# dafyomi

lvr: 41
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ANOTHER EXPLANATION OF THE BERAISA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> They argue after the time of falling.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Do all agree that he is exempt at the time of 
          falling?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan said 'do not say that the Mishnah 
               (31b) is only like R. Meir, who says that one who 
               trips is negligent.' This implies that R. Meir says 
               that he is liable!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Counter-question:</font></b> Can you say that at the time of 
          falling, all agree that he is liable?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan's teaching (just quoted) implies that 
               Chachamim exempt!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer to both questions:</font></b> R. Yochanan teaches that here 
          Chachamim exempt one who was Mafkir Nezakav in Reshus 
          ha'Rabim only if this was due to Ones. If he 
          intentionally put them there, all agree that he is 
          liable. (However, the Tana'im could also argue about at 
          the time of falling, when it was Ones.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Yochanan and R. Elazar argued about one who makes 
          Nezakav Hefker. One of them obligates, and the other 
          exempts.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Suggestion:</font></b> The one who obligates holds like R. Meir, 
          and the other holds like Chachamim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Granted, the one who exempts must hold 
          like Chachamim (since R. Meir obligates even one who is 
          Mafkir Nezakav after they fell b'Ones!)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, the one who obligates could hold like 
               Chachamim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We know that Chachamim exempt when the Nezakav 
               fell b'Ones. They could admit that he is liable when 
               there was no Ones.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	The following shows that R. Elazar obligates:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Elazar, citing R. Yishmael):</font></b> There are two 
               things that one does not own, but the Torah 
               obligates him for them as if he owned them: a pit in 
               the Reshus ha'Rabim, and Chametz from noon of Erev 
               Pesach and onwards.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> R. Elazar does not obligate!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven turned over dung in the 
               Reshus ha'Rabim, and Shimon was damaged by it, 
               Reuven is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> This applies only when Reuven 
               intended to acquire the dung. If not, he is exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This shows that R. Elazar exempts one who makes 
                    Nezakav Hefker!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1 (Rav Ada bar Ahavah):</font></b> R. Elazar exempts when 
          he returned the dung to its place.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Ravina):</font></b> A parable helps to understand Rav Ada's case. 
          This is like one who finds an open pit, covers it, and 
          again opens it (he is exempt).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection (Mar Zutra brei d'Rav Mari):</font></b> The comparison 
          is faulty! Regarding the pit, he never removed the 
          damager. Regarding the dung, he removed the damager (when 
          it was in his shovel; when he puts it back, he (re-
          )creates a damager).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Mar Zutra brei d'Rav Mari):</font></b> This is a proper parable. 
          It is like one who finds an open pit, fills it with dirt, 
          and again digs it. (He is liable, since he created a 
          damaging item.)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> He did not lift the dung three 
          Tefachim (so it was always a damager).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> What forced R. Elazar to say that the Mishnah 
          is a case when he did not lift the dung three Tefachim, 
          and he is liable because he intended to acquire it? Let 
          him say that he lifted it more than three Tefachim, and 
          he is liable even if he did not intend to acquire!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> He saw a difficulty in the Mishnah. Why 
          did it say 'he turned over', and not 'he lifted'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He concluded that 'he turned over' connotes that 
               he did not lift it three Tefachim.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>R. YOCHANAN'S OPINION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Inference:</font></b> Since R. Elazar obligates, it must be that 
          R. Yochanan exempts.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> This is not so!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven hid a thorn or glass, or 
               made a fence of thorns, or his wall fell in the 
               Reshus ha'Rabim, and people were damaged by it, he 
               is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> This is only if the fence of 
               thorns protruded into the Reshus ha'Rabim. If it was 
               within his property, he is exempt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> If it was within his property, he is 
               exempt because it is like a pit within his property.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Inference:</font></b> He holds that the pit that the Torah 
               obligates for is in the Reshus ha'Rabim, even though 
               such a pit is Hefker!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Really, R. Yochanan exempts one who is 
          Mafkir Nezakav;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The reason he is exempt if the thorn was within 
               his property, is like Rav Acha taught.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Acha brei d'Rav Ika):</font></b> He is exempt because 
               people do not normally scrape themselves on walls 
               (the victim brought the damage on himself by acting 
               abnormally).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yochanan does not exempt one who is Mafkir 
          Nezakav! R. Yochanan said that the Halachah follows a 
          Stam (anonymous) Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one dug a pit in the Reshus 
               ha'Rabim, and an ox or donkey fell in and died, he 
               is liable.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, R. Yochanan obligates one who is Mafkir 
          Nezakav.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Inference:</font></b> R. Elazar exempts.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> R. Elazar cited R. Yishmael to say that one 
          is liable!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Elazar himself exempts.
<br>

sjt:
<p>
<font><b>2) HOW HIGH MUST A 'KINYAN HAGBAHAH' BE</b></font><b>
<br>QUESTION:</b> The Gemara quotes Rebbi Elazar in the name of Rebbi Yishmael who says that there are two things that are not actually in a person's possession but the Torah considers them to be in his possession. One of these things is a Bor in the public domain. 
</p><p>
The Gemara asks that Rebbi Elazar apparently contradicts himself. The Mishnah states that one who turns over a block of fertilizer in the public domain and it subsequently causes damage to someone, the one who turned it over is liable for the damages. Rebbi Elazar explains that he is liable only if he intended to acquire the fertilizer. If he did not intend to acquire the fertilizer, he is not liable. Rebbi Elazar implies that when one makes his things ownerless, he is not obligated for the damage they cause!
</p><p>
Rav Ashi answers that the Mishnah refers to a case in which he turns over the fertilizer by picking it up less than three Tefachim from the ground. <b>RASHI</b> (DH k'she'Hafchah) explains that since he did not pick up the fertilizer three Tefachim high, the fertilizer is considered like an open Bor both before and after he touched it. Nothing changed when he picked it up since he did not pick it up high above the ground. However, if he has intention to acquire it, it becomes his property that damaged and therefore he is liable to pay.
</p><p>
The Gemara here seems to contradict the view of Rashi's in Kidushin (26a, DH b'Chavilei Zemoros). Rashi writes that a person must lift an object three Tefachim high in order to perform a Kinyah Hagbahah, an acquisition through lifting. Rav Ashi here, however, implies that Rebbi Elazar rules that if one has intent to acquire the fertilizer, he acquires it even if he lifts it less than three Tefachim. The <b>RASHBA</b> quotes <b>RABEINU TAM</b> who cites proof from the Gemara here against the opinion of Rashi in Kidushin (see also <b>ME'IRI</b>). How does Rashi there understand the Gemara?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Ela) answers that for an ownerless object, merely moving it is a mode of acquisition. Therefore, it makes sense that one acquires it when he lifts it less than three Tefachim high. Rashi himself here gives this reason for why lifting the fertilizer less than three Tefachim high is a valid form of acquisition of the ownerless fertilizer. 
</p><p>
(b) In his second answer, Tosfos explains that the person turns over the fertilizer with his vessel, and his vessel acquires the fertilizer for him (not through a Kinyan Hagbahah, but through a Kinyan Chatzer).
</p><p>
(c) In his third answer, Tosfos explains that one's hand has the ability to acquire something through lifting it, even if he lifts it less than three Tefachim from the ground (see Kesuvos 31a). (Mordechai Zvi Dicker)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LEAVING NEZAKAV IN THE RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven poured water in the Reshus 
          ha'Rabim, and Shimon was damaged by it, Reuven is liable;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven hid a thorn or glass, or made a fence of 
          thorns, or his wall fell in the Reshus ha'Rabim, and 
          people were damaged by it, Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Rav):</font></b> Reuven is liable only if Shimon's 
          clothing was dirtied by the water. If Shimon got hurt 
          when he fell, Reuven is exempt. The ground injured him, 
          and Reuven does not own the ground.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Huna):</font></b> The water mixes with the dirt and 
          makes mud. This mud is Reuven's!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> The case is, the water was totally 
          absorbed and did not make mud.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Rav also explained the Mishnah (28a) this 
          way. Why do we need two Mishnayos teaching the same 
          thing?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The extra Mishnah obligates not only in summer, 
          but even in winter, when one may expel water to the 
          Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Whenever Chachamim allowed letting 
               one's waste water run into the Reshus ha'Rabim, and 
               to sweep out one's water-cave, this is only 
               permitted in winter;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even though it is permitted, if someone is 
               damaged by it, the owner is liable.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he hid a thorn...
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> This is only if the fence of thorns 
          protruded into the Reshus ha'Rabim. If it was within his 
          property, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the thorn was within his property, he is 
               exempt for Rav Acha's reason.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Acha brei d'Rav Ika):</font></b> He is exempt because 
               people do not normally scrape themselves on walls 
               (the victim brought the damage on himself by acting 
               abnormally).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven hid thorns and glass in Shimon's 
          wall, and Shimon knocked down his wall, and the thorns 
          and glass fell into the Reshus ha'Rabim and damaged, 
          Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> This is only if the wall was prone to 
          fall. If the wall was sturdy, Shimon is liable, and 
          Reuven is exempt.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Inference (Ravina):</font></b> We may derive that if Reuven covers 
          his pit with Shimon's Deli (bucket; Rashi - lid), and 
          Shimon takes his Deli, Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Obviously, we may derive this!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Regarding the wall, Shimon is not liable for 
          not telling Reuven (that he will knock down his wall, for 
          he did not know that anyone hid things in his wall);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding a pit, Shimon knows that Reuven relies 
               on the Deli. One might have thought that Shimon must 
               inform him when he takes it back. Ravina teaches 
               that this is not so.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Early Chasidim used to bury their thorns and 
          glass three Tefachim deep under their fields, lest they 
          be pulled up during plowing.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Sheshes burned them. Rava threw them in the 
               Diglas River.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> One who wants to be a Chasid should 
          fulfill the laws of damages;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rava):</font></b> He should fulfill the matters 
               in Pirkei Avos.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2:</font></b> Some say, he should fulfill the 
               matters of Berachos.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>RUINING THE RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven took out his straw and stubble to 
          the Reshus ha'Rabim to make fertilizer, and Shimon was 
          damaged by it, Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Anyone who wants may take the straw and stubble;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Shimon ben Gamliel says, anyone who damages the 
          Reshus ha'Rabim is liable for anyone who gets hurt. 
          (Anyone may take the Nezakav - Tosfos deletes this from 
          the text of the Mishnah.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If Reuven turned over dung in the Reshus ha'Rabim, and 
          Shimon was injured by it, Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Suggestion:</font></b> The Mishnah is unlike R. Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> At the time that people 
               put out fertilizer, one may put his fertilizer in 
               the Reshus ha'Rabim for 30 days, so it will be 
               trampled by people and animals;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Yehoshua made this a condition for inheriting 
               Eretz Yisrael.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> The Mishnah can even be like R. Yehudah. R. 
          Yehudah admits that if one is damaged by it, the owner is 
          liable.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Mishnah - R. Yehudah):</font></b> (A grocer left his Ner 
          Chanukah burning outside his shop, and this set fire to a 
          load of flax on a passing camel. The camel moved around, 
          and set the whole building on fire.) The grocer is 
          exempt, because he had permission to leave the lights 
          burning.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He is exempt because he had 
               permission of Beis Din!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he is exempt because it is a Mitzvah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (Beraisa - R. Yehudah) If he left Ner Chanukah 
               burning, he is exempt, for he had permission to 
               perform the Mitzvah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support (of Suggestion (e) - Beraisa):</font></b> Whenever one may 
          damage the Reshus ha'Rabim, if someone was hurt, the 
          damager is liable; 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah exempts.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection #1 (Rav Nachman):</font></b> Our Mishnah does not 
          discuss a time when people (normally, and therefore may) 
          leave fertilizer in the Reshus ha'Rabim. It is even like 
          R. Yehudah.
<br>
<br>

sjt:
<font><b>1) A WALL FULL OF THORNS</b></font><b>
<br>OPINIONS:</b> The Gemara quotes a Beraisa which states that when one hides his thorns or glass in a wall and the owner of the wall eventually knocks down the wall in such a way that it falls into the public domain, the owner of the thorns or glass is liable for any damage that his object causes. Rebbi Yochanan explains that he is liable only when the wall was weak. <b>RASHI</b> (DH b'Kosel Re'u'a) explains that since the wall was weak, the owner of the thorns should have realized that the wall would be knocked down and that his thorns would cause damage.
</p><p>
Why, though, is the owner of the wall entirely exempt? Since he was the one who knocked down the wall into the public domain and caused the thorns to be in a place in which they could do harm, he should be at least partially liable for the damage. 
</p><p>
(a) <b>RASHI</b> (DH Mahu d'Teima) and <b>TOSFOS</b> (DH v'Chayav) write that although the owner of the wall was aware of the thorns when he knocked down the wall, he had no obligation to do anything with the thorns because he did not know who owned the thorns. 
</p><p>
The <b>BIRKAS AVRAHAM</b> explains the intention of Rashi and Tosfos. At the moment the thorns are placed in a wall that will likely be knocked down, they are considered a Bor. Since a natural and foreseeable occurrence, such as a strong wind, will bring the thorns to cause damage, it is considered as if the owner of the thorns has thrown a damaging object (Bor) towards the public domain, and it merely has not yet landed in the public domain. Accordingly, when the owner of the wall knocks it down, he is merely adding a small degree of negligence to a pre-existing Bor. 
</p><p>
This is why the Gemara compares this case to a case in which one covered his Bor with his friend's pail. If his friend takes away his pail, the owner of the Bor is liable for the resultant damage, even though it was his friend who uncovered the Bor. This is because the obligation to prevent the Bor from causing damage falls on the person who creates the Bor. When the Bor is not being watched or covered, the liability rests on the owner of the Bor. 
</p><p>
This explanation is novel in that it asserts that the thorns are considered a Bor immediately, even though they are not yet resting in the public domain.
</p><p>
(b) The <b>NIMUKEI YOSEF</b> seems to have a different approach. He writes that the owner of the wall is exempt because he had no reason to suspect that someone put thorns into his weak wall. The Nimukei Yosef clearly understands that the owner of the wall did not know about the thorns inside his wall, and hence he is exempt from any liability.
</p><p>
The Birkas Avraham explains that according to the Nimukei Yosef, the thorns are not considered a Bor before they fall into the public domain. The owner of the thorns is Chayav because his actions, together with a natural occurrence, brought a Bor into the public domain.
</p><p>
The Birkas Avraham describes a case in which there is a practical difference between these two approaches, that of Rashi and Tosfos and that of the Nimukei Yosef. What is the law if a third person knocks down the wall? Is he liable to pay for the damages caused by the thorns, or does the liability still rest on the owner of the thorns? 
</p><p>
According to Rashi, who explains that the thorns are already considered a Bor, it should make no difference who knocks down the wall. In any case, the owner of the thorns has created a Bor and is liable. This indeed is the ruling of the <b>ME'IRI</b>. The Gemara discusses the case of a person who covered his Bor with someone else's pail. The owner of the pail subsequently took his pail from atop the Bor. The Gemara states that the owner of the Bor is liable for any damage that his Bor causes as a result of being uncovered. The Me'iri writes that even if someone other than the owner of the pail takes away the pail, the owner of the Bor is liable because he failed to prevent his Bor from causing damage.
</p><p>
In contrast, the Nimukei Yosef quotes the <b>RAMAH</b> who rules that if someone other than the owner of the wall knocks down the wall without permission of the owner, the one who knocks it down is liable. Although the owner of the thorns was negligent, the one who knocked down the wall finished the formation of the Bor, and thus he is liable. This ruling is consistent with the Nimukei Yosef's logic explained above, that the thorns do not yet have the status of a Bor until they actually fall into the public domain. Therefore, anyone who brings the Bor to the public domain is liable. He may not claim that he did not know there were thorns in the wall (as the owner of the wall may claim), since he knocked it down without permission. (Mordechai Zvi Dicker)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection #2 (Rav Ashi):</font></b> Our Mishnah discusses leaving 
          straw and stubble, which are slippery, in Reshus 
          ha'Rabim. R. Yehudah permits leaving only fertilizer that 
          is not slippery.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>MAY OTHERS TAKE THE NEZAKAV?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Anyone who wants may take them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav):</font></b> The original owner doesn't get anything.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Ze'iri):</font></b> The original owner gets back the original 
          value; the one who takes them keeps the value they 
          increased in the Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav holds that we fine the original owner to lose 
               the original value, to deter him from putting them 
               out in the hope they will increase in value. Ze'iri 
               does not make such a fine.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Seifa of the Mishnah):</font></b> If Reuven turned over 
          dung in the Reshus ha'Rabim, and Shimon was injured by 
          it, Reuven is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Seifa does not say 'anyone who wants may take 
               them'. (This is like Ze'iri, who says that the 
               original owner loses only the increased value. Dung 
               does not increase in value.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (on behalf of Rav):</font></b> This was taught in the 
          Reisha. It also applies to the Reisha, even though it was 
          not repeated.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> One may not take (the dung), for 
          that is theft.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa means that if Levi took straw or 
          dung from the Reshus ha'Rabim (he was permitted to do), 
          one may not take it from Levi.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection (Beraisa):</font></b> If Reuven took out his straw and 
          stubble to the Reshus ha'Rabim to make fertilizer, and 
          Shimon was damaged by it, Reuven is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Anyone who wants may take the straw and stubble. 
               This is not theft.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven turned over dung in the Reshus 
               ha'Rabim, and Shimon was injured by it, Reuven is 
               liable;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It is forbidden for someone else to take them.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman bar Yitzchak):</font></b> Rav said that to 
          deter people from leaving things out in the Reshus 
          ha'Rabim to improve, we make a fine, and even the 
          principal may be taken. Dung does not improve, so 
          Chachamim did not make any fine.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rav, who says that we fine the 
          owner to lose the original value, to deter him from 
          putting them out with the hope that they will increase in 
          value, does the fine apply immediately, or only after 
          they increase?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> We challenged Rav from the case of dung, which 
          does not increase. We must say that Rav says that the 
          fine applies before there is any increase.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection:</font></b> The questioner did not know Rav Nachman's 
          answer, that the fine applies only when the owner hoped 
          to profit. If he knew this, he could not ask at all!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rav and Ze'iri argue like the following 
          Tana'im.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If a loan document specifies 
               that Ribis (usury) will be charged, we fine the 
               lender, and he may not collect even the principal;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, he collects the principal, not the 
               Ribis.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Rav holds like R. Meir, and Ze'iri 
               holds like Chachamim.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> Rav can hold even like Chachamim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim permit collecting only the principal, 
               since the principal is permitted. They make the 
               straw Hefker, for the straw itself damages.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Ze'iri can hold even like R. Meir.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir fines even the principal in that case, 
               for the very writing of the document imposes Ribis 
               and is forbidden. Regarding straw, it is not certain 
               that any damage will come.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rav and Ze'iri argue like the following 
          Tana'im.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven took out his straw and 
               stubble to the Reshus ha'Rabim to make fertilizer, 
               and Shimon was damaged by it, Reuven is liable;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Anyone who takes the straw and stubble acquires 
                    them. This is forbidden, due to theft.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says, anyone who damages 
               the Reshus ha'Rabim is liable for anyone who gets 
               hurt;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Anyone who takes the Nezakav acquires them. It is 
                    permitted to take them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> The Beraisa contradicts itself!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It says that anyone who takes the straw and 
                    stubble acquires them, then it says that this 
                    is forbidden due to theft!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> It means that anyone who takes the 
               increased value acquires it. One may not take the 
               principal, due to theft;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Shimon ben Gamliel argues, and permits taking 
                    even the principal.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Rejection:</font></b> Granted, Ze'iri must hold like Chachamim. 
          However, all the Tana'im could agree to Rav;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> All agree that we fine the principal due to the 
               (anticipated) profit. They argue about whether or 
               not we tell people (who ask) that this is the law.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Huna, citing Rav):</font></b> This is the law, but we 
               do not tell people that it is the law.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Ada bar Ahavah):</font></b> This is the law, and we 
               tell people so.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question:</font></b> Cases occurred in which people left peeled 
          barley and date refuse in the Reshus ha'Rabim, and Rav 
          Huna and Rav Ada bar Ahavah, respectively, declared them 
          Hefker!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, Rav Ada bar Ahavah acted like his 
               teaching.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps Rav Huna retracted from his 
               own teaching!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer:</font></b> No. He ruled in a case in which the man was 
          warned to remove the barley.
<br>

