b></font><b>
<br>QUESTION:</b> The Gemara derives from the extra phrase of 'Rapo <i>Yerapei</i>' (Shemos 21:19) that a doctor is permitted to heal sick people.
</p><p>
Why would one have thought that a doctor is <i>not</i> permitted to heal a sick person, had the Torah not included the extra word 'Yerapei'? The verse refers to a situation in which one person causes bodily damage to another, and the victim needs to pay a doctor to heal him. It is obvious from the verse, even without the extra word, that a person who is harmed does not have to passively accept the fate of being wounded by the other person, but that he may go to a doctor to be healed.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> and <b>TOSFOS</b> seem to understand that the Gemara learns from the extra word that even when a person becomes sick or bruised without human intervention, but rather as a Divine decree, a doctor still is permitted to heal him. One might have thought that this is a matter of faith in Hash-m and that a person should trust that just as Hash-m brought the illness upon him, Hash-m will take it away. The verse teaches that it is not considered a lack of faith to turn to a doctor for healing (as long as he recognizes that it is ultimately Hash-m who enables the doctor to heal him; <b>TESHUVOS HA'RASHBA</b> 1:413).
</p><p>
The <b>RAMBAN</b> (Vayikra 26:11) indeed writes that a person with a high level of trust in Hash-m will not turn to a doctor but will ask Hash-m to heal him directly. (See Insights to Berachos 60:2.)
</p><p>
The Rashba adds that this verse teaches that one is even permitted to use methods that are poorly understood and apparently superstitious in order to heal the sick, as long as they have been proven to be effective. As Abaye and Rava teach in Shabbos (67a; see Insights there), anything done in order to heal is not a transgression of 'Darchei Emori' (following the idolatrous ways of the Emorites). Accordingly, the verse teaches that healing in such a manner does not resemble idolatry in any way. (See Insights to Berachos 10:2, where we explain that this might have been the reason why the Chachamim praised Chizkiyah for hiding the Sefer Refu'os.)
</p><p>
(b) The <b>MOSHAV ZEKENIM</b> (Shemos 21:19) explains that this Derashah is similar to the Derashah of 'Shale'ach Teshalach' (Devarim 22:7; see Bava Metzia 31a and Chulin 141a), which teaches that one must send away the mother bird 'even 100 times.' Here, too, the verse teaches that a doctor may attempt to heal many times if previous efforts failed. One might have thought that if previous efforts failed, that is a Divine sign that Hash-m wants the person to remain ill or maimed. The verse teaches that the failed efforts should not be construed as such, and the doctor may repeatedly attempt to cure the person.
</p><p>
(c) <b>RABEINU CHANANEL</b> (cited by the Moshav Zekenim) explains that one might have thought that a doctor is prohibited to heal with strong medications, because the medications might adversely or mortally affect the person being treated. The verse teaches that the doctor may practice medicine to the best of his ability, as long as he genuinely intends to help the person. This is also the approach of the <b>RAMBAN</b> (in <b>TORAS HA'ADAM</b>, p. 41).
</p><p>
(d) <b>TOSFOS HA'ROSH</b> in Berachos (60a) cites <b>RABEINU YAKOV</b> of Orleans who explains that the verse permits a doctor to receive wages for his services. Normally, one is not permitted to take money for a Mitzvah, such as for returning a lost object (see Nedarim 38b). A doctor, however, is permitted to take wages for his services.
</p><p>
(e) The <b>TUR</b> (beginning of YD 336) explains that the Gemara is not teaching that a doctor is <i>permitted</i> to heal, but that it is a <i>Mitzvah</i> for him to heal. He should not refrain from healing out of fear that he might accidentally harm the person he is trying to help. Rather, he should view it as a Mitzvah and he should offer his services wherever possible.
</p><p>
The Ramban (in Toras ha'Adam) takes this further and says that it is an obligation for a doctor to heal because of 'Piku'ach Nefesh,' the obligation to save a person's life. (The obligation is the <i>doctor's</i> when the patient wants his services. However, the <i>patient</i> can act with Midas Chasidus and choose not to turn to doctors for help; see Insights to Berachos 60:1-2.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOCTORS MAY HEAL</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Tana d'Vei R. Yishmael):</font></b> 'V'Rapo Yerapei'
               permits doctors to heal.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Berachos 60a (Rav Acha):</font></b> One who goes to let blood
               prays 'may this be for a cure. May You heal me, for
               You are a faithful healer. Your cure is a true
               cure'. It is improper for people to engage in
               Refu'ah, but they accustomed themselves to.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection (Abaye - Beraisa):</font></b> The Torah permits
               doctors to heal!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Yevamos 106b:</font></b> Rav Papa's wife's sister fell to an
               unworthy Yavam. Rav Papa told him to do Chalitzah on
               condition that she will pay him 200 Zuz. Afterwards,
               Abaye said that she should pay him. Rav Papa said
               that she was just fooling him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> If a man was fleeing jail, and
                    offered the ferryman a Dinar (a large amount)
                    to take him across, he owes only the usual
                    fare.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> He can say that he was just joking. Also she
                    can say that she was just joking!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rosh (Nedarim 4:8):</font></b> Refu'ah is a Mitzvah. The
               Yerushalmi says that a Choleh does not merit to be
               cured by everyone.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Ramban (cited in Beis Yosef YD 336 DH u'Mah
               she'Chosav she'Lo):</font></b> The Torah permits a doctor to
               heal. One might have thought that it is forbidden
               lest he err, or lest people say 'Hashem strikes, and
               he heals.' It is not natural for people to engage in
               Refu'ah; it is merely their custom. It is Reshus,
               i.e. a Mitzvah to heal. Doctors may authorize people
               to eat Isur. We Mechalel Shabbos for Refu'ah. This
               shows that it is Piku'ach Nefesh, which is a great
               Mitzvah. It is praiseworthy to be zealous about
               Piku'ach Nefesh. One who asks (if one may be
               Mechalel) spills blood, all the more so if a
               qualified doctor totally refrains!
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 336:1):</font></b> The Torah permits doctors
               to heal. It is a Mitzvah. It is part of Piku'ach
               Nefesh.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (1):</font></b> If it is a Mitzvah, why is it called
                    Reshus? It seems that true Refu'ah is through
                    asking mercy from Hash-m - 'I struck, and I
                    heal.' However, not all merit this, so one must
                    engage in 'natural' cures. Hash-m consented,
                    and gave Refu'ah through nature. This is the
                    Torah's Reshus. Now, it is obligatory to cure.
                    Rav Acha holds that one must apologize for
                    seeking natural Refu'ah, like the custom of
                    people, and acknowledge that true Refu'ah is
                    from Hash-m. Abaye disagrees, for the Torah
                    consented.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Yad Avraham:</font></b> It is permitted only if he knows
                    that his Refu'ah is from Hash-m, and does not
                    depend on the medicine or the doctor.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> One who refrains from this
               spills blood, even if there is someone else to heal
               the Choleh, for one does not merit to be healed from
               everyone. However, one should engage in Refu'ah only
               if he is an expert and no one there is better than
               him. If not, he spills blood.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (4):</font></b> One may not rule in Halachah where
                    there is someone greater. All the more so this
                    applies to Refu'ah! Accidentally making one
                    bleed is an Isur b'Shogeg (Sanhedrin 84b). The
                    best doctor goes to Gehinom (Kidushin 82a).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If one cured without Reshus
               (permission) of Beis Din, he must pay, even if he is
               an expert. If one cured with Reshus of Beis Din, and
               erred and damaged, he is exempt b'Yedei Adam, and
               liable b'Yedei Shamayim. If he killed and found out
               his mistake, he goes to Galus.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ramban (in Beis Yosef DH u'Mah Aval):</font></b> A Tosefta
                    (9:3) teaches that if a doctor cured with
                    Reshus and killed, he is exiled. This suggests
                    that he is punished like for Shogeg. Really, he
                    is like a judge who is commanded to judge. If
                    he unknowingly erred, he is not liable at all;
                    one judges according to what he sees. Still, if
                    Beis Din learns that he erred, in certain cases
                    he must pay. If a judge had Reshus of Beis Din
                    he is exempt. Here he is exempt b'Yedei Adam,
                    but liable b'Yedei Shamayim he must pay for
                    damage or go to Galus for death. If he did not
                    learn of his mistake, he is not liable at all.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> A doctor may not take wages for
               his Chachmah and Limud (teaching). He may take for
               his toil.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> He may not wages for what he learned, for
                    the Torah obligates returning an Aveidah of the
                    body - 'va'Hashevoso Lo.' The Torah obligates
                    doing Mitzvos for free. He may take for his
                    toil and for wages he lost
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH ul'Inyan):</font></b> The Ramban concludes
                    'wages for his Chachmah and Limud are
                    forbidden, like wages for sprinkling and Kidush
                    (with ashes of Parah Adumah). Wages for his
                    toil are permitted, like wages for bringing and
                    filling. All the more so, he may take for wages
                    he lost, like the Mishnah says.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz (2 and Shach 5):</font></b> 'Limud' refers to teaching
                    the Choleh (or others who administer it) how to
                    administer the cure.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Darchei Moshe (1):</font></b> The Nimukei Yosef says that
                    the Ritva disagrees. He is paid only like an
                    idle worker, or his proper wage. Binyamin Ze'ev
                    (280) says that he must pay everything he
                    stipulated, for it is normal to pay much to a
                    doctor at times. Also Semag (Aseh 74, 153a)
                    says so.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> If Levi has medicine and David
               is sick and needs it, Levi may not charge more than
               its proper value. Further, even if they stipulated a
               high price, due to the need at the time, for David
               could not find anyone else with it, Levi gets only
               its value. However, if one hired a doctor for a high
               fee he must pay it, for he sold his Chachmah, and
               this has no price.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Mi):</font></b> The Ramban derives this
                    from Yevamos 106, and also the Rashba (brought
                    in Magid Mishneh (Hilchos Gezeilah 12:7).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bedek ha'Bayis:</font></b> The Mordechai (Yevamos 24,25)
                    says that if he paid him, he cannot take back
                    the money.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rema:</font></b> Even though he has a Mitzvah to heal him, any
               Mitzvah incumbent on everyone, if it happened to
               come to a person and he wanted to fulfill it only
               for money, we do not take it from him, nor do we
               uproot their obligation to pay him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav, citing the Ramban):</font></b> Some
                    say that the ferryman gets only what he would
                    want to be idle, for Hashavas Aveidah obligates
                    him to save the man. If so, a doctor is paid
                    only for the wages he lost, even if he
                    stipulated for more. This is unreasonable. In
                    Yevamos we learned from the ferryman to
                    Chalitzah. The Yavam was not obliged to do
                    Chalitzah. He could do Yibum! Rather, the
                    Halachah is that one who stipulates under
                    duress is obligated only the usual amount. A
                    doctor is worth whatever he charges, so one
                    must pay it, even though he is commanded to
                    heal. If a Mitzvas Aseh incumbent on everyone
                    came to a person and he wanted to fulfill it
                    only for money, we do not take it from back him
                    or uproot the obligation to pay him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (3):</font></b> One may not take money for Limud and
                    Chachmah, but since he stipulated and the
                    Choleh obligated himself, he is liable, for the
                    Mitzvah to heal is not only on him. Anyone can
                    learn Refu'ah! The ferryman gets only his
                    normal wage because there is a fixed fee. This
                    does not apply to Refu'ah. A stipulation helps
                    because the doctor was not obligated to learn
                    Refu'ah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Einayim l'Mishpat (Yevamos 106b:5):</font></b> It is not
                    clear whether it suffices that it is a Mitzvah
                    for him to save, or if we also require that no
                    one else can save.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>MUST ONE FULFILL WHAT HE PROMISED UNDER DURESS? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Had it came only for that, it should have said
          'a wound for a wound.' It says 'a wound in place of a
          wound' to teach both.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> 'V'Rapo Yerapei' teaches that one
          pays for Refu'ah even when Nezek is paid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> The verse teaches like Tana d'Vei R.