sjt:
<p>
<font><b>2) A HALACHAH THAT IS NOT TAUGHT </b></font><b>
<br>QUESTION:</b> The Gemara relates that the Chachamim penalized one who leaves his straw in the public domain so that passers-by will tread on it (and thereby turn it into fertilizer), and they permitted anyone to take his straw. Rav says that this penalty applies even if the straw was not yet trampled. Although this is the Halachah, the Tana Kama maintains that 'Halachah v'Ein Morin Ken' -- 'this is the law, but we do not instruct thusly.' That is, if one asks whether he is permitted to take the straw before it has been trampled, the Rav tells him that he may take it only after it has been trampled. If, however, he takes the straw before it has been trampled, he is not forced to return it since he acted in accordance with the letter of the law. 
</p><p>
The <b>MAHARATZ CHAYOS</b> points out that the concept of 'Halachah v'Ein Morin Ken' generally means something else. One who inquires in private should be told the correct Halachah, but that Halachah should not be taught <i>in public</i>. The Gemara here clearly means that one who asks should not be told the actual Halachah (as <b>RASHI</b> writes in DH b'Halachah). The Gemara asks that if 'Halachah v'Ein Morin Ken' applies here, why did Rav Huna rule that barley left in the public domain is ownerless? If 'Halachah v'Ein Morin Ken' means that the Halachah is told to someone only in private, perhaps Rav Huna only ruled this way for those who asked him in private! It must be that the Gemara means that the Halachah, in this case, is not taught even in private. 
</p><p>
Why, though, does the Gemara here use this phrase differently from the way it uses it in all other places? (See, for example, Shabbos 12a, Beitzah 28b.) 
</p><p>
<b>ANSWER:</b> Perhaps the concept of 'Halachah v'Ein Morin Ken' is generally used with regard to a leniency which the Chachamim do not want to publicize, lest people become lax in their observance of matters of Isur v'Heter. Teaching the leniency only in private will prevent it from becoming publicized. In contrast, the Gemara here is not discussing a leniency, but rather a <i>penalty</i>. It is therefore understandable that when 'Halachah v'Ein Morin Ken' is mentioned in the context of a person who seeks to take advantage of the penalty which the Chachamim applied, the Chachamim do not encourage such behavior by revealing that it is permitted, as such a ruling will cause disputes. 
</p><p>
This explanation may have a basis in the words of the <b>ME'IRI</b>. The <b>ME'IRI</b> writes that the reason why we do not rule this way is because of 'Tikun ha'Olam,' which implies that we seek to avoid disputes. (See note 95 in <b>OTZAR MEFARSHEI HA'TALMUD</b> here.) (Mordechai Zvi Dicker) 
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS ONE WHO TRIPPED LIABLE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If two potters were walking one after the 
          other, and one tripped, and the other tripped over him, 
          the first pays the damages.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - R. Yochanan):</font></b> Do not say that our Mishnah is 
          only like R. Meir, who says that one who trips is 
          negligent, and therefore liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, our Mishnah is even like Chachamim, who 
               say that one who trips is not negligent, and exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In our Mishnah, he is liable, for he should have 
               gotten up.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Nachman bar Yitzchak):</font></b> Even if he was unable to 
          get up, he is liable. He should have warned Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan disagrees. Since he cannot get up, he 
               is distracted, and he is not obligated to warn.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>STOPPING IN A RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven was walking, carrying a beam, and 
          Shimon was walking in back of him, carrying a jug, and 
          the jug broke on the beam, Reuven is exempt;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven stopped, he is liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Suggestion:</font></b> The case is, Reuven stopped to adjust the 
          beam, which is normal, and still he is liable, for he 
          should have warned (even though he was distracted. This 
          refutes R. Yochanan!)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, he stopped to rest (which is abnormal).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Inference:</font></b> Had he had stopped to adjust it, he would be 
          exempt.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why does the Reisha say that if he 
          warned Shimon, he is exempt? It should distinguish 
          between stopping to rest and to adjust!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah should say 'he is liable only when he 
               stopped to rest. If he stopped to adjust, he is 
               exempt'!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah teaches a different Chidush. Even 
          if he stopped to rest, if he warned, he is exempt.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Potters and glassmakers were 
          walking one after the other. Reuven (the first one) 
          tripped and fell; Shimon tripped on Reuven, and Levi on 
          Shimon. Reuven pays the damages to Shimon, and Shimon 
          pays the damages to Levi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they all fell due to Reuven, he pays all the 
               damages.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they warned each other, all are exempt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> They were unable to stand (they are 
               liable because they should have warned).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, they could have stood.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Inference:</font></b> If they could not have stood, they would be 
          exempt.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	If so, why does the Reisha say that if they warned each 
          other, they are exempt? It should distinguish between 
          whether or not they could not have stood!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa should say 'they are liable only when 
               they could have stood. If they were unable to stand, 
               they are exempt'!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa teaches a different Chidush. Even 
          when they could have stood, if they warned each other, 
          they are exempt.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>FOR WHICH DAMAGES MUST THEY PAY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> Reuven pays the damages to Shimon, both bodily 
          damage (to Shimon himself, due to Reuven's body or 
          property) and property damage (to Shimon's property, 
          caused by Reuven's body). 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon pays to Levi only bodily damage, but not 
               property damage.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> This is inconsistent!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one who trips is negligent, Shimon should be 
               liable also for property damage!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If one who trips is not negligent, Reuven should 
               be exempt even for bodily damage!
<br>
<br>

sjt:
<font><b>1) HALACHAH: THE OBLIGATION TO WARN PASSERS-BY</b></font><b>
<br>OPINIONS:</b> The Mishnah teaches that when a potter trips and falls and causes his friend to trip over him, he is responsible to pay for any damage that results. The Gemara cites several opinions as to why he is responsible. Rebbi Yochanan explains that the Mishnah follows not only the view of Rebbi Meir who maintains 'Niskal Poshe'a' -- 'one who trips is negligent,' but even the view of the Rabanan who, although they maintain that tripping is considered an accident and not negligence, agree that in this case he is obligated to pay for the damages because he should have risen immediately and he did not do so (and thus he caused the second person to trip).
</p><p>
Rav Nachman bar Yitzchak explains that even if he is not obligated to pick himself up immediately, he at least is obligated to warn others volubly not to trip over him, and he did not do so. Rebbi Yochanan argues that if he is not obligated to arise immediately, it must be because he is involved in recouping from his fall. Accordingly, he also is not obligated to warn others. The obvious difference between Rebbi Yochanan's explanation and Rav Nachman bar Yitzchak's is a case in which the person who tripped did not warn the oncoming person of his fall. According to Rebbi Yochanan he is exempt, and according to Rav Nachman bar Yitzchak he is liable.
</p><p>
Does the Halachah follow the view of Rebbi Yochanan or the view of Rav Nachman bar Yitzchak?
</p><p>
(a) The <b>RIF</b> rules that the Halachah follows the view of Rebbi Yochanan, in accordance with the Gemara's understanding of Rebbi Yochanan as quoted later. The Mishnah teaches that when a person carrying a beam stops in the middle of the public domain and a person carrying a barrel behind him collides with the beam which causes the barrel to break, the beam carrier is obligated to pay for damages. Presumably, he is obligated to pay because he should have warned the person in back of him that he was going to stop. This is problematic according to Rebbi Yochanan, who maintains that a person is <i>not</i> liable for failing to warn passers-by. The Gemara answers that he is obligated to pay only when he stopped to rest in the middle of the public domain. However, if he merely stopped to adjust his load and continue, he indeed is exempt. The Gemara then asks that the end of the Mishnah explicitly states that if he warns the person behind him he is exempt. Why does the Mishnah itself not state that if he stopped to adjust his load, he is exempt? The Gemara concludes that the Mishnah's intent is to teach that although it is unusual for a person carrying a beam to rest in the public domain, if he warns others of a potential collision he is exempt from paying for damages. 
</p><p>
The <b>ROSH</b> questions the Rif's ruling for two reasons. Rav Nachman bar Yitzchak is a later Amora who was a student of Rabah, and generally the Halachah follows the view of the later Amora (who had the opportunity to analyze the opinions of the earlier Amora'im and nevertheless disputed them). Moreover, the Rosh understands that the way the Gemara understands the Mishnah according to Rebbi Yochanan is problematic. Would one really have thought, without the Mishnah, that if a person carrying a barrel collides with a beam, the beam owner must pay for the barrel even though he warned passers-by that he had stopped? It seems obvious that the beam owner is exempt. Why does the Mishnah need to teach that he is exempt in such a case? 
</p><p>
(b) The <b>TUR</b> (CM 413) writes that the Rosh rules like Rav Nachman bar Yitzchak. Therefore, if a potter who tripped had time to warn the second potter and did not do so, he is obligated to pay for the damages. 
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (CM 413:1) rules like the Rif. This is also the ruling of most of the Rishonim, including the <b>RAMBAM</b> (Hilchos Nizkei Mamon 13:8) and the <b>RAN</b>. However, the <b>REMA</b> records the opinion of the Rosh. 
</p><p>
The <b>S'MA</b> (ibid.) points out an apparent contradiction in the rulings of the Tur and the Rema. As noted above, the Gemara compares the case of the potter who trips with the case of the beam owner who stops in the middle of the public domain, causing the barrel owner to crash his barrel into the beam. The Tur and Rema rule that if the first potter had time to warn the other but failed to do so, the first potter is obligated to pay for damages. However, in the case of the beam (CM 379:1-2) they follow the Gemara's understanding of Rebbi Yochanan's logic that the beam owner is obligated to pay only if he stopped to rest but not if he stopped to adjust his load. 
</p><p>
The S'ma answers that the Tur and Rema maintain that a person carrying a beam is more involved in concentrating on his load and does not have the presence of mind to warn others that he is going to stop. In contrast, a person who has tripped should have the presence of mind to warn others not to crash into him once he has fallen. (Y. Montrose)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Reuven is certainly negligent (because he 
          tripped on his own). Shimon is blameless for falling, but 
          is liable for damage due to his body, for he should have 
          gotten up.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is exempt for damage due to his property, 
               because he cannot be blamed for his property 
               falling, and he made it Hefker. (We explain like 
               Tosfos and Rashi's latter Perush (Sof 31b).)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Every one of them is liable for 
          bodily damage, and exempt for property damage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This applies even to the first.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> No, it applies to all except the first.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> It says 'every one of them'!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Ada bar Ahavah):</font></b> It means, every one of 
          those injured.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection:</font></b> This is unreasonable!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, if it means even the first, this is why 
               it says 'every one of them.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if it means all other than the first, let it 
               just say 'the injured'!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Retraction (Rava):</font></b> Rather, Reuven must pay the damages 
          to Shimon, both damage to Shimon's body and to his 
          property (Reuven is not negligent for falling, rather for 
          not getting up);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon pays only damage to Levi's body, but not 
               to Levi's property.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Why is Shimon exempt for damage to Levi's 
          property?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Shimon's body is an obstacle. It is considered 
          a pit (he is even less negligent than Reuven, who tripped 
          by himself). One does not pay for Kelim damaged by a pit 
          (only for people and animals).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> This is like Shmuel, who says that every 
          obstacle is like a pit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Rav, who says that an obstacle is like 
               a pit only if the owner made it Hefker (ownerless), 
               how can we answer?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, it is like we said above (a). Reuven 
          pays to Shimon damages due to Reuven's body and property;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon pays only damage that his own body caused 
               to Levi, but not what his property caused.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #2 (to question (d) - Rav Ada bar Minyomi):</font></b> The 
          Beraisa says 'every one of them is liable for damage due 
          to his own body, and exempt for damage due to his 
          property.' It discusses damage to Kelim. (One is liable 
          for all damage caused by his own body. He is exempt for 
          damage caused by his property to Kelim. Reuven's property 
          is like a pit. Shimon's property is not liable even like 
          a pit.)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If they all fell due to Reuven, he pays all 
          the damages.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> How is it that they all fell due to Reuven?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer #1 (Rav Papa):</font></b> Reuven fell across the width of 
          the road.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #2 (Rav Zvid):</font></b> He fell like a blind man's stick 
          (diagonally, covering the width of the road). (Tosfos - 
          if he fell horizontally, like Rav Papa said, he would be 
          liable only for damage to Shimon. The latter victims were 
          negligent for not being careful, even after they saw 
          others fall before them.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>COLLISIONS IN THE RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven was walking, carrying a jug, and 
          Shimon is walking towards him, carrying a beam, and the 
          jug collided with the beam and broke, Shimon is exempt. 
          Both of them have the right to walk.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven was walking in back of Shimon, and the jug 
          broke on the beam, Shimon is exempt.
<br>

sjt:
<p>
<font><b>2) ONE WHO FELL AND BLOCKED THE ROAD </b></font><b>
<br>OPINIONS:</b> The Gemara earlier (31a) quotes a Beraisa which discusses a case in which one potter fell, another fell on him, and a third person fell on the second person. The first one is responsible for the damages suffered by the second person, and the second one is responsible for the damages suffered by the third. However, if all of them fell because of the first one, the first one is obligated for everyone's damages.
</p><p>
The Gemara questions what the Beraisa means when it says that everyone fell because of the first one. Rav Papa explains that the first person fell across the width of the public domain like the carcass of a dead animal. Rav Zevid explains that the first person who fell was like the stick of a blind man.
</p><p>
Do Rav Papa and Rav Zevid disagree with each other?
</p><p>
(a) <b>TOSFOS</b> (DH k'Chutra) writes that they indeed disagree. Tosfos seems to understand that Rav Papa maintains that since the second and third potters physically tripped on the first potter when he blocked the road, he is obligated to pay for everyone's damages. Rav Zevid, however, asserts that in such a case the third person should have seen the second person fall and taken measures to avoid falling. If he also falls, the first person is not responsible. However, if the first person fell like a blind man's stick -- which means that he is sprawled diagonally across the public domain -- it is possible that the second person and third person can trip over him at the same time. At the moment the second person trips on the top part of the diagonal (for example, his head), the third person trips on the other end of the diagonal. The third person had no more warning time than the second person in this case, and thus the first person is obligated for the damages of both. 
</p><p>
The <b>ROSH</b> agrees with Tosfos but writes that he is unsure whose opinion should be codified as the Halachah. The <b>TUR</b> and <b>REMA</b> (CM 413:3) quote Rav Zevid's opinion as stated by Tosfos and the Rosh as a requirement to obligate the first person in damages. (This presumably is because it is unclear whether or not the law follows Rav Zevid. Accordingly, Beis Din cannot take money away from the first person unless they know that he is obligated to pay.) 
</p><p>
(b) The <b>RIF</b>, <b>RAMBAM</b> (Hilchos Nizkei Mamon 13:11), and others seem to understand that there is no argument between Rav Papa and Rav Zevid. The Rif does not even quote Rav Zevid, but rather he cites his statement merely as an alternative case. This opinion is the simple understanding of the <b>SHULCHAN ARUCH</b> (CM 413:3). (Y. Montrose)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>COLLISIONS IN THE RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	If Shimon stopped, he must pay. If he told Reuven 
          'stop!', he is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Shimon was walking in back of Reuven, and the beam 
          broke the jug, Shimon must pay;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If Reuven stopped, Shimon is exempt. If he told Shimon 
          'stop!', Shimon must pay.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	The same applies if Reuven was carrying a lit lamp, and 
          Shimon was carrying flax (and it caught fire).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Rabah bar Nasan) Question:</font></b> If one damaged his 
          wife through Bi'ah (marital relations), must he pay?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since he may have Bi'ah with her, he is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps he should have been more careful, and 
               he must pay.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Huna):</font></b> We learn from (the Reisha of) our 
          Mishnah. Since each has permission to walk, the damager 
          is exempt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> A Kal va'Chomer shows that he must 
          pay!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Everyone may enter a forest, yet if one 
               accidentally kills someone while chopping wood, it 
               is as if he entered the victim's domain, and he is 
               exiled;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A man enters his wife's body during Bi'ah. All 
               the more so, he is liable!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> (He is exempt, because) each of 
          them is entitled to walk.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> In the Mishnah, both men participated in the 
          damage. In Bi'ah, he acts, and she is passive.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> 'They (who transgress Arayos, i.e. forbidden 
          relations) will get Kares (excision), the souls that do' 
          shows that both do an action!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Both are punished because both enjoy the act; 
          but only he does an action.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ABNORMAL BEHAVIOR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon (the one holding the beam) was 
          first...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> If a cow was crouching in a Reshus 
          ha'Rabim, and another cow was walking and it kicked the 
          crouching cow it is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the crouching cow kicked the walking cow, it 
               is liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Our Mishnah supports Reish Lakish.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Shimon was in front, and the jug 
               broke on the beam, Shimon is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Shimon stopped, he must pay.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is like a crouching cow kicking a walking 
               cow, and the damager must pay.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> That part of Reish Lakish's law is obvious. 
          The Mishnah opposes what may be inferred from Reish 
          Lakish!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reish Lakish obligated the crouching cow when it 
               kicked. Had it passively damaged, it would be 
               exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In the Mishnah, Shimon is liable for passive 
               damage!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> In the Mishnah, Shimon's beam blocked the 
          entire road, making it impossible for Reuven to pass;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding the cows, there was room to walk to the 
               side of the crouching cow.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Rather, the Reisha supports Reish Lakish.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Shimon was walking in back of 
               Reuven, and the beam broke the jug, Shimon must pay;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Reuven stopped, Shimon is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is like the walking cow damaging the 
               crouching cow, and the Mishnah says, he is exempt!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> In the Mishnah, Shimon walked normally. In 
          Reish Lakish's case, the walking cow should not have 
          kicked.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>COLLISIONS IN THE RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven was running in a Reshus ha'Rabim 
          and Shimon was walking, or both were running, and they 
          damaged each other, they are exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara):</font></b> Our Mishnah is unlike Isi ben Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Isi ben Yehudah):</font></b> The one running is 
               liable, for this is abnormal.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Isi admits that Erev Shabbos, Bein ha'Shemashos 
               (the beginning of Shabbos), he is exempt, for he is 
               allowed to run.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> The Halachah follows Isi.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yochanan holds that the Halachah follows a 
          Stam (anonymous) Mishnah. Our Mishnah is unlike Isi!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Our Mishnah is like Isi. It discusses Bein 
          ha'Shemashos of Erev Shabbos.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source to say so?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Reisha says if both were running, they are 
          exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why is this needed? Even if one runs 
               and the other walks, he is exempt. All the more so, 
               if both are running they are exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, the Mishnah teaches that if 
               Reuven was running and Shimon was walking, Reuven is 
               exempt. This refers to Erev Shabbos, Bein 
               ha'Shemashos. At any other time, Reuven is liable;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If both were running, even during the week they 
                    are exempt.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Isi admits that Erev Shabbos, Bein 
          ha'Shemashos (the beginning of Shabbos), he is exempt, 
          for he is allowed to run.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why is he allowed?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> This is like R. Chanina;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> On Erev Shabbos, Bein ha'Shemashos, R. Chanina 
               would say 'come, let us go out to greet the bride, 
               the queen.'
<br>
<br>

sjt:
<font><b>1) WALKING ON THE OTHER SIDE OF THE ROAD TO AVOID A COLLISION</b></font><b>
<br>QUESTION:</b> The Mishnah states that when one who was carrying a beam in the public domain suddenly stopped, causing the beam to break the barrel carried by the person behind him, the one who stopped is responsible. The Gemara explains that in this case the person carrying the beam stopped in a way in which the beam blocked the entire width of the road and the collision was unavoidable.
</p><p>
The Gemara adds, however, that if the beam did not block the road, the barrel carrier should have walked around the beam to the side of the road not blocked by the beam. If he failed to do so, the beam carrier is absolved from responsibility even if he stopped and caused the barrel to break.
</p><p>
<b>TOSFOS</b> (DH v'Im) asks that according to the Gemara's explanation, the second case of the Mishnah is difficult to understand. The Mishnah states that if the person carrying the barrel was first, and he stopped in the middle of the street and caused the person carrying the beam to crash into his barrel, the beam carrier is exempt from payment. Why should he be exempt? A barrel does not extend across the entire width of a road! The beam carrier should be obligated to pay since he should have traveled on the unblocked side of the road.
</p><p>
Tosfos quotes the <b><b><b>RI</b></b></b> who answers that the second person is not always able to be careful not to crash into the person in front of him when that person stops suddenly. This is why, when the fallen beam is not blocking the entire width of the road, the Mishnah faults the barrel carrier (who was walking behind the fallen beam carrier) for not walking to the other, unblocked side of the road. However, in the case of the beam carrier who was walking behind the barrel carrier, the beam being carried extends across the entire width of the road, and thus the beam carrier could not avoid the fallen barrel carrier by walking to the other side of the road. 
</p><p>
<b>TOSFOS</b> (DH d'Ramya) asks that the Mishnah regarding Kadarim, potters who trip over each other (31a), teaches that the one who tripped and stayed on the ground is responsible for the damages suffered by the others who tripped over him. Why does the above logic not apply to potters as well? The potter coming up from behind should have avoided falling by walking on the side of the road that was unblocked! Tosfos adds that one cannot answer that the first potter is obligated for damages only when he blocked the entire road, because the Gemara (31b) says that he must block the entire road only in a case in which he is obligated to pay for the damages of multiple people, but not in a case in which one person tripped over him. The Gemara implies that when one person tripped over him, he is obligated to pay for the damages of the second person even if he did not block the entire road. 
</p><p>
Tosfos answers that in the case of the potters, the one who walked behind the first potter who tripped did not have a chance to go to the other side of the road, because when the first one fell the second one did not see him. The first one retains sole responsibility.
</p><p>
The <b>MAHARSHA</b> asks that the words of Tosfos here seem to contradict the words of the previous Tosfos. Tosfos (DH v'Im) writes that the one walking second is expected to avoid any possible collision by walking on the other side of the road if possible. Only when it is not possible to walk to the other side of the road (such as when he is carrying a beam that takes up the entire width of the road, or when he is walking behind a person carrying such a beam) is the second person not responsible to avoid a collision. Why, then, is the second potter not responsible for his own damage, since he could have walked on the unblocked side of the road?
</p><p>
<b>ANSWER:</b> The <b>MAHARSHA</b> answers that potters do not have to suspect that the person in front of them will trip and that they will trip over him, because this is not a common occurrence. In contrast, when two people are carrying heavy objects, accidents are common, and thus the one behind the other needs to be wary to avoid an accident. If one person who is carrying a barrel is walking behind another person who is carrying an unwieldy beam, he should be careful to walk on the other side of the road, because it is not uncommon that a person stops to readjust his load or for other reasons. This is why the person who is carrying the barrel is responsible for his own damage if he failed to be cautious. 
</p><p>
Based this logic, the <b>PNEI YEHOSHUA</b> answers a similar question on the Gemara. The Mishnah earlier (27a) teaches that if one falls on a pot in the public domain, the owner of the pot is responsible for any damages. Why is the owner of the pot liable? When one walks in the public domain and sees a pot on the ground, he should go around the pot to the other side of the road! The Pnei Yehoshua answers that a person does not have to suspect that there are pots in the road. Since people do not have permission to place their pots in the road, it is not something which one must be wary of. In contrast, people have permission to carry things through the public domain. Therefore, when one sees a person carrying a load and suspects that there could be a collision if something goes wrong, he should move to the other side of the road.
</p><p>
(The Gemara earlier (27b) says that people are generally not expected to notice objects on the ground that are not supposed to be there. Consequently, it is not their fault that they did not notice the pot. On the other hand, if an ox trips over a fallen animal during the daytime, the owner of the fallen animal is exempt from the damage to the ox. This is because an animal always looks down and thus the ox should not have tripped on something lying on the ground. See Tosfos to 27b, DH Lefi.) (Mordechai Zvi Dicker)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Some say that he explicitly said '... to greet 
                    Shabbos, the bride, the queen.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yanai would cloak himself, stand and say 'come 
               bride, come bride'.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DAMAGE IN A DIFFERENT DOMAIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a man was chopping wood in a Reshus 
          ha'Rabim and damaged in a Reshus ha'Yachid, or vice-
          versa, or was chopping in a Reshus ha'Yachid and damaged 
          in a different Reshus ha'Yachid, he is liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara):</font></b> The Mishnah must teach all three cases.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it taught only when he was in a Reshus 
               ha'Yachid and damaged in a Reshus ha'Rabim, one 
               might have thought only there he is liable, for many 
               people frequent the Reshus ha'Rabim;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it taught only when he was in a Reshus 
               ha'Rabim and damaged in a Reshus ha'Yachid, one 
               might have thought that only there he is liable, for 
               he was not allowed to chop there;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Had it taught only these cases, one might have 
               thought that they are liable because in one case 
               many people frequent there Reshus ha'Rabim, and in 
               the other case he was not allowed to chop there, but 
               from a Reshus ha'Yachid to a Reshus ha'Yachid, he 
               would be exempt. The Seifa teaches that this is not 
               so.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>EXILE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a man entered Reuven's carpentry shop 
          without permission, and a piece of wood flew off and 
          killed him, Reuven is exempt;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he had permission to enter, Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #1 - Question:</font></b> What is his liability?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (R. Yosi bar Chanina):</font></b> He is liable in the four 
          payments, and exempt from exile, for this does not 
          resemble a forest.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In a forest, each enters his own domain. Here, 
               the victim entered Reuven's domain.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> In a forest, (the victim did not ask 
          permission, yet) we consider it as if he had the 
          damager's permission to enter. Here, where he had 
          explicit permission, all the more so Reuven should be 
          exiled!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> He is exempt from exile, i.e. he does 
          not merit refuge (the Go'el ha'Dam can kill him 
          anywhere).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yosi bar Chanina taught that he is not exiled 
               because he is Shogeg close to Mezid.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If the Shali'ach of Beis Din (to 
          lash people) gave an extra lash and killed the person, he 
          is exiled.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is close to Mezid, for he should realize 
               that an extra lash can kill someone!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Rav Simi of Nehardai):</font></b> The case is, he erred 
          in the count.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> The one who whips does not count!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> The greatest of the judges reads (the 
               verses), the second counts, and the third says 
               'strike him'.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Rav Simi of Nehardai):</font></b> Rather, the judge 
          erred in the count.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If Reuven threw a stone to a Reshus 
          ha'Rabim and killed someone, he is exiled.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is close to Mezid, for he should realize 
               that many people are in a Reshus ha'Rabim!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Shmuel bar Yitzchak):</font></b> The case is, Reuven 
          was destroying his wall.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> He should look (that no one is coming)!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #1:</font></b> He was destroying it at night.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Even at night, he should look!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #2:</font></b> He was destroying it during the day into a 
          waste-heap.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> What sort of waste-heap is this?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> If people frequent it, he is (close 
               to) Mezid!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> If people don't frequent it, he is 
               (close to) Ones!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> People normally frequent it at 
          night. Occasionally they frequent it by day.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>ONE WHO ENTERED THE RESHUS IN WHICH HE WAS DAMAGED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #2 - Rav Papa citing Rava (Beraisa):</font></b> If a man 
          entered Reuven's carpentry shop without permission, and a 
          piece of wood flew off and killed him, Reuven is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yosi bar Chanina):</font></b> He is exempt from exile, but is 
          liable to pay four payments.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Version #1 exempts from exile even when the victim had 
          permission to enter. All the more so, it exempts when the 
          victim had no permission!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Version #2 exempts from exile when the victim had 
               no permission to enter. If he had permission, Reuven 
               would be exiled.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If a man entered a smith's shop, 
          and a spark flew off and killed him, the smith is exempt, 
          even if the victim entered with permission.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> That Beraisa discusses an apprentice.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Are apprentices destined to be killed?!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The teacher was asking him to leave, and he 
          refused.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Is he destined to be killed because he 
          refused to leave?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The teacher thought that he had left.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If so, even if he was not an apprentice, the 
          smith is exempt!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Other people do not fear the smith, so he 
          should check that they left. An apprentice fears the 
          smith, so he could assume that he left.
<br>

sjt:
<p>
<font><b>2) WHEN 'GALUS' IS INSUFFICIENT</b></font><b>
<br>QUESTION:</b> The Beraisa states that if a person enters a carpenter's store without permission and some wood struck by the carpenter hits him and causes him to die, the carpenter is exempt. However, if he enters with permission, the carpenter is liable. Rebbi Yosi bar Chanina explains that this means he is liable for damages, but he is exempt from Galus (exile to one of the cities of refuge reserved for people who kill accidentally). The carpenter is exempt from Galus because the case of accidental killing in which the Torah teaches the obligation of Galus is a case in which a person is accidentally killed in the forest by a woodchopper. In that case, the forest is everyone's domain. In this case, however, the victim and the perpetrator are in the killer's domain. 
</p><p>
Rava (or Rabah according to the <b>BACH</b>) argues that if, when they are in a forest, where it is likely that the victim entered with the permission of his friend, the killer is obligated to go to Galus, then certainly in a case in which the victim had explicit permission to enter, the killer must go to Galus.
</p><p>
Rava therefore explains that when Rebbi Yosi bar Chanina says that he is exempt from Galus, he means that Galus is <i>insufficient</i> for him; it will not provide him with the degree of atonement which he needs, because he is considered 'Karov l'Mezid' -- 'close to an intentional killer.' (Such a person is not protected by the city of refuge, and the killer's relatives may hunt him down at any time.) 
</p><p>
<b>TOSFOS</b> (DH d'Lo Sagi) asks that Rava's words seem to contradict the Mishnah in Makos (8a). The Mishnah there states that if one throws a stone into his courtyard and it kills someone, the thrower must go to Galus if the victim had permission to be there. If the victim did not have permission to be there, the killer does not go to Galus. According to Rava, however, when a person had permission to be there, Galus is insufficient!
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that there are two different types of cases in which the victim enters 'with permission.' The Mishnah in Makos (8a) refers to a person who has actual legal rights (whether because he purchased them or received them as a gift) to be in the courtyard. However, he is not always there, and the stone thrower did not check whether or not he was there before he threw the stone. The Beraisa here refers to a case in which permission was granted for the person to be there only on this occasion. Since the carpenter granted permission at this moment for the other person to enter, he should assume that the person is there. If he is not careful, he is considered 'Karov l'Mezid' and Galus is insufficient to atone for him. 
</p><p>
(b) A similar answer is given by <b>TOSFOS RABEINU PERETZ</b>, who writes that the difference is whether or not the killer saw that the victim was there or not. In the case in Makos, he did not see that anyone was there, while in this case he saw that the person was there and still he was not careful.
</p><p>
(c) The <b>MAHARSHA</b> and <b>PNEI YEHOSHUA</b> answer that once Tosfos establishes that the case in Makos (8a) is where the victim bought the rights to be there, there is another difference between the two cases other than the difference given by Tosfos. In Makos, each person was considered to be in his own domain, just as each person is considered to be in his own domain when he enters the forest, and therefore Galus is mandated. In the case of the Gemara here, giving momentary permission to enter is not the same as being in one's own domain. The victim is considered to be in the killer's domain and not in his own domain. This is another reason why Galus is not the appropriate punishment. (Y. Montrose)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO ENTERED THE RESHUS IN WHICH HE WAS DAMAGED (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #3 (Rav Zvid - Beraisa):</font></b> 'And it found' 
          excludes a victim who brought himself to be damaged;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Eliezer ben Yakov says, this teaches that if Reuven 
          threw a stone, and Shimon stuck out his head and was 
          killed, Reuven is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(R. Yosi bar Chanina):</font></b> He is exempt from exile, but he 
          is liable in four payments of damage.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Version #3 obligates for four damages even when the 
          victim brought himself to be damaged. All the more so, it 
          obligates in the cases of Versions 1 and 2 (when the shop 
          owner knew that someone entered, he is more negligent);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Versions 1 and 2 obligate in four damages when 
               the shop owner knew he had entered, but if Shimon 
               brought himself to be damaged, Reuven would be 
               totally exempt!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If workers came to demand their wages from 
          their boss, and one was bitten by the boss' dog, the boss 
          is exempt;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Others say, workers are entitled to demand payment.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the boss can be found in the city, why do 
               Others permit them to enter to demand wages?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the boss is usually at home, what is the 
               reason for the first Tana?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the boss is sometimes at home. The 
          workers called at the porch, and the boss said 'yes'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first holds that 'yes' means 'come in.' The 
               second Tana holds that 'yes' means 'wait there'.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	The following Beraisa is like the opinion that 'yes' 
          means 'wait there'.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a worker came to demand his wages from 
          his boss, and he was gored or bitten by the boss' ox or 
          dog, the boss is exempt, even though the worker had 
          permission to enter.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why is he exempt?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the boss said 'yes', and this 
          means, 'wait there'. (The Beraisa means 'even though the 
          worker thought that he had permission to enter').
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>OXEN THAT DAMAGED EACH OTHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Two oxen damaged each other. If they are 
          Tamim, they (i.e. whichever damaged more) pay half the 
          excess damage;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If they are Mu'adim, they pay all the excess damage;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If one is Tam and one is Mu'ad, if the Mu'ad damaged 
          more, it pays all the excess damage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Tam damaged more, it pays half the excess 
               damage.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Similarly, if two men damaged each other, they pay all 
          the excess damage.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If a man and a Mu'ad ox damaged each other, they pay 
          all the excess damage.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	If a man and a Tam ox damaged each other, if the man 
          damaged more, he pays all the excess damage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Tam damaged more, it pays half the excess 
               damage;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, even a Tam that damaged a man pays 
               all the excess damage.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> 'Like this law will be done to it' 
          - just like when an ox damaged an ox, a Tam pays half the 
          excess damage, and a Mu'ad pays full damage, the same 
          applies to a Tam or Mu'ad that damaged a man;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	R. Akiva says, 'like this law' - like the latter law 
          (Mu'ad, which was mentioned last), not like the former 
          (Tam).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps (a Tam that damaged a man) pays 
          even more than its value!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'Will be done to it' - it pays only from its 
          body.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What do Chachamim learn from 'this'?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> This exempts the ox from the four damages 
          (other than Nezek).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Akiva's source for this?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> He learns from 'a man who will wound his 
          fellowman', not an ox that will wound a man.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim hold that if we had only R. Akiva's 
               verse, one might have thought that it is exempt only 
               for pain (for the victim does not lose money due to 
               it), but it pays medical expenses and Sheves. 
               Therefore, we need also 'this'.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PAYMENTS OF A TAM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If an ox worth 100 gored an ox worth 200, 
          and the carcass is worthless, the victim takes the 
          damager.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara):</font></b> The Mishnah is like R. Akiva.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yishmael):</font></b> The ox is evaluated in 
               Beis Din.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, the ox itself is taken.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yishmael holds that the victim is like a 
               creditor. The damager owes him money; 
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b>R. Akiva holds that they are (usually) partners in 
               the ox that damaged (the victim's share is according 
               to the damage. In this case, he entirely owns the 
               damager.)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> They argue about 'they will sell the live ox and 
               split its money.' R. Yishmael holds that this is an 
               instruction to Beis Din;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Akiva says, the verse addresses the victim and 
                    the damager.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Practically, what difference is there between 
          R. Yishmael and R. Akiva?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about if the victim made the 
          damaging ox Hekdesh (According to R. Akiva, it takes 
          effect. According to R. Yishmael, it does not.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> According to R. Yishmael, if the 
          damager sold the ox, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since the victim is only a creditor, the sale is 
               valid;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since the victim has a lien on the ox, it is 
               invalid!
<br>
<br>

sjt:
<font><b>1) TWO OXEN WHICH CAUSED DAMAGE OF EQUAL VALUE TO EACH OTHER</b></font><b>
<br>QUESTION:</b> The Mishnah states that if two oxen cause damage to each other and the damages are assessed to be of equal value, no payment is rendered. If the damaged caused by one is more than the damage caused by the other, its owner must pay the difference.
</p><p>
<b>TOSFOS</b> (DH Shnei) is bothered by a question. It seems obvious that if the damages are equal, the two owners should not have to pay each other equal amounts. Similarly, it seems obvious that if there is a difference between the values of the damages, only the difference has to be paid. Why is it necessary for the Mishnah to teach these obvious laws? 
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ROSH</b> (3:13) answers that <b>RASHI</b> (DH Mu'ad) understands that even in a case of a Tam and a Mu'ad who gored each other, the calculation of the value of the damages is made based on the entire amount of the damage, even though the owner of the Tam normally pays for only half of the value of the damage. Without the Mishnah, one would have thought that the calculation is based on the amounts which each owner is liable to pay, and not on the actual value of the damage. 
</p><p>
For example, if Reuven's Tam ox and Shimon's Mu'ad ox were fighting, and Reuven's ox caused forty Dinar of damage while Shimon's caused fifty Dinar of damage, normally Shimon would owe Reuven thirty Dinar -- fifty Dinar minus the twenty Dinar's worth of damage (Chatzi Nezek of forty Dinar) which Reuven should have to pay. However, the Mishnah teaches that Shimon owes Reuven only ten Dinar, the difference between the actual value of each ox's damage. 
</p><p>
The <b>GIDULEI SHMUEL</b> points out that if one of the animals is owned by someone who has no liability at all, such as a minor, this would not be the case. Alternatively, if one of the oxen was being watched by a caretaker who accepted responsibility for any damage the ox causes, but not for damages that it suffers, this law would not apply. The caretaker would have to pay for the damages the ox causes, but the payment from the owner of the other ox would go directly to the actual owner of the ox in the care of the caretaker. Therefore, there would be no cancellation of payments of damages.
</p><p>
(b) <b>TOSFOS</b> clearly disagrees with the Rosh. Tosfos says that the net payments cancel each other out, and not the amount of actual damage. The Rosh quotes Tosfos as saying that the Mishnah indeed expresses no novel teaching. 
</p><p>
(c) According to our text of Tosfos, Tosfos explains that the Mishnah indeed teaches a novel point according to both Rebbi Akiva and Rebbi Yishmael (end of 33a). According to Rebbi Akiva, who rules that an ox that damages may even be declared Hekdesh by the victim (since one collects 'mi'Gufo'), one would think that the full value of the damage done by the Tam is automatically on lien to the victim. For example, in a case where two oxen attack each other and the Tam does fifty Dinar worth of damage, one might think that the victim may declare as Hekdesh twenty-five Dinar worth of the ox. The Mishnah therefore teaches that if the other ox did twenty-five Dinar worth of damage to the Tam, the damages are canceled out and the victim has no ability to be Makdish the Tam. 
</p><p>
Tosfos adds that the Mishnah may be teaching an important point according to Rebbi Yishmael as well. Since a Tam pays 'mi'Gufo' -- 'from its body,' one might have thought that in a case where two oxen damage each other and one of the oxen runs away, the owner of the runaway ox has an interesting claim: he may claim that he should still receive the damages done to his ox, while he does not have to pay for any damages that his ox did because his ox ran away and its value cannot be collected. The Mishnah therefore teaches that the damages are canceled out, meaning that the owner of the other ox automatically deducts the damage done to his ox even though the other ox is not present to collect the damages 'mi'Gufo.' (Mordechai Zvi Dicker)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> The sale is invalid.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> The sale is valid.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The sale is valid, but the victim may collect 
          it from the buyer.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If the victim may collect it from the buyer, 
          in what sense is it sold?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The buyer may work with it until the victim 
          takes it. (Rashi - if the buyer worked with it, he does 
          not pay the victim for the work.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Inference:</font></b> If a debtor sells Metaltelim, Beis Din takes 
          them from the buyer to pay the creditor?!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Damages are a special case. It is as if 
          the damaging animal is an Aputiki (collateral designated 
          for collection of the loan).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Rava taught that if a man made his slave an 
          Aputiki and sold it, Beis Din collects from the slave. If 
          he made his ox an Aputiki and sold it, Beis Din does not 
          collect from it!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> They collect from a slave because it becomes 
          known that it was made an Aputiki. (The buyer knew that 
          it might be collected. Word does not spread when an ox is 
          made an Aputiki);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When an ox gores, it becomes known, for people 
               call it a goring ox!
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>SALE OF A TAM OX THAT DAMAGED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	(Rav Tachlifa bar Ma'arava - Beraisa) If he sold the 
          ox, it is not sold. If he made it Hekdesh, it is Hekdesh.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Who sold the ox?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The damager sold it. Since his sale 
               is invalid, the Beraisa must be like R. Akiva.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> If he made it Hekdesh, it is not 
               Hekdesh. This is like R. Yishmael!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, the victim sold it. Since his sale 
          is invalid, the Beraisa be like R. Yishmael.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> If he made it Hekdesh, it is not Hekdesh. 
          This is like R. Akiva!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, the damager sold it. The Beraisa is 
          like both Tana'im.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he sold it, it is not (permanently) sold. This 
               is even according to R. Yishmael, for the victim has 
               a lien on it (and can collect it);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he made it Hekdesh, it is Hekdesh. This is 
               even according to R. Akiva, due to R. Avahu's law;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Avahu):</font></b> (If one was Makdish his property, and 
                    creditors had a lien against it, really, it is 
                    not Hekdesh. The creditor takes the property, 
                    and pays a small amount to Hekdesh. It is not a 
                    real redemption.) This is a decree, lest people 
                    say that Hekdesh becomes Chulin without 
                    redemption.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a Tam damaged, before Beis Din judges the 
          case, if it was sold or made Hekdesh, this stands. If it 
          was slaughtered or given for a gift, what was done was 
          done;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> After Beis Din judges the case, if it was sold or 
               made Hekdesh, this is invalid. If it was slaughtered 
               or given for a gift, nothing happened;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If (other) creditors collected it, whether the 
               damager borrowed before or after the damage, the 
               collection is invalid, for a Tam pays only from 
               itself.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If a Mu'ad damaged, before or after Beis Din judges the 
          case, if it was sold or made Hekdesh, this stands. If it 
          was slaughtered or given for a gift, what was done was 
          done;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If creditors collected it, whether the damager 
               borrowed before or after the damage, the collection 
               is valid, because a Mu'ad pays from the owner's 
               pocket.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Explanation:</font></b> (Before Beis Din judges the case,) if he 
          sold it, it is sold. I.e. if the damager sold it, it is 
          sold regarding work;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	If he made it Hekdesh, it is Hekdesh. I.e. a redemption 
          is required, like R. Avahu taught. (Hekdesh Damim 
          (something not used for the Avodah, but Hekdesh sells it 
          and uses the money) cannot overcome the victim's lien on 
          it.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	If it was slaughtered or given for a gift, what was 
          done was done.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, a gift stands. The receiver may work 
          with it until it is collected;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, if it was slaughtered, the victim may 
               still collect, from the meat!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa) Suggestion:</font></b> Perhaps the victim can 
                    collect only when the ox is alive!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> 'They will sell the ox' applies 
                    even after slaughter.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Shizbi):</font></b> It says 'what was done was done', 
          for a slaughtered animal is worth less.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Inference (Rav Huna brei d'Rav Yehoshua):</font></b> If Reuven 
          damages land on which Shimon has a lien, he is exempt.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Obviously, we can infer this!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that we cannot infer 
          this. Here, the slaughterer only took the wind (life) out 
          of the animal.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> Rabah already taught this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> If Reuven burned Shimon's documents, he 
               is exempt.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that there he can say 'I 
          burned only paper', but for a real action, such as 
          digging pits on a field (which decreases the value), he 
          would be liable. The case of a damaging ox teaches that 
          this is not so
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If creditors collected it, whether the 
          damager borrowed before or after the damage, the 
          collection is invalid, because a Tam pays only from 
          itself.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Question #1:</font></b> Granted, when he borrowed after the 
          damage, the victim has precedence to collect;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>However, when he borrowed before the damage, the 
               creditor should have precedence!
<br>