               Yishmael (to permit doctors to heal)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> To teach that, it would have said 'a
               doctor will heal'; rather, it says 'v'Rapo Yerapei',
               to obligate for pain when Nezek is paid. (The Gemara
               connotes that the verse comes only for this. Zera
               Yitzchak explains that it teaches both of these.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> We used the double expression above (to
               obligate for sores)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Had the Torah doubled the same word
               twice, we would only lean as above. It used a
               different word to obligate for Refu'ah when Nezek is
               paid.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> It follows that the other damages apply even
          when there is no Nezek. What is the case?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Regarding pain, the Mishnah discusses one who
          burned him with a spit or nail, even on his fingernail,
          where no wound will result;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Refu'ah - he had a wound that was healing, and a
               potent potion changed his skin to the color of
               Tzara'as, and another potion is needed to restore
               the color;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Sheves - he took him to a room and locked him in;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Embarrassment - he spit in his face.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> To evaluate Sheves, we view what he would
          earn like one who guards gourds...
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> To evaluate Sheves, we view what he would
          earn like one who guards gourds;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> This is unfair! When he recovers, he
               will have a better job, such as drawing water or
               running errands!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> No, it is fair. When he recovers, he can only
               guard gourds (e.g. a limb was cut off). He already
               received compensation for the limb.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven cut off Shimon's hand, he pays for
          the hand. Regarding Sheves, we view Shimon like one who
          guards gourds;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he broke Shimon's leg, he pays for the leg.
               Regarding Sheves, we view Shimon like one who guards
               the door;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he blinded Shimon's eye, he pays for the eye.
               Regarding Sheves, we view Shimon like one who
               grinds;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he deafened Shimon, he pays Shimon's full
               value (for now he cannot work at all).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question #1 (Rava):</font></b> If Reuven cut off Shimon's hand,
          broke his leg, blinded his eye, and deafened him, and no
          assessment of Shimon's value was made in between, what is
          the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does it suffice to make one assessment?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we make a separate assessment for each
               damage?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What difference does it make?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> This determines whether or not he must
               pay the pain and embarrassment of each damage.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Granted, he need not pay the Nezek, Refu'ah and
                    Sheves of each. He pays for his full working
                    value as if he killed him (and he pays all
                    costs of Refu'ah until he is healed from
                    everything);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  However, there was pain and embarrassment
                    from each damage. (Perhaps) he must pay each.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question #2 (Rava):</font></b> If you will say that we make only
          one assessment, what if assessments of Shimon's value
          were made in between the damages?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since individual assessments were made, he must
               pay for each?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since he did not yet pay, he pays only once
               for all the damages?
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	This question is unsettled.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>TEMPORARY DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rabah):</font></b> If Reuven damaged Shimon, and later
          Shimon will return to full health, but because he cannot
          work now, he is worth less, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He hit him on the hand. It shriveled, and
               later it will return to normal.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Since it will later return to normal, Reuven is
               exempt (from paying for the hand);
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Or, since Shimon is worth less now, perhaps
               Reuven is liable!
<br>

sjt:
</p><p>
<font><b>2) UNEMPLOYMENT COMPENSATION</b></font><b>
<br>QUESTION:</b> The Mishnah states that the Mazik must pay the Nizak 'Sheves' by compensating him for the time that he was unable to work as a result of the wound. The amount of the compensation of 'Sheves' is based on the wages that the injured person could have earned as 'Shomer Kishu'im' (a gourd-guard).
</p><p>
The Gemara asks why he should receive only the wages of a Shomer Kishu'im if -- when he is healed -- he is able to earn higher wages? He can earn higher wages by drawing water (if his leg broke) or by delivering mail (if his arm broke; Rashi). The Gemara answers that since the payment for the loss of the person's limb was included already in the payment of Nezek, it is appropriate for the Nizak to receive as Sheves only the wages of a Shomer Kishu'im.
</p><p>
Why is it appropriate that the victim should receive only the low wages of a Shomer Kishu'im simply because he received the payment of Nezek? The Nezek takes into account the fact that after he broke his arm he no longer could work at his regular vocation, such as cutting diamonds. However, he still could earn more than a Shomer Kishu'im by delivering mail (if his arm broke, or by drawing water if his leg broke). Therefore, since the illness prevents him from earning the wages of a water-drawer, the Mazik should have to pay him the wages of a water-drawer for the days that he is sick.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH d'Chi Mitpach) explains that when the Gemara says that when the person is healthy he can work as a water-drawer (or a messenger to deliver mail), it means that <i>before</i> he was injured he was fit to do such work. Consequently, the Mazik should be required to pay the Nizak for the loss of wages that the Nizak incurred by not being able to work at his original vocation.
</p><p>
The Gemara answers that the payment of Nezek already takes into account that the Nizak no longer can work at his original vocation, and that all he is fit now to do is guard gourds. Therefore, the additional payment of Sheves covers only the loss of the Nizak which he incurs by not being able to guard gourds during the time that he was recovering from the wound. This is also the way that the <b>RAV ABA'D</b> (the father-in-law of the <b>RA'AVAD</b>) explains the Gemara, as cited by the <b>BA'AL HA'ME'OR</b>. This seems to be the intention of <b>RABEINU CHANANEL</b> as well.
</p><p>
The <b>RASHBA</b> asks that according to this explanation, why does the Gemara give water-drawing and mail-delivering as two examples of vocations of a person who was not injured? A person who has full use of all his limbs can be a diamond-cutter or work at any other high-income profession!
</p><p>
The Rashba answers that the Gemara gives examples of common vocations. According to Tosfos, when a person loses his hand, he is not fit even to deliver mail since mail-carriers use their hands as well.
</p><p>
(b) The Rashba cites the <b>RA'AVAD</b> who explains that even after the person recuperates, he is fit to draw water or to deliver messages, as the simple reading of the Gemara implies. Nevertheless, he is paid Sheves as a Shomer Kishu'im since, normally, a person who is maimed takes a lowly job such as that of a Shomer Kishu'im. The Ra'avad apparently means that if the Nizak -- after he recuperates -- chooses to deliver messages, Beis Din does not assume that this reveals retroactively that he could have delivered messages from the moment he was maimed had he not been bedridden due to his wounds (and therefore the Mazik must pay, as Sheves, the wages of a mail-deliverer). Rather, Beis Din assumes that at the moment he was maimed he probably would have become a Shomer Kishu'im, and his 'promotion' to the job of delivering messages is viewed as an increase in salary. Therefore, the Sheves is assessed only as the wages of a Shomer Kishu'im, since Beis Din assumes that this is what the Nizak would have been doing had he been well and not ill.
</p><p>
This may also be the intention of <b>RASHI</b> (DH Azil, and DH Midas ha'Din, as the printed version of Rashi reads, without the emendations of the Maharshal and the Bach), as the <b>MAHARSHA</b> implies.
</p><p>
(c) The <b>BA'AL HA'ME'OR</b> explains that the Mazik does not have to pay Sheves for any vocation other than for the wages the Nizak was earning <i>until</i> the time of the injury. Even if the Nizak can work as a water-drawer after the injury, this is not a vocation that he chose for himself before the injury, and therefore the Mazik does not have to pay for the losses incurred by the Nizak by not being able to draw water while he is ill. The Mazik must pay only for the losses incurred by the Nizak's inability to cut diamonds (if he was a diamond cutter), but this was included in the payment of Nezek (which takes into account the fact that the Nizak can no longer cut diamonds). Why, then, does the Mazik pay Sheves even for the wages of a Shomer Kishu'im if the Nizak did not have that vocation before he was injured?
</p><p>
The Ba'al ha'Me'or answers that in theory it was possible for the Nizak to have been a Shomer Kishu'im <i>at the same time</i> he was a diamond cutter. Therefore, that job is viewed as a possible source of income of the Nizak until he was injured. In order to make up for that lost source of income, the Mazik pays Sheves, since the wages the Nizak could have earned by watching gourds is not included in the payment of Nezek.
</p><p>
The logic of the Ba'al ha'Me'or seems to be as follows. The loss of income suffered by the Nizak because he could have drawn water had he not been bedridden is considered an indirect effect of the damage, since the Nizak was not a water-drawer at the time at which the Mazik caused him to become sick. The only loss which the Mazik directly caused the Nizak is that he stopped he from earning money as a diamond cutter (or from whatever vocation he had before the injury). If the Torah teaches that an extra payment of Sheves is collected for the Nizak, that Chidush at least should be limited to an occupation which the Mazik directly stopped the Nizak from doing. Therefore, Beis Din looks for the type of occupation which the Nizak could have done (at least potentially), together with his normal work, before he was injured. This is what the Mazik directly caused the Nizak to lose, aside from the compensation of Nezek that he must pay. (Of course, if the Nizak -- after he recovers from his injury -- cannot even be a Shomer Kishu'im (for example, he was blinded), the Mazik does not have to pay him the Sheves of a Shomer Kishu'im but rather the Sheves for work that a blind person could do, which a healthy person can do at the same time as his normal work, as Rava says later on the Daf.)
</p><p>
(d) <b>TOSFOS RABEINU PERETZ</b> writes that the main payment of the Mazik is <i>Nezek</i>, and the other payments are only 'extra penalties.' Therefore, it is enough to make the Mazik pay Sheves as if the Nizak was a Shomer Kishu'im; he does not have to pay according to what the Nizak is actually able to do after he recovers.
</p><p>
The logic of Tosfos Rabeinu Peretz is similar to that of the Ba'al ha'Me'or. The only 'true' payment the Nizak deserves is Nezek (and Boshes), just as a person receives only Nezek when he is damaged by someone's animal. With regard to all of the other payments, to a certain degree the Mazik is considered only an indirect cause of loss to the Nizak. Nevertheless, the Torah requires that when a person causes bodily damage to another, he must pay all of the five payments as added penalties. Since those payments are only added penalties, Beis Din is lenient with the payment of Sheves and requires only that the Mazik pay the Nizak as a Shomer Kishu'im.
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>TEMPORARY DAMAGE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> If one strikes his father or
          mother and does not make a wound, or strikes a person on
          Yom Kipur, he is liable for all damages.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case in which he does not
               make a wound?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He hit him on the hand, and later it will
               return to normal. The Mishnah obligates for all
               damages.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> No. The case is, he deafened him without
          making a wound.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> Rabah taught that one who deafens his father
          is killed, for one cannot deafen someone without making a
          wound. Surely, a drop of blood fell into the ear!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> No, the case is, he shaved him.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> His hair will grow back. The damage is only
          temporary. We can still settle our question from the
          Mishnah!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> No, the case is, Reuven anointed Shimon with
          Nasa (a potion that permanently stops hair from growing).
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	The Mishnah obligates for all damages. We explain how
          all the other damages apply:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Pain - he has sores in ridges on his head (and
               the potion aggravated them).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Refu'ah - he must heal the sores;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Sheves - he used to get paid for jesting, i.e.
               shaking his head while dancing, and the sores
               prevent him from doing so.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Embarrassment - baldness is the ultimate
               embarrassment!
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Abaye and Rava argued about the law that Rabah was
          unsure about.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Abaye):</font></b> If Reuven hit Shimon on the hand, and later it
          will return to normal, he pays Nezek and Sheves;
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rava):</font></b> He pays only Sheves.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Abaye):</font></b> If Reuven cut off the hand of Shimon's
          (Yisrael) slave, he pays Nezek to the slave, and Sheves
          to Shimon;
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rava):</font></b> The slave gets the entire payment. We buy land
          with the money, and Shimon gets the produce (until the
          slave goes free).
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	If the slave was damaged, and this affects only the
          slave, not the master, obviously, the slave gets the
          entire payment.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He cut off the end of the ear or
               nostrils.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	If the slave was damaged, and this affects only the
          master, but not the slave, Abaye and Rava argue about
          this (as above).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>COMPENSATION FOR EMBARRASSMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We evaluate embarrassment according to the
          one who embarrassed and the one who was embarrassed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Who is the Tana of the Mishnah?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b>  Our Mishnah is like R. Shimon:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> Rich and poor people (who
               were embarrassed) are judged equally, as if they
               were rich people who lost their property, for all
               descend from Avraham, Yitzchak and Yakov.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, a rich person is judged
               according to his wealth. A poor person is judged
               according to his poverty;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon says, a rich person is judged like a
               rich person who lost his property. A poor person is 
               judged like the poorest man there is.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Our Mishnah is unlike R. Meir, who says that rich
                    and poor are judged equally;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Our Mishnah obligates for embarrassing a
                    blind person. It is unlike R. Yehudah, who says
                    that Boshes does not apply to a blind person.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Our Mishnah is like R. Yehudah. He says that
          a blind person does not pay embarrassment, but he can
          receive it!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Reisha):</font></b> One who embarrasses a sleeping
          person is liable, but a sleeping person who embarrasses
          is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It does not exempt a blind person who
               embarrasses. This implies that he can receive and
               pay for embarrassment!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Conclusion:</font></b> We must answer as Answer #1.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Who is the Tana of the following Beraisa?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one intended to embarrass a Katan
               (one of small wealth) and embarrassed a Gadol (rich
               person), he pays the Gadol what is proper for a
               Katan;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If one intended to embarrass a slave and
               embarrassed a free person, he pays the free person
               what is proper for embarrassing a slave
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> This is not like R. Meir,
               R. Yehudah or R. Shimon!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It is not like R. Meir. He judges rich and poor
                    people equally!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  It is not like R. Yehudah, who says that
                    Boshes does not apply to a blind person.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  It is not like R. Shimon. He holds that one
                    who intended to embarrass Reuven and
                    embarrassed Shimon is exempt!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'>  Question:</font></b> What is R. Shimon's reason?
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer:</font></b> He learns from murder. One who intended
                    to kill Reuven and killed Shimon is exempt -
                    'he waited in ambush for him and rose against
                    him.' He is liable only if he intended for his
                    victim;
<br>             <b>  <b><font color='darkgreen'>vi. </font></b></b>  The same applies to embarrassment - 'she
                    sent her hand and grabbed his shameful place' -
                    she is liable only if she intended for him.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Really, the Beraisa is like R. Yehudah. He
          says that a slave does not receive (payment for)
          embarrassment, but we can evaluate how much he would want
          to receive to suffer such an indignity (and this is paid
          to the free person who was embarrassed).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, it is like R. Meir. 'Katan' refers
          to a minor, and Gadol refers to an adult.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Do minors really suffer (and therefore
          receive) embarrassment?!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Yes, like Rav Papa taught (elsewhere).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> When people mention the embarrassment
               and shame him, he is pained
<br>
<br>

sjt:
<font><b>1) A SON WHO INJURES HIS FATHER IN A WAY THAT OBLIGATES HIM TO PAY THE DAMAGE PAYMENTS</b></font><b>
<br>QUESTION:</b> The Gemara attempts to prove from the Mishnah later (87a) that one must pay Nezek to his victim when he causes a temporary wound which will heal completely. The Mishnah discusses a person who hit his parents but did not make an open wound. The Mishnah rules that such a person is exempt from a Chiyuv Misah and must therefore pay all five of the damage payments. The Gemara reasons that the only case of damage that one might have caused without making an open wound, which would still make him obligated to pay, is a case in which the son hit his parent and caused a bruise that did not bleed externally, and that will eventually heal completely.
</p><p>
Why does the Gemara understand that this must be the case of the Mishnah? Why does the Gemara not explain that the Mishnah refers to a case of permanent damage, such as where the son hit the father on the hand in a way that caused it to become partially paralyzed ('Tzamsah Yado') in a manner that will not heal. In such a case the son would not be Chayav Misah since the father lost no blood, but he would be obligated to pay the damage payments since he caused permanent damage to his father! (<b>RASHBA</b>)
</p><p>
<b>ANSWER:</b> The <b>RASHBA</b> answers that in any case where the father suffered permanent damage, it is assumed that there must have been some internal bleeding that caused it, so the son is Chayav Misah. The Rashba's reasoning is based on what the Gemara says about a son who causes his father to become deaf. The Gemara says that it is impossible for the father to become permanently deaf without internal bleeding in his ear, and thus the son is Chayav Misah for his act. The Rashba understands that the same applies in any case of permanent damage.
</p><p>
This also appears to be the intention of <b>RASHI</b> (DH Lav).
</p><p>


<font><b>2) UNEMPLOYMENT COMPENSATION FOR ILLNESS CAUSED BY A TEMPORARY INJURY</b></font><b>
<br>QUESTION:</b> Abaye and Rava argue about the payment of Nezek in a case of a person who causes temporary damage to the body of another person. Abaye rules that one pays Nezek and Sheves, as in any case of damage done to someone else.
</p><p>
Rava rules that no Nezek is paid in such a case due to the temporary nature of the damage. The lack of Nezek payment directly affects the amount of Sheves that is paid. Since no Nezek is paid, the payment of Sheves cannot be based on the wages of a Shomer Kishu'im (gourd-guard), since that calculation applies only when the victim is already being compensated for the loss of the use of his hand. Consequently, the Sheves is paid on a daily basis, based on the wages that the victim could have earned on that day through his regular vocation had he not been ill.
</p><p>
Why, according to Abaye, is the Sheves calculated according to the wages of a Shomer Kishu'im? After all, <b>RASHI</b> (DH d'Va'i Achuyei) explains that if the damage does not prevent the victim from returning to his previous occupation once he has recovered, the payment of Sheves is not determined by the wages of a Shomer Kishu'im but by the wages that the victim will receive after his recovery. A person who suffered temporary bodily damage will certainly be able to do the same Melachah upon recovery as he did before the injury. Why, then, does Abaye not agree with Rava's ruling that the Sheves is determined based on the wages that he would normally earn? (See <b>MAHARSHA</b> in Mahadura Basra.)