sjt:
<p>
<font><b>2) SELLING A 'TAM' THAT GORED </b></font><b>
<br>OPINIONS:</b> The Gemara quotes Rav Nachman who says that a Tam that gored may not be sold, even according to Rebbi Yishmael who rules that its body is not actually owned by the victim. The Gemara asks that a Beraisa seems to contradict Rav Nachman's statement. The Beraisa explicitly says that if one sells the ox, the sale is valid. 
</p><p>
The Gemara answers that the Beraisa means that if the owner sold his ox for plowing, the sale is valid even though the sale is not permanent.
</p><p>
What does the Gemara's answer mean?
</p><p>
(a) The <b>RASHBA</b> explains that the owner is allowed to sell the animal for plowing, and it is not considered stealing from the victim. The animal reverts to the possession of the victim only when Beis Din decides that this is the appropriate verdict.
</p><p>
(b) <b>RASHI</b> (DH l'Ridya) explains that if the buyer used the ox for plowing, he does not have to pay the victim for this usage. He merely must give the ox back to the victim. 
</p><p>
The Rashba has difficulty with Rashi's explanation. Rashi implies that according to Rebbi Akiva, who rules that the animal is already considered to belong to the victim, the buyer would have to pay the victim for the value of the plowing. However, this clearly is not the law. The Gemara later (96b) states that if one steals an animal and plows with it, he does not have to pay the owner for this usage. He is required merely to return the stolen object. A thief is never obligated to pay for the extra benefit he received from the object he stole. Even when the buyer does not know that the ox he purchased is a stolen one, he still has the status of a thief who must return merely the actual object and not the value of the benefit received. Accordingly, there is no reason why one should think that he should have to pay according to Rebbi Akiva.
</p><p>
The Me'iri defends Rashi's explanation. In this case, the buyer of the ox is not considered a thief. The entire purchase is considered a 'Mekach Ta'us' -- 'a mistaken purchase,' since the buyer would not have bought the ox had he known that it was stolen. Accordingly, the ox goes back to the owner and he must pay for the value of the usage of the ox (as indeed is the law in a case of Mekach Ta'us). 
</p><p>
(It should be noted that the Gemara seems to understand that this sale for plowing is valid only according to Rebbi Yishmael. According to Rebbi Akiva, the victim already owns enough of the ox to make it Hekdesh, and thus the sale made by the original owner is invalid. This indeed is the opinion of <b>TOSFOS</b> (33a, DH Hikdish), and it also seems to be the simple explanation of the Gemara, as the Gemara asks its question only according to Rebbi Yishmael. 
<br> 
<br>However, the <b>RAMBAM</b> (Nizkei Mamon 8:6) understands that the sale is valid for plowing even according to Rebbi Akiva. Many commentators discuss why the Rambam understands that the sale is valid even according to Rebbi Akiva. The <b>LECHEM MISHNEH</b> answers that although the Gemara's question is according to Rebbi Yishmael, since only Rebbi Yishmael would maintain that the sale is totally valid (while according to Akiva the victim already owns half of the animal), nevertheless even Rebbi Akiva agrees that the sale is valid for plowing (based on the explanation above). See also <b>CHAZON ISH</b> to Bava Kama 3:17.) (Mordechai Zvi Dicker)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PRIORITY TO COLLECT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question #2:</font></b> Even when he borrowed after the damage, 
          since the creditor grabbed the ox first, he should 
          collect from it!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Suggestion:</font></b> This teaches that if a creditor collected 
          before earlier creditors (and there is not enough to pay 
          them all), his collection is invalid!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (and answer to both questions):</font></b> No. If a 
          creditor collected before earlier creditors, his 
          collection stands;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A damaging ox is different. The victim says, even if 
               you consider that the ox was yours from when you 
               lent him, I collect it. (Regarding a Tam, the victim 
               collects from the damager.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN THE OXEN CHANGE IN VALUE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If an ox worth 200 gored an ox worth 200, 
          and the damage was 50, and the ox rose in value to 400, 
          but if not for the damage, it would now be worth 800, the 
          damager pays according to the time of damage (50. If it 
          is Tam, it pays 25.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If the victim went down in value, payments are 
          according to the time of judgment.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If the damager rose in value, it pays according to the 
          time of damage. If it went down in value, it pays 
          according to the time of judgment.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> 'If the damager rose in value, it pays like 
          the time of damage' is like R. Yishmael, who says that 
          the victim is a regular creditor (he has no partnership 
          in the animal);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Seifa says 'if it went down in value, it pays 
               like the time of judgment.' This is like R. Akiva, 
               who says that they are partners!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Is the Reisha like R. Yishmael, and the Seifa 
               like R. Akiva?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The entire Beraisa is like R. Akiva. The case 
          is, he fattened the ox.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why must the Reisha teach that if the 
          damaged ox rose in value to 400, the damager pays 
          according to the time of damage? This is obvious!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> The Reisha applies whether or not he 
          fattened it. The Chidush is when it rose in price by 
          itself;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Seifa is only when he fattened it.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case when the damaged animal went 
          down in value?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If this was because he overworked it, that is no 
               reason for the damager to pay more!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> It went down due to the wound. It is 
          all due to the goring.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>SPLITTING THE OXEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Meir):</font></b> If an ox worth 200 gored an ox 
          worth 200, and the carcass is worthless, in this case the 
          Torah said 'they will sell the live ox and split the 
          money.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	R. Yehudah:</font></b> You fulfilled that verse, but not 'also the 
          dead ox they will split'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, an ox worth 200 gored an ox worth 200, 
               and the carcass is worth 50. Each gets half the live 
               ox and half the dead ox.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Beraisa - R. Yehudah):</font></b> If an ox worth 200 
          gored an ox worth 200, the carcass is worth 50, each gets 
          half the live ox and half the dead ox. This is the case 
          the Torah discusses;
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Meir:</font></b> No, the Torah discusses when both were worth 
          200, and the carcass is worthless - 'they will sell the 
          live ox and split the money';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Also the dead ox they will split' teaches that 
               the damager pays half the difference between the 
               value of the gored ox when alive and after death.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> (When the carcass is worth 50,) both Tana'im 
          agree that both parties end up with 125. What do they 
          argue about?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> They argue about when the value of 
          the carcass declines. R. Meir says that the victim loses. 
          R. Yehudah says that the damager shares the loss.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If so, R. Yehudah holds that a Tam is 
          more stringent than a Mu'ad! (We learned (10a) that 
          regarding a Mu'ad, the victim suffers the entire loss.)
<br>
<br>

sjt:
<font><b>1) ASSESSING THE DECREASE IN VALUE AS A RESULT OF DAMAGE WHEN THE DAMAGED ITEM APPRECIATES IN VALUE</b></font><b>
<br>QUESTION:</b> The Beraisa discusses a case in which an ox damages another ox which was originally worth 200 Zuz. The damage is assessed at 50 Zuz. Later, however, the damaged ox appreciates and its value rises to 400 Zuz, well above the value of the damage. The Beraisa states that the owner of the ox is still obligated to pay for the damages because the damaged ox would have been worth 800 Zuz had it not been damaged. (The <b>S'MA</b> (CM 404:2) explains that the owner of the attacking ox is not obligated to pay for the loss in value from 800 to 400, since that loss of value is merely indirect damage. He must pay only for the actual value of the damage (50 Zuz).) 
</p><p>
What will be the law if the ox rises in value, but the damage does not prevent it from reaching its potential value? For example, the damage renders the ox unable to plow well, but the rise in value is due solely to an increase in the price of meat. In such a case, the ox is now worth far more than its original value, and the damage done does not play any role in minimizing its worth. Is the owner of the attacking ox still obligated to pay for the value of the damage?
</p><p>
<b>ANSWER: RAV ARYEH LEIB SHTEINMAN</b> shlit'a (in <b>AYELES HA'SHACHAR</b>) infers from the Gemara that the owner indeed does not have to pay for the damages. The Beraisa's reasoning clearly is that the other ox should have been worth 800 Zuz if not for the damage caused by this ox. If the increase in value would have been the same with or without the damage, the owner is exempt from paying for the damages his ox caused. Although his animal did damage at the time it gored, he is exempt because the decrease in value as a result of the damage did not last. (Mordechai Zvi Dicker)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> That is true!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah - R. Yehudah):</font></b> (If the owner guarded the 
                    animal poorly) a Tam is liable, and a Mu'ad is 
                    exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rejection R. Yehudah said so only about guarding 
               the ox, for the verses say so;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We have no source that a Tam is more stringent 
                    regarding payments!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  (Beraisa - R. Yehudah) Suggestion:</font></b> If a 
                    (Tam) ox worth 100 (Zuz) gored an ox worth 20, 
                    and the carcass is worth four, each gets half 
                    the live ox and half the dead ox.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Rejection:</font></b> This cannot be! A Mu'ad is more 
                    stringent than Tam, and Mu'ad does not pay more 
                    than the damage!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (R. Yochanan):</font></b> They argue about when the 
          carcass rose in value.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir holds that the victim profits. R. Yehudah 
               holds that the damager shares the profit (i.e. he 
               pays less).
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	This explains R. Yehudah's Havah Amina:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Torah was lenient on the damager, to 
               allow him half the increased value of the carcass. 
               Perhaps if an ox worth 20 gored an ox worth 100, and 
               the carcass is worth 50, that each gets half the 
               live ox and half the dead ox!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Where do we find that the damager 
               profits? Also, it says 'he will pay', he will not 
               receive!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why must we also bring the verse?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that when the 
               victim has no loss, e.g. his animal was worth 20, 
               and the carcass is worth 30, then both victim and 
               damager would gain five. The verse teaches that the 
               damager never gains.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (R. Acha bar Tachlifa):</font></b> If so, R. Yehudah (has 
          no source that the damager pays half the decrease due to 
          the goring. Rather, we sell both and split the money, 
          even when the damager is worth more than the victim. If 
          so, he) holds that a Tam sometimes pays more than half-
          damage. However, it says 'they will sell the live ox and 
          split the money' (and R. Yehudah (37a) agrees that it 
          pays half-damage)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> No. R. Yehudah agrees that the victim 
          gets half the decrease in value.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> We learn this from 'also the dead ox they 
          will split';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah learned from this verse that each gets 
               half the live ox and half the dead ox!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Had the verse come to teach only that, it would 
          have said 'and the dead ox they will split';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, it says 'also the dead ox they will 
               split' to teach both laws.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>MONETARY LIABILITY OF ONE LIABLE TO DIE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Sometimes Reuven is liable for his ox' 
          action and exempt for his own, and sometimes vice-versa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If his ox caused embarrassment, he is exempt. If 
               he embarrassed, he is liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If his ox destroyed a limb of Reuven's slave, he 
               is exempt. If he did so, he is liable;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If his ox wounded his father or mother, or burned 
               something on Shabbos, he is liable. If Reuven did 
               so, he does not pay, for he is liable to die.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - R. Avahu - Beraisa):</font></b> All who ruin (on 
          Shabbos) are exempt, except for one who wounds or burns.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (R. Yochanan):</font></b> Don't teach this way. It is 
          wrong!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It could be true only if one wounds to feed the 
               blood to his dog, or burns to get the ashes.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> (against R. Yochanan - Mishnah): If his ox 
          burned something on Shabbos, he is liable. If he did so, 
          he does not pay, for he liable to die.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case in which he burned is like when his ox 
               burned. Just like his ox does not burn for a need, 
               also he, and he is liable to die!
<br>

sjt:
<p>
<font><b>2) THE DISPUTE BETWEEN REBBI AVAHU AND REBBI YOCHANAN</b></font><b>
<br>OPINIONS:</b> Rebbi Avahu said in the presence of Rebbi Yochanan that one who performs any Melachah in the form of a destructive act (Mekalkel) on Shabbos is exempt, except for an act of Chovel (he wounds a living thing) or Mav'ir (he lights a fire). When Rebbi Yochanan heard this, he said, 'Go say that outside the study hall,' meaning that there is no place for such a statement inside the study hall. Rebbi Yochanan then said that one is liable only for performing the Melachos of Chovel and Mav'ir when he accomplishes something constructive with the act. For example, one is liable for Chovel when he needs the blood of the animal to feed to his dog, and one is liable for Mav'ir when he wants the ashes of the object he burns. If one merely wounds a creature or lights a fire on Shabbos for no constructive purpose, he is exempt because it is an act of Mekalkel (which is forbidden only mid'Rabanan).
</p><p>
What is the basis of the dispute between Rebbi Avahu and Rebbi Yochanan?
</p><p>
(a) <b>TOSFOS</b> (DH Chovel) quotes <b>RABEINU SHMUEL</b> who explains that Rebbi Avahu follows the view of Rebbi Shimon, who states that 'Mekalkel b'Chaburah,' one who performs a destructive act of Chovel, is Chayav. Rebbi Yochanan follows the view of Rebbi Yehudah, who states that one is exempt for 'Mekalkel b'Chaburah.' Only when one does an act of Chovel or Mav'ir which is constructive is he Chayav.
</p><p>
Tosfos has difficulty with this explanation. Why should Rebbi Yochanan reject Rebbi Avahu's teaching ('Go say that outside the study hall') merely because Rebbi Avahu was espousing the view of Rebbi Shimon? 
</p><p>
(b) Tosfos explains instead that both Rebbi Avahu and Rebbi Yochanan agree with Rebbi Shimon. They argue merely with regard to Rebbi Shimon's intent when he says that one is liable for Chovel and Mav'ir in any event. Rebbi Avahu takes his statement at face value and understands that Chovel or Mav'ir done in a destructive way is the nature of these Melachos according to Rebbi Shimon. Rebbi Yochanan understands that even Rebbi Shimon maintains that one must have some type of positive purpose in the Melachah in order to be liable for the Melachah. These two Melachos differ from all other Melachos, where Rebbi Yochanan agrees that such a minimal positive purpose is not considered constructive enough to make the person Chayav. For example, it is clearly not considered a constructive act when one makes his friend bleed in order that his dog should have some blood to eat, or when one burns his friend's field in order to have some ashes. Nevertheless, Rebbi Yochanan understands that Chovel is different according to Rebbi Shimon in that even a small constructive purpose renders one Chayav for desecrating Shabbos.
</p><p>
Tosfos asks that Rebbi Avahu's opinion is difficult to understand. How can he suggest that Rebbi Shimon needs no constructive purpose for Chovel and Mav'ir? When done with no constructive purpose, the act is a 'Melachah she'Einah Tzerichah l'Gufah' for which one is exempt. (According to Tosfos, a 'Melachah she'Einah Tzerichah l'Gufah' is a Melachah that is not done for a purpose similar to the purpose for which the Melachah was done in the Mishkan.) It is apparent from many statements through the Gemara that Rebbi Shimon agrees that every Melachah must be done for some constructive purpose in order for one to be Chayav! Tosfos answers that all of those statements follow Rebbi Yochanan's opinion. Alternatively, Tosfos answers that if one performs an act of Chovel to a living thing from which one is forbidden to derive benefit in order to give to his dog, or he burns it in order to use the fire for cooking, he ruins them totally but for a constructive purpose. (Mordechai Zvi Dicker)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MONETARY LIABILITY OF ONE LIABLE TO DIE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case in which his ox burned is like when 
          he burned. Just like he burns for a need, also his ox.
<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 (Rav Avya):</font></b> An intelligent ox was bitten 
               on the back. It wants the ashes to roll in them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Question: How do we know that this is 
               why it burned?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Afterwards, it rolled in the ashes.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Are there really such intelligent oxen?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Yes! Rav Papa's ox had a toothache. It 
               opened a barrel of beer, drank and was healed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rabanan):</font></b> How can we say that the case of his 
          ox is like himself? It also teaches when they 
          embarrassed!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven is liable, so he must have intended. How 
               can we find this regarding an ox?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, it intended to damage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a man intended to damage, even though he did 
               not intend to embarrass, he pays for embarrassment.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> In the Mishnah, (Reuven and his ox) 
          burned b'Shogeg.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Tana d'Vei Chizkiyah):</font></b> The Torah equates 'one 
               who strikes (i.e. kills) a man' and 'one who strikes 
               an animal':
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One who strikes an animal always pays, without 
               distinction between Shogeg or Mezid, whether he hit 
               going downward or upward. Similarly, one who strikes 
               a man never pays, without distinction. (The same 
               applies to all capital sins.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rabanan):</font></b> How can you say that in the 
          Mishnah, he burned b'Shogeg? It says, he is judged to 
          die!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Had he intended, he would be judged to 
          die, i.e. if he needed the ashes. Therefore, even 
          b'Shogeg, he does not pay.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DISPUTE OVER WHO DAMAGED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven's ox was chasing Shimon's ox, and 
          we see Shimon's ox wounded, and Shimon says that Reuven's 
          ox damaged it, and Reuven says that it was hurt on a 
          stone, ha'Motzi me'Chaveiro Alav ha'Re'ayah (the one who 
          wants to collect (Shimon) must bring proof).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven's and Shimon's oxen were chasing Levi's ox, 
          and it was damaged, and Reuven says 'your ox damaged', 
          and Shimon says 'no, rather, your ox damaged', they are 
          exempt.
<br>
<br>

sjt:
<font><b>1) AN OX THAT BURNS A PILE OF GRAIN WITH SPECIFIC INTENT</b></font><b>
<br>OPINIONS:</b> The Mishnah (34b) teaches that one must pay for the damages caused by his ox that burned a pile of grain on Shabbos, while a man who burned a pile of grain on Shabbos is exempt from payment. The Gemara explains that just as a man is liable (Misah) for desecrating Shabbos (and is thus exempt from payment) only when he lit the fire on Shabbos for the purpose of using the resultant ashes, the owner of the ox is liable for damages even when his ox lit the fire to use the ashes to sooth a sore on his back.
</p><p>
The Gemara's point is to show that the circumstances in the case of the ox that burns the grain are the same as the circumstances in the case of the man who burns the grain; the ox's owner must pay even though the ox wanted the ashes, whereas a man is exempt from payment when he burned the grain on Shabbos in order to obtain the ashes (because of the rule, 'Kam Lei bid'Rabah Minei' -- one who is Chayav Misah is exempt from Tashlumin, monetary payments). 
</p><p>
Why would one have thought that the ox's owner is exempt from liability when the ox needed the ashes? What difference does it make whether the ox burned the grain in order to obtain the ashes or not?
</p><p>
(a) <b>RASHI</b> (DH Af Shoro) explains that the Mishnah indeed does not mean to teach that the ox's intention matters. Rather, the Mishnah compares the two cases (an ox that burns grain on Shabbos and a man who burns grain on Shabbos) merely to teach that the circumstances are the same in both cases (as the Gemara explains, in both cases the grain is burned in order to obtain the ashes), and although the owner of the ox is obligated to pay the same amount whether or not the ox needed the ashes, the man who burned the grain is exempt only if he needed the ashes.
</p><p>
(b) The <b>BA'AL HA'ME'OR</b> understands that the Gemara's interpretation of the Mishnah is literal: if the ox would have burned the grain with no specific intent to obtain the ashes, it would have been considered an act of Keren and the owner would have been liable for only half of the damages. Since the ox intended to damage (to obtain the ashes), its act is considered an act of Shen. The Mishnah teaches that only in such a case is the owner obligated to pay the full amount of the damages. (Mordechai Zvi Dicker)
</p><p>