</p><p>
<b>ANSWER:</b> In the case which Rashi discusses (in which a person damages someone by causing him to become permanently bald), the Nezek payment that the Mazik pays is not meant to compensate for the temporary loss of work as a jester resulting from the sores on the victim's bald head. Rather, the payment of Nezek is meant to compensate for the victim's depreciation in value due to his unsightliness (see Rashi, DH Nasha). Therefore, the Sheves payment must take into account the entire loss due to his lack of work during the time until his sores have healed. However, in the case in which a person temporarily disables another person's hand, there is no depreciation due to unsightliness. The Nezek which Abaye obligates the Mazik to pay is a compensation for the fact that the victim cannot work with his hand for a few weeks. Since the payment of Nezek already accounts for the loss of the victim's normal use of his hand, the payment of Sheves needs to cover only the loss that the victim would have incurred had he been a Shomer Kishu'im during that time.
</p><p>
However, if it is true that the payment of Nezek (according to Abaye) takes into account the depreciation due to the victim's temporary inability to work, then why does Rava disagree with Abaye? Since there is a clear depreciation in value due to the temporary disability, it should be paid as Nezek, like any other depreciation in the value of the victim!
</p><p>
The <b>TOSFOS RABEINU PERETZ</b> asks this question. He answers that the depreciation that results from the fact that people will pay less for him (as an Eved) since he is temporarily disabled is <i>greater</i> than the actual loss the victim suffers from being unable to work during the days of his disability. The reason for this is that not every potential purchaser in the market can evaluate clearly whether the disability is indeed temporary, and, if it <i>is</i> temporary, how long it will last. Therefore, a purchaser would not offer to purchase the slave for his true value, but only for less than his true value. Consequently, Rava says that it is not fair for the Mazik to have to pay Nezek based on the victim's lower market value, and it suffices to pay the daily Sheves for the duration of time that the victim actually cannot work. This is also the intention of <b>TOSFOS</b> (85b, DH Sheves).
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>EMBARRASSMENT DEPENDS ON THE VICTIM</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 27b (Rav Chisda):</font></b> The custom is, one who kicks
               someone with his knee must pay three Sela'im. For
               kicking with the foot, he pays five Sela'im...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 86a (Mishnah):</font></b> We evaluate embarrassment according
               to the one who embarrassed and the one who was
               embarrassed.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> Rich and poor people (who were
               embarrassed) are judged equally, as if they were
               rich people who lost their property, for all descend
               from Avraham, Yitzchak and Yakov.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yehudah says, a rich person is judged according
               to his wealth. A poor person is judged according to
               his poverty;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Shimon says, a rich person is judged like a rich
               person who lost his property. A poor person is
               judged like the poorest man there is.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Our Mishnah is unlike R. Meir, who judges rich and
               poor equally. It is unlike R. Yehudah, for the
               (Seifa (86b) of the) Mishnah obligates one who
               embarrasses a blind person, and R. Yehudah exempts.
               Rather, it is like R. Shimon.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 90a (Mishnah):</font></b> If one was Toke'a a man (hit him near
               the ear; others explain, blew a Shofar in his ear),
               he pays one Sela;
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> R. Yehudah says, he pays a Maneh (100 Zuz).
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> One pays 400 Zuz if he slapped someone with the back
               of the hand, tugged on his ear... the rule is, the
               payment is according to his prestige.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> R. Akiva says, we view even the poorest Bnei Yisrael
               as if they were rich people who lost their money,
               for they descend from Avraham, Yitzchak and Yakov.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> A case occurred in which Levi was Toke'a David. R.
               Yehudah Nesi'ah obligated him to pay a Maneh Tzuri
               (of pure silver).
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 36b:</font></b> A case of Toke'a occurred, and Rav Tuvya bar
               Masnah asked if the Mishnah means a Sela Tzuri, or a
               common Sela (seven eighths copper). Rav Yosef
               answered that it is the latter. Rav Huna ruled
               similarly in another case.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> 91a - Question:</font></b> The first Tana says that he pays
               according to his prestige. Is this a leniency (400
               Zuz is only for the most distinguished people), or a
               stringency (400 is for the lowliest people)?
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer:</font></b> R. Akiva says that we view even the poorest
               Yisrael like a rich person who lost his money. This
               implies that the first Tana teaches a leniency.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (30b and 8:7):</font></b> We evaluate
               embarrassment according to the one who embarrassed
               and the one who was embarrassed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> We established the Mishnah like R. Shimon.
               This connotes the Halachah follows R. Shimon. Why
               did the Rif omit this? It seems that he relies on
               what he wrote later (see (3) below), that the first
               Tana views a rich person like a rich person who lost
               his property, and the Shi'ur is 400, like R. Shimon.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Gra CM 420:31):</font></b> The rule is, the
                    Halachah follows R. Yehudah against R. Meir or
                    R. Shimon (Eruvin 46b). The Gemara established
                    the Mishnah like R. Shimon only because it
                    obligates one who embarrassed a blind person.
                    Regarding how much a rich or poor person
                    receives, the connotation of the Mishnah is
                    like R. Yehudah. This is why the Rif did not
                    cite R. Shimon. However, the Rosh's other proof
                    (see (3) below) is solid.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rif and Rosh (32b and 8:15):</font></b> The Yerushalmi says
               that one who embarrasses a Chacham pays the full
               amount. A man got angry at R. Yehudah bar Chanina,
               and Reish Lakish fined him a Litra of gold. The
               payment is according to his prestige. R. Akiva
               taught that we view even the poorest Bnei Yisrael as
               if they were rich people who lost their money. This
               implies that the first Tana teaches a leniency, and
               less distinguished people receive less than 400.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Yam Shel Shlomo 8:16):</font></b> The Rosh
                    misunderstood the Rif. Perhaps the first Tana
                    holds that 400 is for the most esteemed person,
                    and less esteemed people receive less, and it
                    is like R. Yehudah! The Mishnah (85b) says that
                    Boshes is according to the person's honor. R.
                    Yehudah agrees with this, just the Seifa proves
                    that he did not teach the Mishnah. Therefore,
                    we follow R. Yehudah against R. Shimon. No one,
                    even the Tur, is lenient to view a rich person
                    like a rich person who lost his property.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 3:1):</font></b> Embarrassment
               depends on the one who embarrassed and the one who
               was embarrassed. Being embarrassed by a lowly person
               is unlike being embarrassed by a great person. The
               former is greater.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Lechem Mishneh):</font></b> The Rosh said that
                    since we established the Mishnah to be like R.
                    Shimon, this connotes the Halachah follows R.
                    Shimon. It seems that the Rambam rules like R.
                    Yehudah. What is his reason?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> Perhaps the Rambam holds like the Yam
                    Shel Shlomo above.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (9):</font></b> For kicking with the knee, one pays
               three Sela'im. For Toke'a, one pays a Sela. One pays
               400 for slapping with the back of the hand.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (11):</font></b> This is for a respected person. A
               disgraced person who is not particular about such
               matters receives only what the judges deem proper,
               for such people are not concerned for their shame.
               They disgrace themselves through jesting, or in
               order to get a Perutah from scoffers who jest with
               them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The fines in the Mishnah are for
                    a respected person. (A lowly person receives
                    less). The Gemara didn't say to whom Rav
                    Chisda's fines apply. The Rambam says that also
                    they are for dignified people. This is right.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Tosfos (27b DH Harei):</font></b> Some say that Rav
                    Chisda's fines are for the poorest Oni. The Ri
                    says that they are for the greatest Yisrael,
                    like the fines in the Mishnah (90a), which we
                    say are for the greatest Yisrael (91a).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rosh (10):</font></b> To minimize the argument, R. Tam says
               that the first Tana obligates a Sela for (being
               Toke'a) an Oni, and R. Yehudah obligates a Maneh for
               the richest Yisrael. Even though R. Yehudah Nesi'ah
               obligated him a Maneh for Toke'a, we follow the
               Amora'im (36b) who obligated only a common Sela.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 420:24):</font></b> Embarrassment is based
               on the one who embarrassed and the one who was
               embarrassed. Being embarrassed by a lowly person is
               unlike being embarrassed by a great person. The
               former is greater.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Similarly, the embarrassment of a more
               dignified person is greater. The embarrassment of a
               Kohen is greater than that of someone else.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (41):</font></b> Chachamim fixed an amount for
               some blows.... For Toke'a, one pays a Sela. For
               slapping with the back of the hand, he pays 100
               Sela'im.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (43):</font></b> This refers to an honorable
               person. A lowly person who is not particular about
               these things receives like the judges deem proper.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>EVALUATING EMBARRASSMENT AND BLEMISH </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>SPECIAL CASES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One is liable for embarrassing a blind,
          naked or sleeping person;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A sleeping person who embarrassed someone is
               exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven fell from the roof and damaged and
          embarrassed, he is liable for the damage and exempt for
          the embarrassment, unless he intended to embarrass.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> Reuven embarrassed Shimon when
          Shimon was naked (or in the bathhouse), Reuven is liable,
          but not as much as one who embarrasses a clothed person
          (or in the market).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Does a naked person really feel
          embarrassment?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> The case is, a wind lifted up
          Shimon's garment. Reuven lifted it higher (exposing more
          of Shimon).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Does one really feel embarrassment in the
          bathhouse? (Everyone is naked there!)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> He embarrassed him by the riverbank.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (R. Aba bar Mamal):</font></b> If Reuven embarrassed
          Shimon when Shimon was sleeping; and Shimon (never woke
          up and) died, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the basis of the question?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Understanding #1 (Rav Zvid):</font></b> If one pays because
               the victim feels shame, if so, (since Shimon never
               found out,) Reuven is exempt;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If one pays because he disgraced the victim,
               Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Beraisa - R. Meir):</font></b> A Cheresh (deaf-mute) or
          child receives payment for embarrassment. A lunatic does
          not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one pays due to disgrace, this explains why a
               child collects;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> But if it is because the victim feels
               shame, a child does not feel shame!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Counter-question:</font></b> If one pays because of
               disgrace, even a lunatic is disgraced!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Being a lunatic is the greatest disgrace.
               He cannot be disgraced more.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Suggestion:</font></b> The original answer remains. Since a
               child collects, this shows that one pays for the
               disgrace.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection:</font></b> A child suffers shame like Rav Papa taught;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> When people mention the embarrassment
               and shame him, he is pained.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Understanding #2 (of question (h) - Rav Papa):</font></b> If
               one pays because the victim feels shame, (since
               Shimon never found out,) Reuven is exempt;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If one pays because the victim's family is
               embarrassed, Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> A Cheresh or child receives payment
          for embarrassment. A lunatic does not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one pays because the victim's family is 
               embarrassed, this explains why a child collects;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> But if it is because the victim feels
               shame, a child does not feel shame!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Counter-question:</font></b> If one pays because the
               victim's family is embarrassed. even a lunatic's
               family is disgraced!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Having a lunatic in the family is the
               greatest disgrace. The family cannot be embarrassed
               more.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Suggestion:</font></b> The original answer remains. Since a
               child collects, this shows that one pays for the
               family's embarrassment.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection (Rav Papa):</font></b> When people mention the
          embarrassment and shame him, he is pained.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Support (Beraisa - Rebbi):</font></b> A Cheresh receives
          embarrassment. A lunatic does not. Sometimes a child
          receives, and sometimes he does not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A child who is pained when people mention the
               embarrassment and shame him, he collects.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>A BLIND PERSON WHO EMBARRASSES ANOTHER PERSON</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One who embarrasses a blind person...
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	The Mishnah (does not exempt a blind person who
          embarrasses. This) is unlike R. Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1 - R. Yehudah):</font></b> A blind person does
               not pay for embarrassment. Also, he is exempt from
               exile, lashes and capital punishment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is R. Yehudah's reason?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer - part 1 (regarding embarrassment):</font></b> He
               learns a Gezeirah Shavah 'Einecha-Einecha' from
               Zomemim witnesses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Just like a blind person never pays for being an
                    Ed Zomem (since he cannot be a witness), he
                    never pays for embarrassment.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer - part 2 (regarding exile - Beraisa - R.
               Yehudah):</font></b> 'Without seeing' excludes a blind person;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Meir says, this includes a blind person.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Question:</font></b> What is R. Yehudah's reason?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Answer:</font></b> 'Who will enter a forest when his
                    fellowman is there' includes a blind person.
                    'Without seeing' excludes a blind person.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b>  R. Meir explains that 'without knowing'
                    also excludes a blind person. Two exclusions
                    for the same matter come to include.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b></b> R. Yehudah uses 'without knowing' to exclude one
                    who intended (to kill an animal, and killed a
                    person).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Answer - part 3 (regarding capital punishment):
               He learns a Gezeirah Shavah 'Rotze'ach-Rotze'ach'
               from exile.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer - part 4 (regarding lashes):</font></b> He learns a
               Gezeirah Shavah 'Rasha-Rasha' from exile.
<br>

<p>

sjt:
</p><p>
<font><b>3) A BLIND PERSON'S OBLIGATION TO PAY FOR DAMAGES</b></font><b>
<br>QUESTION:</b> Rebbi Yehudah rules that a blind person who embarrassed another person is exempt from the payment of Boshes. He derives this from a Gezeirah Shavah which compares the payment of Boshes to the punishment of Edim Zomemim. <b>RASHI</b> explains that a blind person can never be punished as an Ed Zomem, since he cannot testify about something he did not see.
</p><p>
<b>REBBI AKIVA EIGER</b> (in Gilyon ha'Shas) asks, why can a blind person not be punished as an Ed Zomem for testifying about what he saw <i>before</i> he became blind? In such a case, a blind person's testimony should be accepted, and thus he should be able to become an Ed Zomem. Since the Torah compares the payment of Boshes to the punishment of Edim Zomemim, a blind person should also be liable for the payment of Boshes.
</p><p>
<b>ANSWER:</b> Perhaps Rashi understands that according to Rebbi Yehudah, if a person embarrasses his friend and <i>afterwards</i> becomes blind, he indeed is obligated to pay Boshes. Hence, the comparison to Ed Zomem is correct in both cases. A person cannot testify about something that happened while he was blind (and become an Ed Zomem for such testimony); similarly, a person cannot be obligated to pay Boshes for embarrassing someone while he was blind. Moreover, just as a person <i>can</i> become an Ed Zomem for testifying about an act he witnessed before he became blind, so, too, a person can become obligated to pay Boshes for an act he committed before he became blind.
</p><p>
Rebbi Akiva Eiger may have found this answer unsatisfactory in light of the Gemara later (beginning of 87a). The Gemara teaches that according to Rebbi Yehudah, a blind person is exempt not only from Boshes but from all of the payments mentioned in the Torah, and he is not obligated to observe any of the Mitzvos of the Torah. The logic of this ruling seems to be that Rebbi Yehudah compares a blind person to a Cheresh or Shoteh to some extent. Hence, if a person is blind at the time that he appears before the court, the court should not be able to obligate him to pay even for actions he performed before he became blind, just as Beis Din cannot obligate a Cheresh or Shoteh for acts he performed before he became a Cheresh or Shoteh. Thus, he would not be obligated to pay Boshes even for embarrassing someone before he became blind.
</p><p>
Rashi, on the other hand, perhaps follows the view of <b>TOSFOS</b>. Tosfos (87a, DH v'Chen) asks why Rebbi Yehudah must derive from a Gezeirah Shavah that a blind person does not pay Boshes if he has another source which teaches that a blind person pays <i>no</i> payments. Tosfos answers that Rebbi Yehudah originally exempted a blind person only from Boshes, based on the Gezeirah Shavah. Later, he found another verse that exempts a blind person from all payments, and he no longer derived the exemption of Boshes from the Gezeirah Shavah but from the second verse, along with the exemption from all other payments.
</p><p>
According to this answer of Tosfos, the exemptions derived from the two verses are not identical. The first verse teaches that a blind person is exempt only from Boshes payments that are incurred as a result of an act that the blind person did after he became blind. This is logical, since this verse differentiates between a blind person and other people only with regard to Boshes. The unique exemption from Boshes is probably because a person suffers less embarrassment from an act done by a person who cannot see him and is not fully aware of the damage that he is causing. Therefore, it is logical to assume that the factor that determines whether or not a blind person pays Boshes is whether he was blind at the time that he caused the damage. In contrast, when Rebbi Yehudah changed his mind and compared a blind person to a Cheresh or Shoteh, he exempted a blind person from <i>all</i> payments, regardless of when they were incurred. (M. Kornfeld)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LAWS THAT DO NOT APPLY TO A BLIND PERSON</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa #2 - R. Yehudah):</font></b> A blind person does not pay
          for embarrassment. Also, he is exempt from all monetary
          laws of the Torah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is his reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> 'The Tzibur will judge between the murderer and
          the avenger (the victim's relative) according to these
          Mishpatim (monetary laws)' - only those who are liable
          for murder are liable for Mishpatim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa #3 - R. Yehudah):</font></b> A blind person does not pay
          for embarrassment. Also, he is exempt from all Mitzvos of
          the Torah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is his reason?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> 'These are the Mitzvos, statutes and Mishpatim'
          - only those who are liable for Mishpatim are commanded
          about Mitzvos and statutes.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rav Yosef (who was blind):</font></b> At first, I hoped to hear
          that the Halachah follows R. Yehudah (that a blind person
          is exempt from Mitzvos).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> He would get a greater reward for doing
          Mitzvos, even though he is exempt.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Retraction (Rav Yosef):</font></b> After hearing R. Chanina's
          teaching, I hope to hear that the Halachah does not
          follow R. Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chanina):</font></b> One who is commanded and fulfills
               gets a greater reward than one who is not commanded
               and fulfills.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the Halachah were unlike R. Yehudah, Rav Yosef
               would get a greater reward for the Mitzvos, because
               he is commanded.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>GENERAL RULES OF PAYING FOR DAMAGES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The Torah was stringent about a man who
          damages, to obligate him to pay Nezek, pain, medical
          expenses, Sheves, and embarrassment, and compensation for
          a fetus;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An ox only pays Nezek, it is exempt from
               compensation for a fetus.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	One who strikes his father or mother and does not make
          a wound, or one who strikes a person on Yom Kipur is
          liable for all damages.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	One who strikes a Yisrael slave is liable for all
          damages, except for Sheves if it is his own slave;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	One who strikes another's Kena'ani slave is liable for
          all damages;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Yehudah says, embarrassment does not apply to
          slaves.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	One loses from encounters with a Cheresh, lunatic or
          child. One who damages any of them is liable. If any of
          them damaged someone, he is exempt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	One loses from encounters with a slave or (married)
          woman. One who damages either of them is liable. If
          either of them damaged someone, he or she is exempt now,
          but pays later;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the slave is freed or the woman is divorced,
               then he or she is liable to pay.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	One who strikes his father or mother and makes a wound,
          or one who strikes a person on Shabbos is exempt from all
          damages because he is liable to die.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	One who strikes his Kena'ani slave is exempt from all
          damages.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HITTING CHILDREN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara - R. Elazar) Question:</font></b> If Reuven hit Shimon's
          daughter (a minor), does he pay to her or to Shimon?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Torah gave Shevach Ne'urim (what a girl earns
               or receives (e.g. for Kidushin) throughout the
               period that she is a minor or Na'arah) to the
               father. Perhaps this also applies to damages;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> Why should this be?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer:</font></b> Her value decreased.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps the Torah gave to the father only
               Shevach Ne'urim such as Kidushin money, for a
               repulsive person would pay Shimon money to let him
               marry Shimon's daughter. However, Shimon has no
               Reshus (jurisdiction) over wounding his own
               daughter, so money paid for damages is the father's!