<font><b>2) AN OX THAT CHASED ANOTHER</b></font><b>
<br>QUESTION:</b> The Mishnah discusses a case in which one ox chased another ox which then suffered damage. The owner of the damaged ox claims that the pursuing ox caused the damage, while the owner of the pursuing ox claims that the ox was damaged by a rock. The Mishnah states that the owner of the damaged ox must prove his claim if he wants to receive compensation, because of the principle, 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' 
</p><p>
Why does the Mishnah need to teach this ruling? This ruling is obvious, even without the Mishnah, because of the principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah,' which applies in all cases in which one person makes a monetary claim against another person!
</p><p>
<b>ANSWER:</b> The <b>NIMUKEI YOSEF</b> writes in the name of the <b>RAMAH</b> that the Mishnah is teaching two novel points. 
</p><p>
The first point is that although there is circumstantial evidence that the damage was caused by the pursing ox, the Halachah is not decided based on assumptions, regardless of how convincing they may be. 
</p><p>
The second point is that even if the owner of the pursuing ox agrees that the damage happened because of his ox, he is exempt. The owner of the pursuing ox agrees that <i>because</i> his ox chased the other ox, the ox being chased stumbled on a rock and was harmed. The Mishnah teaches that even though the pursuing ox indirectly caused the damage, the owner is exempt from payment. He is exempt because of the rule that 'Gerama b'Nizakin Patur' -- 'indirect cause of damage is exempt.'
</p><p>
The <b>RASHASH</b> points out that <b>RASHI</b> apparently does not agree that the Mishnah intends to teach this second point. Rashi (DH b'Sela) writes that the owner of the pursuing ox claims that the damaged ox intentionally scratched itself on the rock and thereby damaged himself. Rashi implies that only in such a case is the owner of the pursuing ox exempt from payment; if, however, the ox was damaged as a result of fleeing from the pursuing ox, its owner would be obligated to pay for the damages. (Mordechai Zvi Dicker)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If both chasing oxen belonged to Reuven, they are 
               liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If one was big (or Mu'ad), and the other small (a 
               Tam), and Levi says 'the big one (or Mu'ad) 
               damaged', and Reuven says 'no, the small (Tam) one 
               damaged', ha'Motzi me'Chaveiro Alav ha'Re'ayah. 
               (Levi collects no more than the value of the small 
               Tam ox.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If two oxen of Reuven damaged two of Levi's oxen, and 
          Levi says that the big ox (or the Mu'ad) damaged the big 
          ox, and the small ox (or the Tam) damaged the small ox, 
          and Reuven says oppositely, ha'Motzi me'Chaveiro Alav 
          ha'Re'ayah.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT DO WE DO WHEN IN DOUBT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara - R. Chiya bar Aba):</font></b> Our Mishnah teaches that 
          Chachamim argue with Sumchus, who says that when in 
          doubt, we split the money.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (R. Aba bar Mamal):</font></b> Did Sumchus say so even 
          when both sides make definite claims?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (R. Chiya bar Aba):</font></b> Yes.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the source that in our Mishnah, 
               their claims are definite?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It says 'this one says 'your ox damaged', 
               and the other says 'no, rather...''
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> If in the Reisha both are 
          definite, also in the Seifa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa):</font></b> If one was big (or Mu'ad), and the other 
               small (Tam), and Levi says 'the big one (or Mu'ad) 
               damaged' and Reuven says 'no, rather the small (Tam) 
               one damaged', ha'Motzi me'Chaveiro Alav ha'Re'ayah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Inference):</font></b> If Levi cannot bring proof, he 
               collects like Reuven said.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> If so, this refutes Rabah 
               bar Nasan!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rabah bar Nasan):</font></b> If Reuven claimed that Shimon 
                    owes him wheat, and Shimon admitted that he 
                    owes barley, Shimon is exempt (even for giving 
                    barley. Reuven pardoned him for it.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> Rather, in the Seifa one party is definite, 
          and the other is unsure.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Which is definite?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the damager is unsure and the victim is 
               definite, this still refutes Rabah bar Nasan!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, the damager is definite, and the victim 
          is unsure.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Inference:</font></b> Also in the Reisha, the damager is definite, 
          and the victim is unsure.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Does Sumchus say even in this case that we 
          split the money, and therefore our Tana needed to teach 
          unlike him?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> No. In the Reisha, the damager is unsure and 
          the victim is definite.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> It is difficult to say that the Reisha and 
          Seifa discuss different cases!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> When one side is sure, and the other is not, it 
          makes little difference which side is sure;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When both sides are sure is very different than 
               when only one side is sure.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ADMISSION UNLIKE THE CLAIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah bar Nasan):</font></b> If Reuven claimed that Shimon owes 
          him wheat, and Shimon admitted that he owes barley, 
          Shimon is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> A Mishnah teaches this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven claimed that Shimon owes him 
               wheat, and Shimon admitted that he owes barley, 
               Shimon is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that he is exempt from 
          paying wheat, but he must pay barley. Rabah bar Nasan 
          teaches that he is totally exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If two oxen of Reuven, one big and one 
          small...
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Inference):</font></b> If Levi cannot bring proof, he collects 
          like Reuven says.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> This is like wheat and barley (and R. Nasan 
          totally exempts)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, if Levi cannot bring proof, he should 
          collect like Reuven says, but does not collect at all.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Levi collects for the small ox from 
          the big ox, and for the big ox from the small ox.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> That is when Levi seized the damager.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If two oxen of Reuven, one Tam and one 
          Mu'ad... Levi says that the Mu'ad damaged the big ox and 
          the Tam damaged the small ox, and Reuven says, no, it was 
          the other way, ha'Motzi me'Chaveiro Alav ha'Re'ayah.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Inference):</font></b> If Levi cannot bring proof, he collects 
          like Reuven says.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> This is like wheat and barley!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> If Levi cannot bring proof, he should collect 
          like Reuven says.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Levi collects for the small ox from 
          the Mu'ad, and for the big ox from the Tam.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> That is when Levi seized the damager.
<br>

sjt:
<p>
<font><b>3) CLAIMING WHEAT AND ADMITTING BARLEY (AS IT APPLIES TO OXEN)</b></font><b>
<br>OPINIONS:</b> The Mishnah discusses a case in which the owner of an ox admits that his goring oxen damaged someone else's oxen, but he claims that it was his small Tam ox that did the damage (and thus he agrees to pay only half of the value of the damage). The owner of the gored oxen claims that it was the large Mu'ad ox that did the damage (and thus he demands full compensation). The burden of proof rests on the one who was damaged. Without proof, the owner of the damaged oxen may collect only what the owner of the damaging ox admits that he owes.
</p><p>
The Gemara asks why the owner of the damaged oxen may collect anything. Rabah bar Nasan teaches, 'Ta'ano Chitim v'Hodah Lo b'Se'orim Patur.' When one person claims that the other person owes him wheat, and the defendant admits that he owes barley but not wheat, he is exempt from payment. Similarly, in the case of the Mishnah in which the owner of the damaged ox claims payment from one ox (the Mu'ad) and the owner admits that he owes payment from a different ox (the Tam), the owner should be exempt from payment altogether!
</p><p>
The Gemara answers that the Mishnah refers to a case in which the owner of the damaged ox claims only that it <i>might</i> have been the Mu'ad ox that did the damage. His intention is to claim payment from one of the two oxen, and thus this case is not similar to the case of 'Ta'ano Chitim v'Hodah Lo b'Se'orim.'
</p><p>
What is the logic behind Rabah bar Nasan's ruling of 'Ta'ano Chitim v'Hodah Lo b'Se'orim Patur'? Also, why does the Gemara initially assume that the case of the Mishnah is similar to that case?
</p><p>
(a) <b>RASHI</b> (DH Af) explains that by not claiming barley, the claimant releases any claim to barley. He therefore has no right to collect it.
</p><p>
(b) The <b>ROSH</b> disagrees with Rashi's explanation. He asserts that a person does not always state all of his claims. Moreover, the logic that the claimant shows that he relinquishes his claim to one object by claiming another does not apply to the case in the Mishnah. In the case of the Mishnah, it is clear that the claimant's motive for asserting that it was the large Mu'ad ox that did the damage and not the small Tam ox is to ensure that he receives the full value of the damages. He clearly has no intention to relinquish any claims for damages caused by the small ox.
</p><p>
The Rosh therefore understands that the logic for Rabah bar Nasan's ruling is that the claimant's claim of wheat implies that he admits that the defendant does not owe him barley. How does his claim of wheat imply that he admits that he is not owed barley? Perhaps he is making only one of several claims (as the Rosh himself asks on Rashi)!
</p><p>
The Rosh explains that the case of 'Ta'ano Chitim v'Hodah Lo b'Se'orim' indeed is similar to the case of the Mishnah. In the case of 'Ta'ano Chitim,' the two disputants argue about a specific loan that transpired at a specific time. The lender claims that he lent wheat, and the borrower claims that he borrowed barley.
</p><p>
The reason why the borrower is exempt from payment entirely is that the lender clearly admits that he did not lend barley; both agree that there was only one loan. In the case of the Mishnah as well, the owner of the damaged ox admits that the small Tam ox did not do damage. He therefore should not be able to collect from the small ox.
</p><p>
(c) The <b>NIMUKEI YOSEF</b> explains that the reason why the defendant is not obligated to pay barley (even though he admits that he owes barley) is that the admission of the borrower that he owes barley is not a valid admission. Since this admission was made without a prior claim that barley was owed, the borrower may change his mind and say, 'Meshateh Ani Bach' -- 'I was joking with you.' Only when he is confronted with a claim is his admission of that claim taken seriously. According to this explanation, if witnesses testify that the borrower indeed borrowed barley, the borrower is obligated to pay back the barley (since there was no admission by the lender that the borrower does not owe him barley).
</p><p>
The Rosh asks that this explanation does not seem consistent with the Mishnah. In the case of the Mishnah, there must have been witnesses who saw the goring (but are unable to identify which ox gored), because if no witnesses saw the goring the owner of the ox that damaged would be exempt because of the rule of 'Modeh b'Kenas Patur' -- one who admits to a penalty is exempt from paying it, since 'Palga Nizka Kenasa' -- the obligation of Chatzi Nezek for damages done by a Tam has the status of a penalty and not actual compensation for damages.
</p><p>
Whenever witnesses are present, one cannot claim 'Meshateh Ani Bach.' How, then, does the Nimukei Yosef understand the Gemara's comparison of the case of the Mishnah (in which there are witnesses and thus one cannot claim 'Meshateh Ani Bach') with the case of 'Ta'ano Chitim'?
</p><p>
The Nimukei Yosef is not bothered by this question because he maintains that the Gemara here follows the view that 'Palga Nizka Mamona' -- the obligation of Chatzi Nezek for damages done by a Tam has the status of a monetary compensation (and is not a fine). Therefore, the case of the Mishnah does not need to be a case in which there are witnesses. Accordingly, the admission of the owner of the damaging ox was in response to no claim from the claimant; he could have denied the entire incident, and therefore he can claim 'Meshateh Ani Bach.' (Mordechai Zvi Dicker)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>COLLECTION FROM TWO OXEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If two oxen of Reuven... they are liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Inference - Rava of Parzika):</font></b> When (we do not know 
          which of) two Tamim oxen damaged, the victim may collect 
          from either.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (Rav Ashi):</font></b> No. The case is, both are Mu'ad.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rava - Seifa):</font></b> Levi says, the big ox damaged 
          the big ox... 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they are Mu'ad, it doesn't matter which damaged 
               which! (In any case he pays full damage.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rav Ashi):</font></b> The Reisha discusses Mu'adim, and 
          the Seifa discusses Tamim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection #1 (R. Acha Sava):</font></b> If they are Mu'adim, why 
          does the Mishnah say 'they are liable'? It should say 
          that Reuven is liable!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection #2 (R. Acha):</font></b> Why does it say that both of 
          them are liable? (Even one pays full damage!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, they are Tamim. The Mishnah is like 
          R. Akiva, who says that the victim is a partner in the 
          damager;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Both are liable' means that when both animals 
               are here, Reuven pays. If one was lost, he would be 
               exempt. He could say that perhaps the lost animal 
               damaged.
<br>
<br><b>PEREK SHOR SHE'NAGACH ARBA'AH V'CHAMISHAH</b>
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MULTIPLE GORINGS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Meir):</font></b> If Reuven's ox gored four or five 
          oxen, of (Shimon,) Levi, Yehudah, Gad and Asher, he pays 
          the damage to Asher's ox, up to the value of Reuven's ox.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there is money left over (Reuven's ox is worth 
               more than the damage), he uses it to pay Gad (and if 
               there remains, Yehudah, Levi, and Shimon). The last 
               victim always collects first.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon says, if David's ox gored Moshe's ox, and 
          both were worth 200, and the carcass is worthless, David 
          and Moshe each end up with 100.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the ox then gored Kalev's ox, Kalev gets 100, 
               and David and Moshe each end up with 50.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it then gored Aharon's ox, Aharon gets 100, 
               Kalev gets 50, David and Moshe each end up with a 
               gold Dinar (25 silver Dinarim).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> (R. Meir in) our Mishnah is not like 
          R. Yishmael, nor like R. Akiva!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Yishmael, the victims are 
               creditors (not partners in the damager). The first 
               victim should collect first, not the last!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to R. Akiva, the victims are partners 
               in the damager. Extra money should be split equally. 
               The last victim should not collect first!
<br>
<br>

sjt:
<font><b>1) WHY DOES 'TEFISAH' CIRCUMVENT THE LAW OF RABAH BAR NASAN?</b></font><b>
<br>QUESTION:</b> The Mishnah (35b) discusses a case in which the owner of an ox admits that his goring oxen damaged someone else's oxen, but he claims that it was his small Tam ox that did the damage (and thus he agrees to pay only half of the value of the damage). The owner of the gored oxen claims that it was the large Mu'ad ox that did the damage (and thus he demands full compensation). The burden of proof rests on the one who was damaged. Without proof, the owner of the damaged oxen may collect only what the owner of the damaging ox admits that he owes.
</p><p>
The Gemara asks why the owner of the damaged oxen may collect anything. Rabah bar Nasan teaches, 'Ta'ano Chitim v'Hodah Lo b'Se'orim Patur.' When one person claims that the other person owes him wheat, and the defendant admits that he owes barley but not wheat, he is exempt from payment. Similarly, in the case of the Mishnah in which the owner of the damaged ox claims payment from one ox (the Mu'ad) and the owner admits that he owes payment from a different ox (the Tam), the owner should be exempt from payment altogether! It seems that the Mishnah refutes the ruling of Rabah bar Nasan.
</p><p>
The Gemara answers that the Mishnah refers to a case in which the owner of the damaged ox claims only that it <i>might</i> have been the Mu'ad ox that did the damage. His intention is to claim payment from one of the two oxen, and thus this case is not similar to the case of 'Ta'ano Chitim v'Hodah Lo b'Se'orim.'
</p><p>
The Gemara asks another question from another case which the Mishnah discusses, in which two oxen damaged two other oxen. The two oxen that did the damage were either a small Tam and a large Tam, or a large Tam and a Mu'ad. One of the damaged animals was large and the other was small. The owner of the oxen that damaged claims that his small Tam damaged the large animal, while either his large Tam or Mu'ad damaged the small animal. The owner of the damaged animals claims that the small Tam damaged his small animal, and the large Tam or Mu'ad damaged the large animal. As in the previous cases, the Mishnah rules 'ha'Motzi me'Chaveiro Alav ha'Re'ayah,' and thus the owner of the damaged ox must prove his claim if he wants to receive the compensation which he demands.
</p><p>
The Gemara again asks that according to Rabah bar Nasan, the owner of the damaged oxen should not be able to collect anything at all, since he claims the larger amount of damage only from the larger Tam or from the Mu'ad.
</p><p>
The Gemara answers that only if the owner of the damaged oxen does an act of 'Tefisah' -- he seizes the damaging oxen -- may he collect the damages which the owner of the damaging oxen admits that he owes. In such a case Rabah bar Nasan's ruling of 'Ta'ano Chitim v'Hodah Lo b'Se'orim Patur' does not apply.
</p><p>
Why does an act of Tefisah circumvent Rabah bar Nasan's law?
</p><p>


<b>ANSWER:</b> Tefisah circumvents Rabah bar Nasan's law because the person whose property was damaged collects the damages because of his claim and not because of the admission of the owner of the damaging oxen. Since his entitlement to collect is independent of the other's claims, the case is not similar to a case of 'Ta'ano Chitim v'Hodah Lo b'Se'orim.' 
</p><p>
However, he may collect only the amount which the other owner admits that he owes. This type of Tefisah establishes the claimant as the 'Muchzak,' the one currently in possession of the item in doubt (in this case, the oxen), so that he may collect what he claims. This takes into account that the owner of the damaging oxen agrees that he owes this money to the owner of the damaged oxen.
</p><p>
The <b>ROSH</b> also explains why the Gemara earlier (35b) does not answer its first question on Rabah bar Nasan (from the first case in the Mishnah) with the answer of Tefisah. The Rosh asserts that Tefisah works only in a case in which the owner of the damaging oxen agrees that the animal that was seized belongs (at least in part) to the owner of the damaged oxen. This is true only in the cases of the Mishnah in which two oxen damaged, such that both oxen are partially owed to the owner of the damaged oxen. (Mordechai Zvi Dicker)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Really, it is like R. Yishmael. The 
          latter victim collects first, because we discuss when 
          each victim seized the ox to collect from it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is like a Shomer Sachar, who is responsible 
               for damage that the animal does.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why does extra money go to the last 
          victim? It should go to the owner!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> The Mishnah teaches that if a victim 
          owns more of the animal than it damaged the next time, he 
          keeps the excess.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Also Ravin explained that the Mishnah discusses when 
          the victims did not guard the damager.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The Seifa is unlike R. Yishmael!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa - R. Shimon):</font></b> If David's ox worth 200 
               gored Moshe's ox worth 200, and the carcass is 
               worthless, David and Moshe each end up with 100.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the ox then gored Kalev's ox, Kalev gets 100, 
               and David and Moshe each end up with 50.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If the ox then gored Aharon's ox, Aharon gets 
               100, Kalev gets 50, and David and Moshe each end up 
               with 25.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This is like R. Akiva, who says that the victim 
               is a partner! Can the Reisha be like R. Yishmael, 
               and the Seifa like R. Akiva?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Shmuel):</font></b> Yes!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE PAYMENT FOR TOKE'A</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(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'>(b)</font></b></b>  	R. Yehudah says, he pays 100 (silver) Dinarim.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A case occurred in which Ploni was Toke'a Shimon. Rav 
          Tuvya bar Masnah asked Rav Yosef if the Mishnah means a 
          Sela Tzuri (pure silver) or a common Sela (worth an 
          eighth as much, for it is seven eighths copper).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rav Yosef:</font></b> We learn from our Mishnah. The first two 
          each end up with a gold Dinar (25 silver Dinarim);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Sela'im (of the Mishnah) are common Sela'im, 
               the Mishnah should have discussed another goring. 
               The first two would get 12 (silver) Dinarim and 
               (half a Dinar, which is) a Sela! (Rather, Sela'im 
               are Tzuri, four Dinarim; the Tana did not want to 
               discuss fractions.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> The Tana would not lengthen the Mishnah 
          unless this teaches something new!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What was the final ruling?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> They learned from Rav Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> All money mentioned in the Torah 
               is Tzuri. All money of enactments mid'Rabanan (such 
               as Toke'a) is common money.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	When Shimon heard that he will only receive a half-
          Dinar, he was not interested. He said 'give it to the 
          poor'. He later retracted and asked to get it.
<br>

sjt:
<p>
<font><b>2) DOES REBBI AKIVA AGREE WITH THE LOGIC OF THE GEMARA?</b></font><b>
<br>QUESTION:</b> In the Mishnah, Rebbi Meir rules that when a Tam damages multiple animals successively, the owner of the last animal that is damaged has precedence in receiving full compensation. (Since the payment for damages done by a Tam is 'mi'Gufo,' the amount of money that the owner must pay for the damages by his Tam is limited to the value of the animal.)
</p><p>
The Gemara asks that the Mishnah does not seem to be consistent with the views of either Rebbi Yishmael or Rebbi Akiva. According to Rebbi Yishmael, the damagees are considered creditors who are owed money by the damager, and thus the first payment should be given to the owner of the first ox that was damaged, since he was owed the money first. According to Rebbi Akiva, the damagees are considered partners in the ownership of the damaging ox, and thus the last damagee should not collect first, but rather the money should be split equally among all of the damagees.
</p><p>
The Gemara responds that even Rebbi Yishmael may agree with the Mishnah, because the Mishnah refers to a case in which the owner of the damaged animal seized (Tefisah) the damaging ox immediately in order to collect payment for the damages. After he seized the ox, it went and damaged another animal, and the owner of that damaged animal seized the ox. The ox again ran away and damaged another animal, whose owner seized the ox. This happened numerous times. Each person who seized the ox is responsible for the damage caused to the next animal while he was watching the ox. Each person assumes responsibility for the ox because he has the status of a 'Shomer Sachar,' a paid guardian, since he benefits from the animal insofar as he may collect the damages from its body.
</p><p>
The Gemara seems to explain the Mishnah only according to the view of Rebbi Yishmael, who maintains that the owner of the damaged ox is comparable to a creditor of the owner of the damaging ox (specifically a Tam). The Gemara implies that the Mishnah is <i>not</i> consistent with the view of Rebbi Akiva, who maintains that the owner of the damaged ox is considered a partner with the owner of the damaging ox. Why, though, does Rebbi Akiva not agree with the Mishnah's ruling in the case that the Gemara describes (each owner of a damaged animal seized the damaging ox)? 
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH Shavuk Masnisin) writes that although Rebbi Akiva indeed may agree with this logic, according to him there is no need for the Mishnah to teach it. It is obvious that the last person whose animal was damaged should receive the money. Since the previous damagees became partial owners of the damaging ox, they became liable for any future damage done by the ox. Only according to Rebbi Yishmael does the Mishnah teach something novel. According to Rebbi Yishmael, the Tefisah renders the previous damagees Shomrei Sachar and thus makes them responsible for any damage done thereafter by the ox.
</p><p>
(b) <b>TOSFOS</b> (DH Kegon) explains that according to Rebbi Akiva, the owner of the damaged animal becomes liable only for half of the damage which the damaging ox does after he seizes it, since he becomes an owner of only half of the ox. Only according to Rebbi Yishmael does the person who seized the ox become liable for any damage subsequently done by the ox, since his seizure of the ox gives him the status of a Shomer Sachar.
</p><p>
Tosfos' logic seems difficult to understand. According to Rebbi Yishmael, the person who seizes the ox becomes a Shomer Sachar for the entire ox because half of its value is owed to him, and he is holding the ox in order to collect his damages. Why does the same logic not apply to Rebbi Akiva's view? According to Rebbi Akiva, the person who seizes the ox also should be considered a Shomer Sachar for the entire ox since he seized it in order to claim half of its body.
</p><p>
The <b>AYELES HA'SHACHAR</b> answers that according to Rebbi Akiva (who maintains that the damagee owns half of the ox), when the damagee seizes the ox, he seizes only the half which belongs to him. Although physically he takes possession of the entire ox, his intent is to seize only the half that is his. Accordingly, his seizure of half of the ox does not make him a Shomer Sachar for the other half, since he did not intend to grab it for his own purposes. The liability for damage that it causes remains split between the owner of the ox and the damagee who seized it.
</p><p>
In contrast, according to Rebbi Yishmael the ox itself belongs only to its original owner, while half of its value happens to be owed to the damagee. In such a case, the owner of the damaged ox intends to seize the entire animal (none of which is his) in order to collect from it half of its value. This makes him a Shomer Sachar for the entire animal and liable for all damages that it does. (Mordechai Zvi Dicker)
</p><p>


<font><b>3) RAV YOSEF, THE 'GABAI TZEDAKAH' </b></font><b>
<br>QUESTION:</b> The Gemara relates that a person was harmed by someone else and was owed half a Zuz as compensation. When the damagee heard that he would receive only half a Zuz, he was not interested in the money and said that it should be given to the poor. He then changed his mind and decided to use the money to heal himself. Rav Yosef told him that he may not do so, since the money is considered as though it had already been acquired by the poor. Although there were no poor people in the area, Rav Yosef -- in his capacity as Gabai Tzedakah -- acquired the money on behalf of the poor people elsewhere.
</p><p>
<b>TOSFOS</b> (DH Yad Aniyim) and others ask why the Gemara needs to add that Rav Yosef's hand is like the hand of the poor. Why is that fact essential to the ruling of the Gemara? The damagee already promised to give the money to Tzedakah, and thus he cannot retract his promise. The Gemara in Rosh Hashanah (6a) teaches that when one says that he will give money to Tzedakah, his statement has the status of a vow which he must fulfill. What difference does it make that Rav Yosef was a Gabai Tzedakah?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that the money owed is a 'Davar she'Lo Ba l'Olam,' an object which has not yet come into the world. Just as a person cannot be Makdish a Davar she'Lo Ba l'Olam, his promise to give a Davar she'Lo Ba l'Olam to Tzedakah is not binding. He would have been obligated to keep his word only if he would have made a general promise to give half a Zuz to Tzedakah, not a specific half Zuz that at this moment is considered a Davar she'Lo Ba l'Olam.
</p><p>
(b) Tosfos quotes <b>RABEINU CHANANEL</b> who says that the damagee did not retract his desire to give the money to Tzedakah. He merely wanted to borrow the money and afterwards pay other money back to Tzedakah. Such a loan is permissible as long as the money has not yet reached the hands of the Gabai Tzedakah or the poor people themselves. Rav Yosef claimed that since he was a Gabai Tzedakah, the money had already reached the hands of the Gabai and it cannot be borrowed anymore. Although Rav Yosef had not yet physically received the money, the rights to the money had been given to him through 'Ma'amad Sheloshtan.' Since the damagee said he would give the money to Tzedakah in the presence of the person who owed him the money and the Gabai Tzedakah, the Gabai Tzedakah (Rav Yosef) is considered to have already acquired the money. (Mordechai Zvi Dicker) 
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>BEIS DIN ACQUIRES FOR THE POOR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rav Yosef:</font></b> You cannot retract. The poor already 
          acquired it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though there are no poor people here, I 
               acquired on behalf of poor people elsewhere.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> Orphans do not need Pruzbul (a 
               document in which one gives his debts owed to him to 
               Beis Din, so the loans will not be cancelled in 
               Shemitah).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rami bar Chama - Beraisa):</font></b> Orphans do not need 
               Pruzbul. R. Gamliel and his Beis Din are like the 
               father of orphans.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Chanan Bisha was Toke'a a man. Rav Huna obligated him 
          to pay a half Dinar. Chanan had a rubbed out Dinar that 
          people did not accept. He hit the man another time, and 
          gave him the Dinar.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MU'AD FOR DIFFERENT THINGS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> An ox that is Mu'ad to gore oxen (and it) is 
          not Mu'ad to gore other animals (Amora'im argue about 
          whether or not the text of the Mishnah includes the words 
          in parentheses); 
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	An ox Mu'ad to gore people (and it) is not Mu'ad for 
          animals; an ox Mu'ad to gore small animals (and it) is 
          not Mu'ad for big animals;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In every case, it pays full damage for what it is 
               Mu'ad, and half-damage for what it is not Mu'ad. 
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Talmidim:</font></b> (What is the law of) an ox Mu'ad to gore on 
          Shabbos (and it) is not Mu'ad during the week(?)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Yehudah:</font></b> It pays full damage for goring on Shabbos, 
          and half-damage on a weekday.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It becomes Tam again after three consecutive 
               Shabbosos without goring.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Rav Zvid):</font></b> The Mishnah says 'an ox that is 
          Mu'ad to gore oxen, and it is not Mu'ad for other 
          animals...'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> It says 'an ox that is Mu'ad to gore oxen 
          is not Mu'ad for...'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Zvid holds that an ox Mu'ad for one thing is 
               assumed to be Mu'ad for others, unless we see 
               otherwise;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Papa holds that an ox Mu'ad for one thing is 
               not Mu'ad for others, until it become Mu'ad for 
               them.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rav Zvid learned from the Seifa. An ox that is Mu'ad 
          for small animals (and it) is not Mu'ad for big animals.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, if the text is 'and it is not Mu'ad', 
               this teaches that an ox Mu'ad for small animals is 
               assumed to be Mu'ad for big animals.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if the text is 'is not Mu'ad', the Chidush 
               would be that an ox Mu'ad for small animals is not 
               assumed to be Mu'ad for big animals. The Reisha 
               already taught a bigger Chidush (that Mu'ad for 
               small animals of its species is not Mu'ad for small 
               animals of another species)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav Papa says that we could not learn from the 
               Reisha. One might have thought that once it starts 
               goring a species, it does not distinguish between 
               big and small animals of the species. The Seifa 
               teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Rav Papa learned from the Reisha. An ox that is Mu'ad 
          for people is not Mu'ad for animals.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, if the text is 'is not Mu'ad', this teaches 
               that an ox Mu'ad for people is assumed not to be 
               Mu'ad for animals (even though animals lack Mazel, 
               and it is easier to gore them).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if the text is 'and it is not Mu'ad', the 
               Chidush would be that an ox Mu'ad for people is 
               assumed to be Mu'ad for animals. The previous clause 
               already taught a bigger Chidush (Mu'ad for animals 
               of one (even its own) species is Mu'ad for animals 
               of another species)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav Zvid says that the clause is needed to teach 
               about returning to the status of Tam. I.e., it was 
               Mu'ad for people and for animals, and it stopped 
               being Mu'ad for animals (three times, it refrained 
               from goring them). One might have thought that since 
               it remains Mu'ad for man, it is not considered Tam 
               for animals. The Seifa teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (against Rav Zvid - Beraisa - Sumchus):</font></b> A Kal 
          va'Chomer teaches that an ox Mu'ad for people is Mu'ad 
          for animals.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is Mu'ad to gore man, all the more so to 
               gore animals!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This implies that the Chachamim who argue with 
               him hold that Mu'ad to gore man is not Mu'ad for 
               animals (and our Mishnah is like Chachamim)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa discusses returning to the status 
          of Tam. The first Tana holds that it reverts to being Tam 
          for animals, even though it remains Mu'ad for man. 
          Sumchus holds that a Kal va'Chomer teaches that it 
          remains Mu'ad for animals!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it remains Mu'ad for man, all the more so for 
               animals!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Support #1 (for Rav Zevid - Rav Ashi - Mishnah - 
          Talmidim):</font></b> (What) if it is Mu'ad to gore on Shabbos, (and 
          it) is not Mu'ad during the week(?)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yehudah:</font></b> It pays full damage for goring on 
               Shabbos, and half-damage on a weekday.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Granted, if the text is 'what if... and it is not 
               Mu'ad...?', the Talmidim asked and R. Yehudah 
               answered.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> But if the text is 'is not Mu'ad', did 
               the Talmidim come to teach R. Yehudah the law?!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Also, what is the Chidush of his response?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Support #2 (R. Yanai - Reisha):</font></b> It pays full damage for 
          what it is Mu'ad, and half-damage for what it is not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the text is 'and it is not Mu'ad', this 
               teaches that normally it is assumed to be Mu'ad;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since the Chidush of the Mishnah is the 
                    inference, it proceeds to explain it, how much 
                    it pays for each (even though this is no 
                    Chidush).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> But if the text is 'is not Mu'ad', this 
               is the Chidush. Why does the Mishnah continue to 
               teach that a Mu'ad pays full damage, and a Tam pays 
               half-damage? We already know this!
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	According to Rav Papa, an ox that gores three different 
          animals is Mu'ad for all (animals).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PATTERNS OF GORING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If an ox saw six oxen, one after the other, 
          and it gored the first, third and fifth, it is Mu'ad to 
          gore every alternating ox.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If an ox saw six different animals, one 
          after the other, and gored the first, third and fifth, it 
          is Mu'ad to gore every alternating animal (of all 
          species).
<br>
<br>

sjt:
<font><b>1) A DEBT GIVEN OVER TO BEIS DIN </b></font><b>
<br>QUESTION:</b> The Gemara (36b) teaches that Rav Yosef's hand was like the hand of the poor; since he was the Gabai Tzedakah, when a person who was owed money pledged to give the money to the poor in front of him and the debtor, the money automatically was transferred to Rav Yosef. (See previous Insight.) 
</p><p>
The Gemara quotes the statement of Rav Yehudah in the name of Shmuel as proof for this ruling. Rav Yehudah in the name of Shmuel said that orphans do not have to write a Pruzbul in order to collect debts owed to them after the Shemitah year. Since Beis Din is obligated to take care of the property of orphans, the money owed to the orphans is considered given over already to Beis Din to collect, and thus no Pruzbul is needed.
</p><p>
Why does giving one's documents over to Beis Din circumvent the prohibition of collecting loans after the Shemitah year has passed? <b>RASHI</b> in Gitin (37a, DH d'Tafsi Lehu) explains that Beis Din has the power to declare property Hefker (ownerless). Therefore, when the lender collects his debt that was handed over to Beis Din, he does not transgress the prohibition of 'Lo Yigos' -- 'Do not press [the borrower to pay back after Shemitah].'
</p><p>


Why does Rashi in Gitin need to say that Beis Din has the authority to make a person's property Hefker? It should suffice to say that they will collect the debt, and that is why they may collect after the Shemitah year. (<b>AYELES HA'SHACHAR</b>)
</p><p>
<b>ANSWER:</b> The <b>AYELES HA'SHACHAR</b> answers that the fact that Beis Din will collect the debt does not suffice to explain why they make collect it after Shemitah. After all, this should be no different from a person who sends his friend to collect his debts for him. Rashi therefore writes that Beis Din has the power to make a person's property Hefker. Beis Din has the authority to 'take' (make ownerless) someone else's money even when there is no loan that needs to be collected. Accordingly, the prohibition of 'Lo Yigos' does not apply to Beis Din, as 'Lo Yigos' prohibits the lender from pressing the borrower for payment due to the loan itself. (Mordechai Zvi Dicker)
</p><p>


<font><b>2) AN OX WHICH IS 'MU'AD' FOR ONE THING AND NOT FOR OTHERS</b></font><b>
<br>OPINIONS:</b> The Mishnah teaches that 'an ox that is Mu'ad to [gore] its own type (oxen) and is not Mu'ad to a different type, or it is Mu'ad to people and is not Mu'ad to animals, or is Mu'ad to small animals and is not Mu'ad to large animals -- it pays full damage for what it is Mu'ad to gore, and it pays half-damage for what it is not Mu'ad to gore.' 
</p><p>
Rav Zevid and Rav Papa disagree about the correct text in the Mishnah. Rav Zevid asserts that the text is as it appears in the Mishnah, '<i>and</i> is not Mu'ad to....' From this wording he infers that only when the ox has been proven not to be a Mu'ad to other animals (that is, he saw them and did not gore them) is the owner liable only for Chatzi Nezek. Without proof that the ox is not Mu'ad to other animals, it is assumed to be a Mu'ad to them and the owner is liable for Nezek Shalem.
</p><p>
Rav Papa disagrees and says that the correct text does not include the word 'and': 'An ox that is Mu'ad to [gore] its own type is not Mu'ad to a different type.' This means that even with no proof that the ox is not Mu'ad to other animals, it is not considered a Mu'ad to other animals.
</p><p>
The Gemara asks that according to Rav Papa the continuation of the Mishnah, '... it pays full damage for what it is Mu'ad to gore, and it pays half-damage for what it is not Mu'ad to gore,' is superfluous. According to Rav Papa, this statement in the Mishnah is not part of the abovementioned cases, but is a statement of the law. Why does the Mishnah need to teach that when an ox damages something for which it is not Mu'ad, it pays only Chatzi Nezek? The law of Chatzi Nezek of Tam is already known! The Gemara leaves this question unanswered.
</p><p>
The Gemara asks another question from the second part of the Mishnah which quotes a question posed to Rebbi Yehudah, 'This [ox} which is Mu'ad for Shabbosos and not Mu'ad for weekdays?' Rebbi Yehudah answered that for damage it does on Shabbos it pays Nezek Shalem, and for damage it does on weekdays it pays Chatzi Nezek. According to Rav Zevid, they were asking him what the law is in such a case. What, though, were they asking him according to Rav Papa? Without the word 'and,' their words are a statement and not a question, and Rebbi Yehudah responds with the exact same statement! The Gemara leaves this question unanswered as well.
</p><p>
How is the Mishnah to be understood according to Rav Papa, especially if the Halachah follows his view?
</p><p>
(a) The <b>NIMUKEI YOSEF</b> writes that the Halachah follows the view of Rav Papa. In the Mishnah, the Nimukei Yosef reconciles the difficulties with the text according to Rav Papa. He writes that even Rav Papa agrees that the text of the question posed to Rebbi Yehudah includes the word 'and.' As for the question from the first part of the Mishnah, apparently the Nimukei Yosef understands that the question is not a strong one, since perhaps the Mishnah merely omits the word 'and' merely for consistency with the style of the rest of the Mishnah.
</p><p>
According to the Nimukei Yosef, Rav Papa should agree with Rav Zevid's ruling that a Mu'ad for Shabbos is a Mu'ad for weekdays unless proven otherwise. The <b>RASHASH</b> indeed quotes the <b>MAHARSHA</b> who says that that everyone must agree with this ruling.
</p><p>
(b) The <b>RASHASH</b> understands that Rav Papa and Rav Zevid do not argue about the actual text of the Mishnah. The Mishnah certainly reads '<i>and</i> is not Mu'ad.' Rav Papa merely understands that when the Mishnah says 'and' it <i>means</i> that the ox 'is not a Mu'ad' -- it is not known that it is a Mu'ad for those other things.
</p><p>
When the Mishnah quotes the question posed to Rebbi Yehudah, 'This [ox} which is Mu'ad for Shabbosos and not Mu'ad for weekdays,' Rav Papa understands that they were asking what the law is in a case in which it is not known that the ox is not a Mu'ad for weekdays. (This answer does not contradict the Nimukei Yosef, but merely makes the explanation of the Mishnah more plausible.) 
</p><p>
(c) The <b>RAMBAM</b> (Hilchos Nizkei Mamon 6:8) writes, 'An ox that is Mu'ad for Shabbos is not Mu'ad for weekdays.' This implies that it is not Mu'ad for weekdays even with no proof that this indeed is the case, unlike the explanation of the Nimukei Yosef. 
</p><p>
The Rashash explains that the Rambam understands that once Rebbi Yehudah answers that there is a difference between Shabbos and weekdays in such a case, the case is similar to the case of an ox which is Mu'ad for oxen but not for other animals. In such a case, the ox is presumed <i>not</i> to be a Mu'ad unless proven otherwise. However, the Rashash concludes that this answer is somewhat difficult. (Mordechai Zvi Dicker)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If an ox gored three oxen, and then two 
          different animals, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we join the third ox to the first two, and it 
               is only Mu'ad for oxen?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we join the third ox to the two animals 
               that followed, and it is Mu'ad for all animals?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If we join it to the oxen, if it gored a 
          donkey, a camel, then three oxen, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we join the first ox to the first two animals, 
               and it is Mu'ad for all animals?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we join it to the two oxen that followed, 
               and it is Mu'ad only for oxen?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If an ox gored three times on Shabbos, once 
          on Sunday, and once on Monday, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we join the last Shabbos goring to the first 
               two Shabbos gorings, and it is Mu'ad only for 
               Shabbos?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we join it to the two weekday gorings, and 
               it is Mu'ad for all days?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If an ox gored on Thursday, Friday, and three 
          times on Shabbos, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we join the first Shabbos goring to the two 
               weekday gorings, and it is Mu'ad for all days?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we join it to the two Shabbos gorings, and 
               it is only Mu'ad for Shabbos?
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	These questions are unresolved.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav):</font></b> If an ox gored on the 15th, 16th and 17th of 
          three consecutive months, it is Mu'ad to gore according 
          to this pattern.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> It is not Mu'ad until it gores three times 
          after the same skip (i.e. after the 18th of the next 
          month).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rava):</font></b> If three times an ox heard a Shofar, and it 
          gored each time, it is Mu'ad to gore upon hearing a 
          Shofar.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that the first time was 
          only because it was afraid (not due to a nature to gore). 
          Rava teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DAMAGE TO HEKDESH ANIMALS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a Yisrael's ox gored a Hekdesh ox or 
          vice-versa, it is exempt. One is liable for 'Shor Re'ehu 
          (the ox of his fellowman)', not the ox of Hekdesh.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If a Yisrael's ox gored a Nochri's ox, it is exempt. If 
          a Nochri's ox gored a Yisrael's ox, it is a Tam or Mu'ad, 
          it pays full damage.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara):</font></b> Our Mishnah is not like R. Shimon ben 
          Menasya.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a Yisrael's ox gored a Hekdesh ox 
               or vice-versa, it is exempt - 'Shor Re'ehu', not the 
               ox of Hekdesh;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Menasya says, a Yisrael's ox that 
               gores a Hekdesh ox pays full damage, whether Tam or 
               Mu'ad, it pays full damage.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Shimon's reason?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>If 'Shor Re'ehu' is a condition to be liable, a 
               Yisrael's ox that gored a Hekdesh ox should be 
               exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If 'Shor Re'ehu' merely discusses a typical case, 
               but the Torah obligates even when it is not his 
               fellowman's ox, a Hekdesh ox that gored should also 
               be liable!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps 'Shor Re'ehu' is a condition 
               to be liable, but a Kal va'Chomer obligates a 
               Yisrael's ox that gored a Hekdesh ox:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A Yisrael's ox is liable for goring a Yisrael's 
                    ox, and all the more so for goring a Hekdesh 
                    ox!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, we could not learn more than 
               the source, i.e. half-damage for a Tam, due to Dayo!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Reish Lakish):</font></b> The Torah obligated full damage 
          (for Mu'ad);, all animals were included. It taught that a 
          Tam pays half-damage only regarding 'Shor Re'ehu';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It did not teach this for goring a Hekdesh ox, so 
               it pays full damage.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had the Torah come to exempt for goring a Hekdesh 
               ox, it would have written 'Shor Re'ehu' regarding a 
               Mu'ad!
<br>