<br>
<br>

sjt:
<font><b>1) A BLIND PERSON'S OBLIGATION TO OBSERVE THE TORAH</b></font><b>
<br>OPINIONS:</b> Rebbi Yehudah exempts a blind person from all of the Mitzvos in the Torah. Does this imply that a blind person may do whatever he pleases and is considered like a Shoteh with regard to the Mitzvos?
</p><p>
(a) <b>REBBI AKIVA EIGER</b> and the <b>TUREI EVEN</b> (Megilah 24a, DH Eino) assert that a blind person is obligated to observe all Mitzvos Lo Ta'aseh, even if he is exempt from all Mitzvos Aseh. They prove this from <b>TOSFOS</b> here (DH v'Chen, #2) and in Megilah, who states that a blind person is Chayav mid'Rabanan to observe the Mitzvos, and he therefore may recite blessings for the Mitzvos that he performs. (This is why Rav Yosef was not saddened that he could not recite blessings when he heard that his blindness exempted him from Mitzvos, because he <i>could</i> recite blessings even though he was blind.) They reason as follows. The Gemara in Shabbos (23a) explains that when one performs a Mitzvah d'Rabanan, he recites a blessing with the words, 'Asher Kideshanu b'Mitzvosav v'Tzivanu,' because of the Mitzvah d'Oraisa of 'Lo Sasur,' which obligates a person mid'Oraisa to follow the dictates of the Rabanan. If a blind person is exempt from Mitzvos Lo Ta'aseh, why should he be able to say 'Asher Kideshanu b'Mitzvosav v'Tzivanu' for a Mitzvah d'Rabanan? The requirement to observe the Mitzvos d'Rabanan is based on the Lo Ta'aseh of 'Lo Sasur'! It must be that a blind person is obligated to observe 'Lo Sasur' and all Mitzvos Lo Ta'aseh, and Rebbi Yehudah exempts a blind person only from Mitzvos Aseh.
</p><p>
This is also the opinion of the <b>PRI MEGADIM</b> (Introduction to OC 3:29), who cites additional proof from the fact that Rebbi Yehudah requires a verse to exempt a blind person from Misah and Galus when he kills another Jew. If a blind person would be excluded from the prohibition of killing, he obviously would be exempt from punishment! This is also the opinion of the <b>SHE'EILAS YA'AVETZ</b> (1:75), the <b>CHIDA</b> in <b>MACHZIK BERACHAH</b> (OC 53:5), and the <b>MAHARATZ CHAYOS</b> here.
</p><p>
Tosfos states that the Rabanan obligated a blind person to observe the Mitzvos so that he would not be like a Nochri. This reasoning implies that a blind person, mid'Oraisa, is exempt even from the Mitzvos Lo Ta'aseh; otherwise, it could not be said that he would be like a Nochri. However, as the Pri Megadim writes, Tosfos may mean simply that a Jew needs to perform <i>positive actions</i> (Mitzvos Aseh) in order to define him as a Jew, since a lack of action (observing the Mitzvos Lo Ta'aseh) does not give him a clear Jewish identity.
</p><p>
(b) The <b>NODA B'YEHUDAH</b> (OC 2:112) argues with the Pri Megadim and writes that according to Rebbi Yehudah, a blind person is exempt even from Mitzvos Lo Ta'aseh. The <b>MINCHAS CHINUCH</b> (2:25) points out that this is the opinion of the <b>RID</b> in <b>SEFER HA'MACHRIA</b> (#78), and the <b>ROSH</b> in Kidushin (1:49, depending on the Girsa of the Rosh there). How will the Noda b'Yehudah, Rid, and Rosh refute the proofs of the Acharonim cited above?
</p><p>
Rebbi Akiva Eiger's proof from the fact that a blind person may say 'v'Tzivanu' points to another, more basic question: If the blind person is not obligated to observe the Mitzvah of 'Lo Sasur,' what obligates him to listen to what the Rabanan decree in the first place? This question is similar to the question that the Acharonim ask on the <b>RAMBAN</b> in Sefer ha'Mitzvos (Shoresh Rishon). The Ramban (who disagrees with the Rambam there) writes that 'Lo Sasur' does not imply a Mitzvah d'Oraisa to observe every Mitzvah d'Rabanan. According to the Ramban, what <i>does</i> obligate a person to listen to the Rabanan? The Acharonim (see <b>KUNTRESEI SHI'URIM</b>, Bava Metzia 12:6) pose similar questions in other cases: How can the Rabanan obligate a minor to observe the Mitzvos (according to <b>TOSFOS</b> to Berachos 48a, DH Ad; see <b>RASHI</b> there (DH Ad), and <b>RAMBAN</b> (Milchamos) to Berachos 20b), and how can the Rabanan obligate a Nochri to keep certain Mitzvos (see <b>LECHEM MISHNEH</b>, Hilchos Melachim 10:9)?
</p><p>
The <b>KOVETZ SHI'URIM</b> (Divrei Sofrim 1:15-18, and in Kovetz He'oros 16:18) answers that there is a principle that when it is clear what the will of Hash-m is, one is required to act on that will even if it is not written explicitly in the Torah. Since we know that the Rabanan are able to determine the will of Hash-m, we are required to accept what they decree based on what they understand to be the will of Hash-m, even if the Torah does not contain an explicit Mitzvah to follow their decrees. The same applies to a minor. Even though he is not obligated to keep the Mitzvos, he still must listen to the Rabanan since they are able to ascertain what is Hashem's will. The same may be suggested with regard to a blind person. He is obligated to listen to the Rabanan even if he is not obligated to observe the Mitzvos of the Torah. This is why he may say 'v'Tzivanu' in his blessing when he performs a Mitzvah d'Rabanan. (<b>DEVAR YAKOV</b> 87:7)
</p><p>
<b>RAV SHLOMO ZALMAN AUERBACH</b> zt'l (Minchas Shlomo 2:51:1) answers that the Lav of 'Lo Sasur' applies to every living person of sound mind, since it is a general statement addressed to the inhabitants of the entire world. Therefore, it applies to a blind person, minor, and a Nochri, even if they are not obligated to observe any of the other Mitzvos of the Torah.
</p><p>
With regard to the Pri Megadim's proof from the verse that exempts a blind person who murders from a Chiyuv Misah and Galus, the <b>MISHNAS CHACHAMIM</b> (#2) and the <b>MINCHAS CHINUCH</b> (2:25) write that a blind Jew cannot be obligated in fewer Mitzvos than a Nochri. Therefore, a blind person is obligated to observe the prohibition of Retzichah even if he is exempt from Mitzvos Lo Ta'aseh. (The <b>IMREI HA'TZVI</b> proves this from Lemech (Bereishis 4:23-24) who was held responsible for killing his son even though he was blind.)
</p><p>
(c) <b>HAGA'ON RAV YISRAEL ZEV GUSTMAN</b> zt'l (in Kuntresei Shi'urim) disagrees with the position of the Minchas Chinuch that a blind person is obligated at least in the Mitzvos of Bnei Noach. He points out that the <b>RAMBAM</b> in Perush ha'Mishnayos (Chulin, beginning of chapter seven) writes that the obligation of all Jews to perform Mitzvos is not due to what Hash-m told Noach or Avraham Avinu. Rather, the general obligation to perform the Mitzvos comes from Hashem's command at Har Sinai to perform them. Hence, a blind Jew cannot be bound by the seven Mitzvos of Bnei Noach, whose obligation stems from Hashem's commandments to Noach long before Har Sinai.
</p><p>
According to Rav Gustman's position, the Pri Megadim's proof remains difficult; why is a verse necessary to exempt a blind person from punishment for murder? Some suggest a simple answer to this question. In truth, the verse that exempts a blind person is <i>not</i> necessary. Once Rebbi Yehudah found a verse to exempt a blind person from all of the Mitzvos, he no longer needed to derive the exemption from this verse. It was only <i>before</i> Rebbi Yehudah concluded that a blind person is exempt from all Mitzvos that he needed this verse to exempt a blind person from Misah or Galus. This is similar to the position of <b>TOSFOS</b> here (DH v'Chen, as cited in Insights to 86b). (<b>SHEYAREI KORBAN</b>, Makos 2:5, DH b'Lo)
</p><p>
The <b>MAHARSHAM</b> (OC 53:14) has a different approach. He proves from the Yerushalmi that even though one verse exempts a blind person from Mitzvos, another verse is necessary to exempt him from Galus. He suggests that it is only after we know that a blind person is exempt from punishment that we can derive -- from the verse which compares Mitzvos to Mishpatim -- that a blind person is exempt from Mitzvos.
</p><p>
A third approach may be that a verse indeed is needed to exempt a blind person from Misah and Galus even if it is already known that he is exempt from Mitzvos. This is because it is possible for a person to incur a punishment for murder even when he is not obligated in the Mitzvos of the Torah. Rav Gustman zt'l quotes the <b>SHITAH MEKUBETZES</b> in the name of <b>MAHARI KOHEN TZEDEK</b> to support his opinion that a blind person is exempt from all of the Mitzvos. Mahari Kohen Tzedek quotes <b>RABEINU TAM's</b> comment on the principle that a person who observes the Mitzvos because he is commanded to observe them ('Metzuveh v'Oseh') is greater than one who observes the Mitzvos when he is not commanded to observe them ('Eino Metzuveh v'Oseh'). Rabeinu Tam states that this principle applies only with regard to Mitzvos that a person would have had to observe even had they not been written in the Torah (such as the seven Mitzvos of Bnei Noach). The Gemara says that Rav Yosef was saddened to find out that a blind person is exempt from Mitzvos because he would not receive the reward of a 'Metzuveh v'Oseh.' According to Rabeinu Tam, Rav Yosef was exempt even from the Mitzvos of Bnei Noach. (See Kuntresei Shi'urim there, and <b>IGROS MOSHE</b> YD 1:6, cited by the Yosef Da'as here, who discuss what Mahari Kohen Tzedek means.)