sjt:
<p>
<font><b>2) ESTABLISHING A 'CHAZAKAH' WITH INTERVALS</b></font><b>
<br>QUESTION:</b> The Gemara quotes a dispute between Rav and Shmuel with regard to whether a woman establishes a Kevi'us by seeing Dam on the fifteenth day of one month, on the sixteenth day of the following month, and on the seventeenth day of the third month. Rav rules that this is considered a Kevi'us and she must therefore suspect that she will see Dam on the eighteenth day of the following month. Shmuel rules that this is not a Kevi'us since she did not see three times with a consistent interval between them. According to Shmuel, in order to establish a Kevi'us she must she Dam on the eighteenth day of the fourth month. If she sees Dam on that day, then she must suspect that she will see Dam on the nineteenth day of the fifth month. The Gemara says that Rav and Shmuel similarly disagree about whether an ox which gored in this sequence becomes a Mu'ad after the third goring (on the seventeenth day of the fourth month) or only after the fourth goring (on the eighteenth day of the fourth month).
</p><p>
The <b>RASHBA</b> questions the Gemara's assertion from the Beraisa quoted earlier (37a). The Beraisa states that if an ox gores one animal, sees another animal but does not gore it, sees a third animal and gores it, sees a fourth animal and but does not gore it, and then sees a fifth animal and gores it, the ox becomes a Mu'ad with intervals. The Beraisa clearly contradicts the view of Shmuel, who should require the ox to gore once more before it is declared a Mu'ad.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RA'AVAD</b> (in <b>BA'ALEI HA'NEFESH</b>, Sha'ar Tikun ha'Vestos, ch. 3) cites an opinion that Shmuel indeed understands that the Beraisa means that in order for the ox to become a Mu'ad in this manner, it must gore a fourth time.
</p><p>
(b) The Ra'avad argues and gives a different answer to the question of the Rashba. He explains that there are two types of intervals: intervals which focus on the days on which the event happens, and intervals which focus on the period of the interval itself. For example, if a woman sees Dam on Rosh Chodesh three months in a row, Shmuel agrees that she must suspect that she will see Dam on the fourth Rosh Chodesh. Even though she has not established three actual intervals of thirty days (but only two intervals), the focus in this case is not the interval but the day; since she has seen Dam on the same day of the month for three consecutive months, she must suspect that she will see Dam on that day in the following (fourth) month. This is similar to the Beraisa's case of the ox, in which case the ox gores every other animal that it sees.
</p><p>
The second type of interval gives no significance to the day itself, but only to the amount of time that has passed between the days. In such a case, Shmuel requires three intervals; the fact that the event occurred a third time does not establish any concern that it will happen a fourth time in a similar pattern.
</p><p>
The Ra'avad explains that the dispute between Rav and Shmuel revolves around how to classify the case of Nidah. Is the focus only on the number of days in the interval, or is the focus <i>also</i> on the specific days of the month on which the event happens? Rav maintains that the specific days are significant, and therefore it is viewed like events that happen on the same days of successive months. Shmuel maintains that the focus is primarily on the interval. Accordingly, Shmuel rules that three intervals are required before she needs to suspect that she will see Dam after a fourth interval. (Mordechai Zvi Dicker)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A NOCHRI'S OX</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a Yisrael's ox gored a Nochri's ox, the 
          Yisrael is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the since for this?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If 'Shor Re'ehu' is a condition to be liable, a 
               Nochri's ox that gored a Yisrael's ox should be 
               exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If 'Shor Re'ehu' is just a typical case, but the 
               Torah obligates even other cases, a Yisrael's ox 
               that gored a Nochri's ox should also be liable!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (R. Avahu):</font></b> '...(Hash-m) saw va'Yater (and 
          scattered) Nochrim' - He saw that they were not keeping 
          their seven Mitzvos, v'Hitir (and He permitted) their 
          money to Yisrael.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (R. Yochanan):</font></b> '(Hash-m) Hofi'a (appeared) 
          from Mount Paran' - from Paran (when the Nochrim refused 
          to accept the Torah), Hofi'a (He exposed, i.e. permitted) 
          their money to Yisrael.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support (Beraisa):</font></b> If a Yisrael's ox gored a 
               Nochri's ox, it is exempt;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If a Nochri's ox gored a Yisrael's ox, whether it 
                    is Tam or Mu'ad, it pays full damage. It says 
                    '...(Hash-m) saw va'Yater Nochrim', and 
                    '(Hash-m) Hofi'a from Mount Paran'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why are both verses needed?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that we need the 
               first verse to teach like Rav Masnah and Rav Yosef 
               (as follows).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>REWARD AND PUNISHMENT OF NOCHRIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Masnah):</font></b> '...(Hash-m) saw va'Yater Nochrim' - He 
          saw that they were not keeping their seven Mitzvos, and 
          exiled them from their land.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the source that va'Yater 
               connotes exile?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> 'Lenater (to jump) with them (extra legs 
               of grasshoppers) on the ground'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> '...Ra'ah va'Yater...' - Hash-m saw that 
          they were not keeping their seven Mitzvos, and released 
          them from their Mitzvos.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> Do they gain from their sins?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Mar brei d'Ravina):</font></b> No. He teaches that even if 
          they fulfill their Mitzvos, they are not rewarded for 
          them.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Meir):</font></b> '(The Mitzvos) that a man 
          will do and live in them' - it doesn't say that Yisraelim 
          will do, rather that a man will do!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This teaches that a Nochri who engages in Torah 
               is (rewarded) like a Kohen Gadol.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> They are not rewarded like one who is 
          commanded, rather like one who is not commanded.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Romi sent two officers to learn the Torah; 
          Chachamim taught them. They acknowledged the truth of 
          every point, except for one.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> The officers:</font></b> How can it be that a Yisrael's ox 
               that gores a Nochri's ox is exempt, but a Nochri's 
               ox (even a Tam) that gores a Yisrael's ox pays full 
               damage?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If 'Shor Re'ehu' is a condition to be liable, a 
                    Nochri's ox that gored a Yisrael's ox should be 
                    exempt;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If 'Shor Re'ehu' is not a condition, also a 
                    Yisrael's ox that gored a Nochri's ox should be 
                    liable!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The officers said that they would not tell this 
               to the authorities.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Rav Shmuel bar Yehudah's daughter died. Rabanan asked 
          Ula to go with them to console him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Ula:</font></b> The consolation they give in Bavel is 
               blasphemy! They say 'what can one do', which implies 
               that if one could do (differently than Hash-m did), 
               he would!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Ula went alone.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Ula):</font></b> 'Do not afflict Mo'av, and do not 
               start war with them' - why would Moshe think to wage 
               war if not commanded?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Ula):</font></b> Moshe made a Kal va'Chomer: Midyan 
               only came to help Mo'av, and we were commanded to 
               strike them. All the more so, we should strike the 
               Mo'avim!
<br>
<br>

sjt:
<font><b>1) A NOCHRI'S PROPERTY IS CONSIDERED 'HEFKER'</b></font><b>
<br>QUESTION:</b> The Mishnah (37b) states that when a Nochri's ox gores a Jew's ox, the Nochri must pay the full amount, whether his ox is a Tam or a Mu'ad. If a Jew's ox gores a Nochri's ox, the Jew does not have to pay.
</p><p>
The Gemara initially assumes that this exemption is based on the verse, 'Shor Re'ehu' -- 'If one man's ox harms his fellow man's ox...' (Shemos 21:35), which implies that one is obligated to pay only when his ox gores 'his fellow man's ox,' but not when it gores a Nochri's ox. The Gemara asks that if a Nochri is not included in the Torah's laws of payment for damages done by one's ox, then why must a Nochri pay when his ox gores a Jew's ox? Rebbi Avahu answers by quoting a verse which teaches that Hash-m allowed us to keep the money of Nochrim when they stopped observing the seven Mitzvos of Bnei Noach.
</p><p>
Does this mean that the money of Nochrim is considered ownerless? If the money of Nochrim indeed is considered ownerless, why does the Gemara mention it only in the context of damage caused by oxen?
</p><p>
<b>ANSWERS:</b> 
<br>(a) The <b>SHITAH MEKUBETZES</b> quotes <b>RABEINU YEHONASAN</b> who explains that since a Nochri is suspected of intentionally inciting his animals to damage the animals of Jews, he is penalized any time his animal damages a Jew's animal and he must pay full damages. This penalty serves as an incentive for the Nochri to refrain from inciting his animals to damage the animals (or other property) of Jews.
</p><p>
In contrast, when a Jew's an ox damages a Nochri's ox, the opposite logic applies. Since a Jew generally is very careful to prevent his animals from doing damage, Hash-m instructed (in this verse) that a Jew is exempt from paying for damages which his animal does to a Nochri. (In both cases, the law is established according to original intent and not according to the actual outcome.) The verse expresses this contrast, and thus the Chachamim understood that it should be applied in this manner.
</p><p>
(b) The <b>MAHARSHA</b> understands that the reason why a Nochri must pay the full value of the damage which his ox causes to a Jew, whether the ox is a Tam or Mu'ad, is that this is the law in the courts of Nochrim. Since Nochri law states that the full value of the damage must be paid by the owner of the damaging ox, a Jew is permitted to collect the money from a Nochri in accordance with his law. However, a Jew is exempt from paying when his ox damages a Nochri's ox because a Jew is generally permitted not to pay back a loan to a Nochri when the Nochri does not expect repayment of the loan. This is known as 'Hafka'as Halva'aso' (the cancellation of his debt). When one's ox damages another's, the owner of the damaging ox becomes indebted to pay for the damage. When a Jew's ox damages a Nochri's, the Jew does not have to pay this debt because of his right of 'Hafka'as Halva'aso.' (Mordechai Zvi Dicker)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hash-m:</font></b> No. Two special women will convert, Rus 
                    the Mo'avis and Na'amah the Amonis.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Ula:</font></b> Hash-m spared two nations due to two women 
               that would convert from them. If your (Rav Shmuel's) 
               daughter was proper, and good would have come from 
               her, all the more so Hash-m would have kept her 
               alive!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba):</font></b> Hash-m doesn't withhold reward for 
          anything, even for nice words!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Lot's older daughter (brazenly) called her son 
               Mo'av (from father). Hash-m commanded 'do not 
               afflict Mo'av, and do not start war with them', but 
               we may subjugate them to pay taxes;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Lot's younger daughter (modestly) called her son 
               Ben Ami (son of my nation). Hash-m commanded 'do not 
               afflict (Amon), and do not subjugate them' - at all.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba):</font></b> One should always do Mitzvos at the 
          first opportunity!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Because Lot's older daughter slept with him one 
               night earlier than her sister, she merited four 
               generations of descendants in Yisrael before a 
               descendant of her sister entered Yisrael;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Oved (Rus' son), Yishai, David and Shlomo descend 
                    from the older daughter. Rechavam, Shlomo's son 
                    from Na'amah, descends from the younger 
                    daughter.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DAMAGES TO AND OF KUSIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A Yisrael's ox gored a Kusi's ox, it is 
          exempt. If a Kusi's ox gored a Yisrael's ox, a Tam pays 
          half-damage, and a Mu'ad pays full damage;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Meir says, if a Kusi's ox gored a Yisrael's ox, 
          whether Tam or Mu'ad, it pays full damage.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Inference:</font></b> R. Meir holds that the Kusim converted due 
          to lions (that were eating them. Their conversion was 
          invalid, and they are Nochrim.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Contradiction (Mishnah):</font></b> All (blood) stains that come 
          from Rekem are Tehorim. (We are not concerned that it is 
          from a (Yisraelis) Nidah, for we assume that it is from a 
          Nochris);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah says, they are Teme'im, because 
               converts live there and they err (act like Nochrim).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Stains that come from places where Nochrim live 
               are Tehorim; 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Meir says, stains that come from places where 
               Yisraelim and Kusim live are Teme'im;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Chachamim say, they are Tehorim, for they are 
               careful about hiding away Tamei stains. 
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Summation of question):</font></b> R. Meir is Metamei 
               stains of Kusim. He must hold that they are true 
               converts!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Resolution (and rejection of Inference - R. Avahu):</font></b> 
          Really, they are valid converts. R. Meir fined them, lest 
          Yisraelim intermarry with them.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (R. Zeira - Mishnah):</font></b> If one who rapes or 
          entices a virgin Na'arah, pays the fine (of 50 Shekalim): 
          a Mamzeres, a Nesinah, a Kusis...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If R. Meir fines them monetarily, he should also 
               fine them not to receive this fine!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> He does not want a sinner (the man who 
          raped or enticed her) to profit.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> He should say that the fine goes to the poor!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Mari):</font></b> The rapist would avoid paying. He 
          could tell any poor man 'I will give it to someone else.'
<br>

sjt:
<p>
<font><b>2) PROPER CONSOLATION OF A MOURNER</b></font><b>
<br>QUESTIONS:</b> The Gemara (37b-38a) relates that when Rav Shmuel bar Yehudah's daughter died, the Rabanan asked Ula to accompany them to console the mourners. Ula declined to go, criticizing the way the people in Bavel console mourners. They would say, 'What could we have done?' Ula understood this as blasphemy for it implies that they would have done something had they been able.
</p><p>
The <b>YAM SHEL SHLOMO</b> (#10) explains that Ula criticized the way the people in Bavel comfort mourners because their comments implied that they were complaining about the way Hash-m runs the world. While such comments may be appropriate when consoling the relatives of a person who was put to death by an earthly king, they are not appropriate when consoling the relatives of a person who died at the hands of Hash-m.
</p><p>
The Gemara continues and relates that Ula went alone to console Rav Shmuel bar Yehudah. Ula said to Rav Shmuel bar Yehudah that Hash-m told Moshe that the reason why He did not permit the Jewish people to destroy the nations of Amon and Moav was because of the two daughters that would come from those nations: Rus and Na'amah. Accordingly, Ula told Rav Shmuel bar Yehudah, 'If Hash-m spared those nations because of these two women who would come from them, He certainly would have spared my master's daughter (the daughter of Rav Shmuel bar Yehudah) had she been fitting and good would have come from her.'
</p><p>
(a) Ula's words of consolation seem perplexing. Does a person 'console' a mourner by telling him that the deceased had nothing good to contribute to the world?
</p><p>
(b) The Yam Shel Shlomo asks further that the fact that neither the <b>RIF</b> nor the <b>ROSH</b> record Ula's words as an appropriate form of consolation implies that Ula's criticism of the words of the people of Bavel were not appropriate. How are their words, 'What could we have done,' to be understood?
</p><p>
<b>ANSWERS:</b> 
<br>(a) The <b>NACHALAS MOSHE</b> answers that great Tzadikim sometimes die at an early age because they have already completed their mission in life. A person is given life in order to complete and rectify his soul. If one achieves completion early, Hash-m takes him away. This was the consolation which Ula offered. Rav Shmuel bar Yehudah's daughter was so righteous that she had already rectified her soul, and there must have been no further good that she needed could do for herself or for the world, and therefore Hash-m took her away.
</p><p>
(b) The Yam Shel Shlomo explains that the consolation of, 'What could we have done,' was not an expression of complaint at all, and was more appropriate than Ula's form of consolation. 
</p><p>
The Yam Shel Shlomo explains that the consolation, 'What could we have done,' meant that all of our crying and pain would not have helped bring her back. David Ha'Melech made a similar comment when his child died. He said, 'Can I bring him back again?' (Shmuel II 12:23). These words are said to a mourner so that he not become overwhelmed in his sorrow. (Mordechai Zvi Dicker)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>OXEN THAT DO NOT PAY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a healthy person's ox gored the ox of a 
          Cheresh (deaf-mute), lunatic or child, he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the ox of a Cheresh, lunatic or child gored a 
               healthy person's ox, he is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If the ox of a Cheresh, lunatic or child gores, Beis 
          Din appoints an Apotropos (overseer). Witnesses testify 
          in front of the Apotropos.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Meir says, when the Cheresh or lunatic becomes 
          healthy, or the child grows up, the ox reverts to being 
          Tam;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yosi says, it keeps its status.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	An Itztadin ox (one that is trained to gore in 
          stadiums) is not killed - 'when (an ox) will gore (...it 
          will be stoned)', not when it is incited to gore.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> The Mishnah says that if the ox of a 
          Cheresh, lunatic or child gored a healthy person's ox, he 
          is exempt. I.e., we don't appoint an Apotropos to collect 
          from a Tam ox;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Seifa):</font></b> If the ox of a Cheresh, 
               lunatic or child gores, Beis Din appoints an 
               Apotropos, and witnesses testify in front of the 
               Apotropos (to collect from it)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> If the ox of a Cheresh, lunatic or child 
          is established to gore, Beis Din appoints an Apotropos, 
          and witnesses testify in front of the Apotropos to make 
          the ox Mu'ad. Future gorings are paid for from the Aliyah 
          (i.e., not from the ox itself).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> After it is Mu'ad, who pays?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (R. Yochanan):</font></b> The child pays.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (R. Yosi bar Chanina):</font></b> The Apotropos pays.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Did R. Yochanan really say that the child 
          pays?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> Beis Din collects from orphans' 
               property only to pay off a loan (from a Nochri) on 
               interest.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> They collect only for a loan on 
               interest, or to pay a Kesuvah (this exempts the 
               orphans from feeding the widow).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1:</font></b> We must switch the opinions of R. Yochanan 
          and R. Yosi bar Chanina.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> If so, R. Yosi bar Chanina obligates 
          the child for future gorings. This is wrong!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yosi bar Chanina was a judge. He descended to 
               the depth of judgment. Surely he did not say this!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Do not switch the opinions. A damager 
          is an exception to the normal rule;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan says we collect from the child. If we 
               would collect from the Apotropos, no one would agree 
               to be an Apotropos!
<br>
<br>