</p><p>
It seems that Mahari Kohen Tzedek quotes Rabeinu Tam's position in order to answer the question discussed by the Ge'onim in the Shitah Mekubetzes there, and by Tosfos in Kidushin (31a): Why is a person who observes Mitzvos that he is commanded to observe greater than one who observes Mitzvos voluntarily? Rav Yosef's original assumption -- that a person who observes Mitzvos voluntarily is greater -- seems more logical, since doing the Mitzvah even when one is not commanded is considered Midas Chasidus (see <b>RASHBA</b>). To answer this question, Mahari Kohen Tzedek cites the Gemara earlier (38a) which teaches that when the Nochrim failed to observe their seven Mitzvos, Hash-m repealed those Mitzvos so that even when a Nochri observes them he does not receive reward like one who is 'Metzuveh v'Oseh' but only like one who is 'Eino Metzuveh v'Oseh.' The Gemara clearly says that although a Nochri <i>must</i> observe the seven Mitzvos nowadays, nevertheless his reward is like that of a person who is 'Eino Metzuveh v'Oseh.' How can that be? It must be that even had Hash-m not commanded Noach to observe these seven Mitzvos, Noach and his children would have had a moral obligation to observe them based on logical considerations. However, when one performs a Mitzvah for that reason, he receives less reward than one who was told by Hash-m to observe the Mitzvah, since the latter fulfills both the mandate of Hash-m and the moral obligation.
</p><p>
This is the intent of the Gemara here as well when it says that a person who is 'Metzuveh v'Oseh' is greater. The Gemara refers only to Mitzvos which logic would have compelled one to observe (not merely as Midas Chasidus), even had the Torah not specifically commanded them. (Perhaps for the other Mitzvos, one who is not obligated <i>would</i> receive a greater reward.)
</p><p>
According to this approach, even according to the Kuntresei Shi'urim's position that the commandments which Hash-m gave to Noach or Avraham do not apply to Jews after the giving of the Torah, a blind person nevertheless would be bound to fulfill the seven Mitzvos of Bnei Noach out of a moral obligation. A moral obligation and a Mitzvah are equally binding. The only difference between a moral obligation and a Mitzvah is the amount of reward received. This logic may also be the source for the Rambam's ruling that we do not perform the Mitzvos because of what Hash-m told Noach and Avraham. The Rambam may have learned this from the Gemara (38a) which teaches that the Mitzvos of Bnei Noach no longer apply and their obligation is based solely on moral considerations.
</p><p>
The Gemara in Kidushin (31a) seems to contradict this approach. The Gemara there says that a 'Metzuveh v'Oseh' is greater with regard to the Mitzvah of Kibud Av v'Em. However, a Ben Noach has no obligation of Kibud Av v'Em based on moral considerations. In fact, the Gemara in Nazir (61a) says clearly that a Nochri is not obligated to honor his father. Furthermore, the Gemara in Kidushin which discusses the righteous acts of Dama ben Nesinah states that if a Nochri who is <i>not</i> 'Metzuveh v'Oseh' receives such reward for honoring his father, all the more so will a Jew receive great reward for performing the Mitzvah.
</p><p>
However, these two statements of the Gemara may be understood differently. It is obvious that a person would have been morally obligated to honor his parents had the Torah not specified that he must honor them, as the Rambam writes (Shemoneh Perakim, chapter six). This moral obligation should obligate a Nochri to observe the Mitzvah of Kibud Av v'Em. The Gemara in Nazir means only that a Nochri cannot be sure about the identity of his father, and therefore he cannot be obligated to honor his father. In the Gemara in Kidushin, Dama ben Nesinah honored his father nonetheless, because he assumed that the man who raised him was his father. Although the Gemara calls him 'Eino Metzuveh v'Oseh,' it refers merely to the aforementioned Gemara in Bava Kama (38a) which asserts that a Nochri is rewarded for observing his Mitzvos only like a person who is 'Eino Metzuveh v'Oseh.'
</p><p>
Further support for this approach is the Halachah that a Nochri who converts must respect his parents so that people not say that he performed more Mitzvos before his conversion (<b>RAMBAM</b>, Hilchos Melachim 5:11; see <b><b><b>OR</b></b> SAME'ACH</b> there). This implies that a Nochri is obligated to respect his parents before he converts. (See also <b>SEFER HA'ESHKOL</b>, Hilchos Milah #39.)
</p><p>
Accordingly, when the Gemara here says that a blind person is 'Eino Metzuveh v'Oseh,' it means that he is obligated to observe the Mitzvos only because of moral considerations, and not because they are written in the Torah. (M. Kornfeld)
</p><p>


<font><b>2) ONE WHO PERFORMS A MITZVAH FROM WHICH ONE IS EXEMPT: IS HE A 'HEDYOT' OR A 'CHASID'?</b></font><b>
<br>QUESTION:</b> Rav Yosef initially thought that if a blind person is exempt from Mitzvos and nevertheless performs them, he receives a greater reward than one who is commanded to observe the Mitzvos. This assumption is based on the concept that if a person performs more Mitzvos than he is required to perform, he acts with 'Midas Chasidus.'
</p><p>
How is this concept reconciled with the Halachah of one who sits in a Sukah in the rain? A person is exempt from sitting in a Sukah when it is raining (OC 639:7), and one who sits in the Sukah when it is raining is called a 'Hedyot,' a fool. Similarly, the Yerushalmi (Shabbos 1:2) says that 'one who is exempt from a Mitzvah and performs it nonetheless is called a 'Hedyot.'' (<b>ME'IRI</b>)
</p><p>
A similar discrepancy arises with regard to the Mitzvah of Sukah itself. Although a person is not obligated to drink water in a Sukah, it is considered a 'Midas Chasidus' to do so (OC 639:2). This Halachah also seems to contradict the Yerushalmi that calls a person a 'Hedyot' for performing a Mitzvah when he is not required to do so. (<b>BIKUREI YAKOV</b>, cited by the <b>BI'UR HALACHAH</b> end of OC 639. See Insights to Sukah 28:1.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ME'IRI</b>, cited by the Shitah Mekubetzes, answers that a person is considered a 'Hedyot' only when the action that he does has no positive effect on his growth as a Jew. The act of eating in a Sukah with the discomfort caused by the rain cannot be said to cause any positive character development or convey a particular lesson in Avodas Hash-m. No one is obligated to eat in a Sukah when it is raining because nothing is gained from the act. In contrast, in the case of a blind person who is exempt from Mitzvos, there obviously are positive benefits that the blind person gains when he performs the Mitzvos. A blind person gains these benefits by performing the Mitzvos even though he is exempt from them.
</p><p>
Similarly, drinking water in the Sukah may be considered a positive act. As the <b>BIKUREI YAKOV</b> explains, the Torah does not go so far as to obligate a person to drink water in the Sukah. However, it is commendable to do so since it is a type of activity which one does in his home. Since it is a commendable act, it is considered a 'Midas Chasidus.' In contrast, one does not eat in a room in his home in which the rain enters, and thus eating in a Sukah as it rains is no act of 'Midas Chasidus.' Moreover, the Gemara considers rain during Sukos a Heavenly sign that Hash-m is not pleased with our performance of the Mitzvos. Therefore, it is understandable that one should not eat in a Sukah while it is raining, since the rain is a Heavenly sign that Hash-m does not want one to eat in the Sukah at the moment. (See also <b>VILNA GA'ON</b>, Mishnayos Berachos 1:3).
</p><p>
(b) A person is not called a 'Hedyot' if he performs an act that has a 'Shem Mitzvah.' If the act itself is considered a Mitzvah but an exemption from that act is currently in effect, one is not called a Hedyot for performing it. When rain is falling in the Sukah, eating in the Sukah is not considered an act of a Mitzvah at all. Since a person normally does not live in a house into which rain enters, eating in the rain does not fit the description of the Mitzvah of Sukah, which is 'k'Ein Taduru' (i.e. one must live in the Sukah in the manner in which he lives in his own home). On the contrary, by eating in the Sukah in the rain, one gives the appearance of adding to the Torah. However, when the act can be described as a Mitzvah, then even a person who is exempt from that Mitzvah may perform the Mitzvah as 'Midas Chasidus.' (This is similar to the first answer.) (<b>RAMBAN</b>, Kidushin 31a)
</p><p>


<font><b>3) THE PAYMENTS OF 'NEZEK' GIVEN TO ONE'S DAUGHTER</b></font><b>
<br>OPINIONS:</b> The Gemara asks whether a father receives payments of Nezek that are paid to his daughter who is a Ketanah, a minor. Does the father receive these payments like all of the 'Shevach Ne'urim' since the wound caused her value to decrease, or is Nezek different from Shevach Ne'urim which the father receives only because he may give her to a Mukeh Shechin in marriage (in return for payment), whereas he is not entitled to her Nezek payments since he does not have the right to wound his daughter?
</p><p>
Rav and Reish Lakish rule that the father does not receive his daughter's Nezek. Rebbi Yochanan rules that the father does receive his daughter's Nezek.
</p><p>
In general, the father receives Shevach Ne'urim not only from his daughter who is a Ketanah, but also from his daughter who is a Na'arah. According to Rebbi Yochanan, does the father of a Na'arah also receive the Nezek payments of his daughter? (<b>PNEI YEHOSHUA</b>; the <b>SHITAH MEKUBETZES</b> quotes this question in the name of <b>RABEINU MOSHE</b> of <b>SARAKOSTA</b>.)
</p><p>
(a) <b>RASHI</b> (beginning of 88a) writes that Rebbi Yochanan gives the Nezek to the father because it is within his right to sell her. This implies that he receives payments only for a <i>Ketanah</i>, whom he may sell as an Amah Ivriyah, but he cannot sell a Na'arah as an Amah Ivriyah. This is also inferred from the fact that the Gemara asks only what the Halachah is with regard to damages done to a <i>Ketanah</i>, and it does not mention a Na'arah.
</p><p>
(b) However, the <b>PNEI YEHOSHUA</b> points out that <b>TOSFOS</b> (87b, DH Amar Lei) explains that the Gemara discusses specifically the Nezek to the daughter's value when her father gives her over as a wife (which would apply to a Na'arah as well). The Gemara says that the father receives the Shevach Ne'urim since it is in his hands to give his daughter to a Mukeh Shechin. This applies both when she is a Ketanah and when she is a Na'arah. If the Gemara would refer only to a Ketanah, it would say simply that he receives the Shevach Ne'urim because he can sell her. (See <b>RASHI</b>, DH Shevach Ne'urim.)
</p><p>
This may also be the intent of Rashi later (88a). Rashi's statement that the father can sell his daughter may refer to his ability to give her over as a wife in exchange for money, rather than his ability to sell her as an Amah Ivriyah. (See Insights to Kesuvos 46:2.)
</p><p>
If, however, the Gemara's discussion applies to a Na'arah as well, why does the Gemara question only who receives the Nezek of a <i>Ketanah</i>? The <b>CHIDUSHEI RABEINU MEIR SIMCHAH</b> suggests that perhaps there are two payments for wounding a man's daughter: one for her depreciation as an Amah Ivriyah (which is given only to the father of a Ketanah), and one for her depreciation as a wife (which is given to the father of a Na'arah as well). The Gemara refers to the former payment, and that is why it mentions only a Ketanah.
</p><p>
Alternatively, the Gemara indeed may be referring to both a Ketanah and a Na'arah. However, the Gemara addresses the specific case of a Ketanah in order to emphasize that according to Rav, not only does the father of a Na'arah not receive payments for damages done to his daughter, but even the father of a Ketanah does not receive the payments (since he is not permitted to hit her). Since Rav's ruling is less intuitive with regard to a Ketanah, the Gemara chooses to discuss a Ketanah in order to teach this ruling.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A MARRIED WOMAN PAY NOW FOR WHAT SHE DAMAGES?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a (married) woman damaged someone, she
               is exempt now, but pays later, i.e. after she is
               divorced.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 88b (R. Yosi bar Chanina):</font></b> In Usha, they enacted
               that if a woman sells her Melug property and dies in
               her husband's lifetime, he takes the property from
               the buyer.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> The Mishnah proves that this enactment
               was made. If not, she should sell her Nichsei Melug
               (property she brought into the marriage, and gets it
               back (as is) when she collects her Kesuvah) to pay
               the damage!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> The enactment only prevents her from an
               absolute sale (i.e. the buyer will eventually get it
               even if she dies first). In any case, she can sell
               the Tovas Hana'ah (the rights to get the property if
               and when she is widowed or divorced)! We must say
               that the Mishnah discusses one who has no Nichsei
               Melug. Therefore, we cannot deduce whether or not
               there was an enactment.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> She should sell the Tovas Hana'ah of the
               Ikar Kesuvah (the 100 Zuz, or 200 if she was a
               virgin when he married her) to pay the damage!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> She need not sell the Tovas Hana'ah, due to
               Shmuel's law.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Shmuel):</font></b> If Reuven sold a loan document, he or
                    (after his death) his heir can pardon the loan.
                    (She will surely pardon the Kesuvah to please
                    her husband. No one would pay anything for it!)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> She should sell the Tovas Hana'ah of her
               Kesuvah to the victim! Even if she pardons the loan,
               he does not lose (without the sale, he collects
               nothing)!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> She will surely pardon the Kesuvah. We do
               not exert Beis Din to arrange a sale that will not
               help the victim.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> Similarly, if she hit her
               husband, she does not forfeit her Kesuvah. (She
               should sell the Tovas Hana'ah of her Kesuvah to her
               husband. If she will pardon it, her husband does not
               lose. He is exempted from paying her!)
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> Our Mishnah is like R. Meir, who forbids a
               man to live with his wife even for a moment if she
               does have a Kesuvah (of at least 100 or 200), lest
               he consider divorce to be a light matter. Here,
               divorce would be a light matter, for he can divorce
               her without paying (since he owns collection rights
               of the Kesuvah)!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> If a woman damaged, we do not make her sell
               Tovas Hana'ah of her Kesuvah, for she will surely
               pardon it. We should not overtly cause a loss to a
               buyer. We do not make her sell the Tovas Hana'ah of
               her Kesuvah to the victim. Even though it is no
               worse for him if she pardons it, since she will
               surely pardon it, we do not exert Beis Din to
               arrange a sale that will not help the victim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef:</font></b> The Ro'oh learns from here that
                    any woman can sell Tovas Hana'ah of her Nichsei
                    Melug. We say that surely she will pardon only
                    when she was forced to sell.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> If the husband writes a document to
                    the buyer in the buyer's name, she cannot
                    pardon it. Granted, he would not want to do so
                    to help a victim collect, but why doesn't he do
                    so when she damaged him?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Nimukei Yosef):</font></b> Even though it is not
                    light in his eyes to divorce her, since the
                    document is not in her name, she is like a wife
                    without a Kesuvah.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question:</font></b> Since she will surely pardon, how can
                    the Gemara discuss Tovas Hana'ah? No one will
                    pay anything for her Kesuvah!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer (Nimukei Yosef):</font></b> She could vow or swear
                    that she will not pardon, and give securities
                    or guarantors in case she does. However, she is
                    not Meshubad (indebted) to him to do so.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Hagahos me'Eretz Yisrael (5,6):</font></b> If she has
                    property now, she pays. If she does not, she is
                    not Meshubad to him because she has no property
                    now.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 4:18):</font></b> If a (married)
               woman damaged someone, she is exempt now, but pays
               later, i.e. after she is divorced.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (4):</font></b> Ba'al ha'Itur proves
                    from Bava Metzi'a 10b that likewise, she does
                    not pay now for theft. The Gemara said that she
                    does not pay now. R. Baruch says that we
                    distinguished a married woman from a single
                    woman only regarding damage, but not regarding
                    theft.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Kama 8:9):</font></b> If a woman damaged Levi, we
               evaluate all five payments and give a document to
               him saying how much she owes him when she will be
               widowed or divorced. If she had Nichsei Melug or
               Nichsei Tzon Barzel (property she brought in, and
               gets it back when collecting her Kesuvah, with
               compensation if its value changed), we would force
               her to sell them for Tovas Hana'ah, and pay Levi
               with the money. We do not make her sell her Ikar
               Kesuvah of 100 or 200 for Tovas Hana'ah. Surely, she
               will pardon it! Her husband is obligated due to
               Shibud d'R. Noson, because he is not yet obligated
               to pay the Kesuvah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Mordechai (92):</font></b> Rav Nachshon Gaon says that if a
               married woman damaged someone, she is exempt now,
               but she is lashed. If not, women will hit men.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 424:9):</font></b> If a (married) woman
               damaged someone, she is exempt now, but pays later,
               i.e. after she is divorced.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If she has Melug or Tzon Barzel property, she
               sells the Tovas Hana'ah and pays the victim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (16):</font></b> The Gemara mentioned only Nichsei
                    Melug in the Hava Amina, that she would sell
                    them absolutely. (In the conclusion, she sells
                    only Tovas Hana'ah, and this applies even to
                    Tzon Barzel property.)
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH v'Chasuv citing Sefer
                    ha'Terumos):</font></b> If we do not find one who will buy
                    Tovas Hana'ah of her Kesuvah, and the victim
                    wants, we force her to sell it to him for the
                    injury or loan. If the Tovas Hana'ah exceeds
                    the damage, he need not give back anything now,
                    until she acquires her independence.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (17):</font></b> She need not sell Ikar Kesuvah, for
                    surely she will pardon it. Pardon does not
                    apply to Melug and Tzon Barzel property.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Yam Shel Shlomo (8:27):</font></b> Even if the victim
                    wants to buy Tovas Hana'ah of her Kesuvah, Beis
                    Din does not toil for him, for surely she will
                    pardon it. However, if another man wants to buy
                    Tovas Hana'ah, we sell to him to pay the
                    victim. The same applies if she gives a
                    guarantor to pay if she will pardon, or swears
                    not to pardon and accepts punishments if she
                    will do so. She is not obligated to do so.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Question (Ketzos ha'Choshen 424:2):</font></b> The Gemara
                    asked that even after Takanas Usha, she should
                    sell Tovas Hana'ah of her Nichsei Melug. How
                    would this help? Even without this, the victim
                    gets the property after she is widowed or
                    divorced! What does he gain if he receives now
                    the value of this?
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Answer (Ketzos ha'Choshen):</font></b> Shuma Hadra l'Olam
                    (one who paid a debt with land can always buy
                    back the land). Sefer ha'Terumos (3:5:10) says
                    that he buys it back for the initial price for
                    which the creditor took it. If the land was
                    worth 100 and the victim took it (for payment)
                    for its Tovas Hana'ah, e.g. 10, when the
                    husband dies, she takes it back for its initial
                    value of 10! Rather, we would sell Tovas
                    Hana'ah to someone else, and the victim gets
                    the money. Shuma Hadra applies to one who
                    received land for a debt, but not to a buyer.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b></b>Rebuttal (R. Meir Simchah, 89a DH Tazvin):
                    Sefer ha'Terumos refers to when the value of
                    the property increased. We cannot say that one
                    who sells Tovas Hana'ah can buy it back later
                    for the initial price. If so, no one would buy
                    it!
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Gra (386:22):</font></b> When the Gemara said that she
                    sells Tovas Hana'ah, it did not mean right
                    away. Rather, it means for after her husband
                    dies.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HOW DOES A MARRIED WOMAN PAY FOR DAMAGE OR MESIRAH? </b></b>(</font><font color='blue'>