sjt:
<font><b>1) 'REBBI YAKOV PAYS CHATZI NEZEK'</b></font><b>
<br>QUESTION:</b> The Gemara cites a Beraisa which states that if the Shor of a Cheresh, Shoteh, or Katan gores someone else's Shor, 'Rebbi Yakov pays Chatzi Nezek.' The Gemara asks, what is Rebbi Yakov paying for? It was not his ox that gored! The Gemara answers that the Beraisa should read instead, 'Rebbi Yakov <i>says</i> [that one] pays Chatzi Nezek.'
</p><p>
If the Tana of the Beraisa made such an obvious mistake, why does the Gemara quote the original version of the Beraisa? The Gemara should have emended the Beraisa and quoted the corrected version in the first place! (<b>HAGAHOS YA'AVETZ</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>YA'AVETZ</b> answers that even when the Gemara emends the text of a Beraisa by saying 'Ela Eima...' ('rather, say...'), it does not mean that the original version was a mistake. Rather, it means that the intention of the Beraisa is as such, and even without emending it the Beraisa may be read in a way that conveys this meaning.
</p><p>
The Ya'avetz explains that Rebbi Yakov was the Av Beis Din, and in that capacity he was considered responsible for Yesomim (see beginning of 37a). Therefore, he acted as the Apotropos (custodian) for the Yesomim who came to his court. When their Shor gored, he paid out of his own funds to cover their obligation of Chatzi Nezek (as the Gemara earlier requires the Apotropos to pay; according to Rebbi Yochanan, he paid out of the estate of the Yesomim).
</p><p>
<b>TOSFOS</b> in a number of places (see Yevamos 25b, DH b'Omer) makes a similar point regarding the word 'b'Omer' in the Gemara's explanation of a statement of a Tana or Amora. The Gemara does not mean to say that the person actually said it, but that this is what he meant by what he did say. <b>TOSFOS</b> (Kesuvos 4b, DH u'Mi; Bava Metzia 45b, DH Mai) and the <b>RAN</b> (Nedarim 46a, DH Teni Nadar) write that the same sometimes applies when the Gemara says 'Teni'; it does not mean to correct the wording of the Beraisa but merely to explain the meaning of the Beraisa. The same explanation is given for the word 'Eima' (the term used by the Gemara here) by Tosfos in Bava Basra (80b, DH Taritz v'Eima); it does not mean that the wording of the Beraisa is incorrect and must be fixed, but that one should understand the intention of the words of the Beraisa as such.
</p><p>
<b>RAV YOSEF ENGEL</b> in <b>BEIS HA'OTZER</b> (1:179), in a lengthy discourse, gives two explanations for the Gemara's usage of the word 'Eima' in dozens of places. When the Gemara says that the words of a Beraisa 'should say' -- 'Eima' -- something else, it means either that this is the intention of the words of the Beraisa without any emendation, or that the Beraisa's statement holds true without the emendation and it is teaching something else (through Kabalah). The <b>VILNA GA'ON</b> (end of <b>DIVREI ELIYAHU</b>, 'Kelalim') takes this further and says that when the Gemara uses the term, 'Chesurei Mechasra v'Hachi Katani,' it does not mean to change the original text of the Tana, but rather the original text remains valid, and the Gemara means either that the words of the Tana can be read to mean what the Gemara says that it means, or the original words of the Tana teach a different point. This understanding of 'Chesurei Mechasra' was actually proposed before the Vilna Ga'on, by <b>RABEINU BACHYE</b> (Shemos 34:27).
</p><p>
(b) The <b>PANIM YAFOS</b> (end of Vayishlach) suggests an interpretation with a Kabalistic connotation of the original reading of the Beraisa. The Beraisa teaches that Yakov Avinu and his descendants are suffering for the half-damage (Chatzi Nezek) for which Yakov Avinu was responsible.
</p><p>
On the verse, 'v'Achos Lotan Timna' -- 'the sister of Lotan was Timna' (Bereishis 36:22), Rashi explains that Timna wanted to marry into the family of the Avos. When she was not accepted by Yakov or his children, she went and became the Pilegesh (concubine) of Elifaz, son of Esav. The <b>ARIZAL</b> writes that the wisdom that is found among the nations (see Eichah Rabah 2) comes from the wisdom that was rejected and was left 'behind' the wisdom of Hash-m that He granted to Yisrael. The Panim Yafos asserts that this is alluded to in the above verse. The letters that spell 'Lotan' are each one letter 'behind' the letters of 'Chochmah.' The word 'sister' also alludes to Chochmah (Mishlei 7:4; see Berachos 57a). Timna, who represents the 'rejected wisdom' of the nations, first approached Yakov Avinu to rectify and perfect that wisdom. Yakov Avinu was able to help her only partially, by rectifying the 'Taf' and 'Mem' of 'Timna,' by virtue of his being an 'Ish <i>Tam</i>' (Bereishis 25:27), which is why 'Yakov Avinu Lo <i>Mes</i>' ('Tam' and 'Mes' comprise the letters 'Taf' and 'Mem'), since he overpowered the opposing forces with that half of 'Timna.' However, he was not able to rectify the letters 'Nun' and 'Ayin' of 'Timna,' and therefore Timna took that part of the remaining wisdom to the nations of the world by marrying Elifaz. 'Ayin' and 'Nun' are the root letters of 'Ani,' and that is why Elifaz was able to take away all of the possessions of Yakov, leaving him an 'Ani,' a poor person, since he had control over the 'Ayin-Nun' of Timna. When the Egyptians said, 'Havah Nischakmah Lo' -- 'Let us make ourselves wise over them' (Shemos 1:10), they were using this wisdom to cause 'Inuy' (from 'Ayin-Nun'), affliction, to the Jewish people.
</p><p>
This is what the Beraisa alludes to when it says that 'Rebbi <i>Yakov</i> pays half of the damage' -- Yakov Avinu is responsible for the damage caused by the other half of Timna whom he rejected.
</p><p>
(c) The Rishonim explain that Rebbi Yakov's intention is to teach that one pays <i>only</i> Chatzi Nezek and not <i>all</i> of the Nezek. He does not mean to teach that one must pay half and not <i>nothing</i>. Rashi and Tosfos explain that this is evident from the fact that Rebbi Yakov adds the words 'Chatzi Nezek' and does not say merely that 'one is obligated.'
</p><p>
Actually, Rebbi Yakov does not use the term '<i>Mechayev</i> Chatzi Nezek,' but rather '<i>Meshalem</i> Chatzi Nezek.' The reason for this is that he uses this term in the Beraisa later in reaction to Rebbi Yehudah who says 'Mechayev.' He cannot use the same word as Rebbi Yehudah, since he is explaining (or arguing with) Rebbi Yehudah, and therefore he uses the word 'Meshalem.' The word 'Meshalem,' however, cannot be used by itself, since 'Meshalem' does not mean a ruling of obligation or exemption, but rather it refers to an amount that must be paid. Therefore, the word 'Meshalem' must always appear with an amount that must be paid. Why, then, does the fact that he adds the words 'Chatzi Nezek' imply that Rebbi Yakov intends to exclude Nezek Shalem? Perhaps he adds the words 'Chatzi Nezek' because he uses the term 'Meshalem' and must complete his sentence!
</p><p>
Perhaps it is for this reason that the Beraisa omits the word 'Amar' and instead says that 'Rebbi Yakov pays Chatzi Nezek,' using the word 'Meshalem' as a transitive verb (which means that he 'makes others pay') similar to the word 'Mechayev.' If 'Meshalem' is used in such a manner, it does not need to be associated with an amount ('Chatzi Nezek') but can mean simply that the person is obligated, just like the word 'Mechayev.' It is from the fact that the Beraisa omits the word 'Amar' that we may infer that the emphasis is on paying Chatzi Nezek as opposed to paying Nezek Shalem (in contrast to emphasizing Chatzi Nezek as opposed to being exempt altogether).
</p><p>



<font><b>2) DAMAGE CAUSED BY THE OX OF A 'CHERESH, SHOTEH, V'KATAN'</b></font><b>
<br>QUESTION:</b> The Gemara cites a Beraisa in which Rebbi Yakov states that if the Shor of a Cheresh, Shoteh, or Katan gores someone else's Shor, the Apotropos must pay only Chatzi Nezek (and not Nezek Shalem; see <b>RASHI</b> DH b'Mai Askinan, and <b>TOSFOS</b> DH Iy). Rava explains that Rebbi Yakov intends to teach that even if the Shor is a Mu'ad, he is obligated to pay only Chatzi Nezek as long as he guarded the Shor with a 'Shemirah Pechusah,' a minimal amount of Shemirah. This is because Rebbi Yakov rules that the owner of a Shor Tam is obligated if it does damage while being guarded with a 'Shemirah Pechusah,' and he rules that the 'Tzad Tamus,' the Tam-element of the Shor, remains in the Shor even when it becomes a Mu'ad.
</p><p>
If Rebbi Yakov's main point is that it suffices to guard a Mu'ad with a 'Shemirah Pechusah' and therefore the owner pays only Chatzi Nezek (for the Tzad Tamus in it) and not Nezek Shalem, why does he teach this Halachah only with regard to a Shor that belongs to a Cheresh, Shoteh, or Katan? This Halachah should apply regardless of who owns the Shor, and Rebbi Yakov should have taught this Halachah with regard to an ordinary Shor of an ordinary owner. (<b>PNEI YEHOSHUA</b>)
</p><p>
<b>ANSWERS:</b> 
<br>(a) The <b>PNEI YEHOSHUA</b> answers that one might have thought that Beis Din is more lenient when the Shor belongs to a Cheresh, Shoteh, or Katan. One might have thought that in order to encourage people to become Apotroposim for the animals of a Cheresh, Shoteh, and Katan, Beis Din exempts the Apotropos even for the damage caused by the Tamus-part of the animal when it was guarded with a 'Shemirah Pechusah.' Otherwise, people would refrain from becoming Apotroposim, because they will need to guard the animals with a 'Shemirah Me'ulah.' Rebbi Yakov teaches that even when the Shor belongs to a Cheresh, Shoteh, or Katan, the Apotropos must still pay for the 'Tzad Tamus.'
</p><p>
(b) The Gemara later (40a) concludes that Rebbi Yakov actually may intend to teach simply that a Shor Tam of a Cheresh, Shoteh, or Katan must pay Chatzi Nezek because of the rule that 'Ma'amidin Apotropos l'Tam.' (See Tosfos DH ad'Mukei.)
</p><p>
The Gemara explains that the reason why Rava said that Rebbi Yakov obligates one to pay Chatzi Nezek when the Shor is a Mu'ad, and an Apotropos guards it with a 'Shemirah Pechusah,' is that it was clear to Rava that Rebbi Yakov agrees with Rebbi Yehudah's opinions regarding 'Tzad Tamus' and 'Shemirah Pechusah,' just as he agrees with Rebbi Yehudah's opinion regarding the obligation of an Apotropos to pay for damages of a Tam.
</p><p>
Accordingly, Rava might not mean to say that the Beraisa of Rebbi Yakov actually discusses a Shor Mu'ad that damaged while it was being guarded with a 'Shemirah Pechusah.' Rather, he might mean simply that Rebbi Yakov's ruling would be valid even if the Shor was a Mu'ad and the owner guarded it with a 'Shemirah Pechusah,' since Rebbi Yakov agrees with Rebbi Yehudah's opinions. However, Rava agrees that the Beraisa of Rebbi Yakov indeed discusses a Shor Tam, and that it teaches that an Apotropos must pay for the damages of a Tam, and that is why Rebbi Yakov mentions the damages caused by the Shor of a Cheresh, Shoteh, or Katan. (M. Kornfeld)
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi bar Chanina says that we collect from the 
               Apotropos. When the child grows up, the Apotropos 
               collects from him.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>COLLECTING FROM PEOPLE WHO ARE NOT HERE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Tana'im argue about whether or not we appoint an 
          Apotropos to collect from a Tam.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Sumchus):</font></b> If Reuven became deaf or 
               insane, or went overseas, his ox is Tam until 
               witnesses testify (three times) in front of him 
               (when he is well);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, we appoint an Apotropos, and 
               witnesses testify in front of the Apotropos;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Sumchus says, if Reuven recovered, grew up or 
               returned from overseas, his ox reverts to be Tam 
               until witnesses testify in front of him;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yosi says, the ox keeps its status.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Sumchus said 'his ox is Tam (until witnesses 
          testify). What does this mean?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Witnesses do not testify to make it 
               Mu'ad (in his absence).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> The Reisha says 'his ox reverts to be 
               Tam.' This shows that it became Mu'ad!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, 'his ox is Tam' - it is in its Temimus 
          (entirety). I.e. we do not appoint an Apotropos to 
          collect from a Tam ox in Reuven's absence (but we accept 
          testimony to make it Mu'ad);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim argue, and say that we appoint an 
               Apotropos to collect from a Tam!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about in the Seifa?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about whether a change in Reshus 
          (jurisdiction) changes status of the ox.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Sumchus says that a change in Reshus changes its 
               status. R. Yosi says that it does not.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>R. YAKOV'S OPINION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa #1):</font></b> The ox of a Cheresh, lunatic or child 
          gored;, R. Yakov pays half-damage.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection:</font></b> Why should R. Yakov pay?!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, R. Yakov says that it pays half-
          damage.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case (in which R. Yakov needed to 
          teach that it pays half-damage)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is Tam, this is obvious. Every Tam pays 
               half-damage!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is Mu'ad.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> If it was guarded well, it is exempt. 
               If it was not guarded, it pays full damage!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Really, it is Mu'ad. It was guarded, but 
          not well guarded;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yakov holds like R. Yehudah, who says that 
               when an animal becomes Mu'ad, it retains the 
               obligation to pay for half-damage like a Tam;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He holds like R. Yehudah, that a Mu'ad is exempt 
               if one guarded it minimally (so he is exempt from 
               the additional half that a Mu'ad pays);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> He holds like Chachamim, that we appoint an 
               Apotropos to collect from a Tam (so he pays this 
               half).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> R. Yakov does not hold like R. 
          Yehudah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #2 - R. Yehudah):</font></b> If the ox of a 
               Cheresh, lunatic or child gored, it is liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yakov says, it pays half-damage.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rabah bar Ula):</font></b> They don't argue. R. Yakov 
          explains R. Yehudah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> According to Abaye, what do they argue about?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> They argue about a Mu'ad that was not 
          guarded at all. R. Yakov holds like R. Yehudah regarding 
          one law, but not regarding another.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He agrees that when an animal becomes Mu'ad, it 
               retains liability to pay half-damage like a Tam;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah holds that we appoint an Apotropos to 
               collect from a Tam. R. Yakov holds that he is 
               appointed only to collect the extra half-damage of 
               Mu'ad.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE ARGUMENT OF R. YAKOV AND R. YEHUDAH </font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Acha bar Abaye):</font></b> Granted, Abaye holds that 
          R. Yakov and R. Yehudah argue (Beraisa #1 must discuss a 
          Mu'ad, for R. Yakov holds that we do not appoint an 
          Apotropos to collect from a Tam);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But Rava holds that all agree (that we appoint an 
               Apotropos to collect from a Tam). He should 
               establish Beraisa #1 to discuss a Tam, not a Mu'ad!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If R. Yakov holds like R. Yehudah (who says that 
               minimal guarding does not suffice for a Tam 
               (Mishnah, 45b), the case would be that) he guarded 
               it minimally. If he holds like R. Eliezer ben Yakov 
               (in the coming Beraisa), he did not guard it at all.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Eliezer ben Yakov):</font></b> A Tam or Mu'ad 
                    is exempt if it was guarded minimally.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Summation of question):</font></b> The Chidush would be 
               that we appoint an Apotropos to collect from a Tam!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> Rava established the Beraisa to 
          discuss a Mu'ad, so it teaches that when an animal 
          becomes Mu'ad, it retains liability for half-damage like 
          a Tam.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 ((to Question 3:h, 39b) - Ravina):</font></b> R. Yakov 
          and R. Yehudah argue about whether or not a change in 
          Reshus changes the status of the ox.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case is, a Cheresh, lunatic or child owned a 
               Mu'ad ox. He became healthy or grew up.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, the ox is still Mu'ad (a change 
               in Reshus does not change its status);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yakov says, it is now Tam.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>KOFER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> An Apotropos pays from the Aliyah (not from 
          the animal). He does not pay Kofer (ransom for a Mu'ad 
          that killed a person).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Who is this Tana, who holds that Kofer is for 
          atonement, and orphans do not need atonement?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> It is R. Yishmael (the son of R. 
          Yochanan ben Berokah);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'He (the owner of the ox that killed) 
               will give the redemption of his soul' - the value of 
               the victim;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yishmael says, he gives the value of the 
               (owner of the) damager.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Chachamim hold that Kofer is a 
               payment for damage; R. Yishmael holds that it is a 
               Kaparah (atonement).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection (Rav Papa):</font></b> No, all hold it is a 
               Kaparah. They argue about how we assess the payment.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Why do Chachamim obligate the value of 
               the victim?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> The Torah writes Shisa (an assessment) 
               regarding compensation for causing a fetus to die, 
               and regarding Kofer. Just like regarding a fetus, we 
               evaluate the victim's value, also regarding Kofer.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> R. Yishmael learns from 'he will give the 
               redemption of his soul' (the damager needs to redeem 
               his soul).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Chachamim agree (that the damager needs to redeem 
               his soul), but the payment is like the value of the 
               victim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (R. Acha bar Yakov #1):</font></b> How does the ox of two 
          partners pay Kofer?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Each cannot pay. The Torah said (one) Kofer, not 
               two!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Each cannot pay half. The Torah discusses (full) 
               Kofer, not half-Kofer!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question #2 (R. Acha bar Yakov - Mishnah):</font></b> The Gizbar 
          (treasurer of Hekdesh) take securities from people who 
          pledged Erchin (to give to Hekdesh an amount based on a 
          person's age and gender), but not from people obligated 
          to bring Korban Chatas or Olah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does he take securities from people liable to pay 
               Kofer?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Since it is a Kaparah, people are concerned to 
               bring it, it is like Chata'os and Olos, so he need 
               not take securities;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Or, since it is paid to a person, and not to 
               Hekdesh, people take it lightly, so he takes 
               securities!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Alternatively, he himself did not damage, he 
               takes it lightly, so we take a security from him!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> I am still struggling with the first 
          question!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>RESPONSIBILITY OF A BORROWER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven lent an ox to Shimon and told him 
          that it is Tam, and it was found to be Mu'ad (and it 
          damaged), each pays half-damage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it was Tam and became Mu'ad while with Shimon 
               and he returned it (and then it damaged), Reuven 
               pays half-damage, and Shimon is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> In the first case, why does Shimon pay half? 
          He can say that he didn't know that it is a gorer!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> The case is, he knew that it was a 
          gorer (but not that it had gored three times).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Still, he can say that he intended to borrow 
          only a Tam!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> In any case, he would be responsible for half-
          damage. That is all we ask him to pay!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Shimon can say, a Tam pays only from itself 
          (not from my money)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> In any case, if the animal was collected, 
          Shimon could not return it and would need to compensate 
          Reuven!
<br>
<br>

sjt:
<font><b>1) RAVA'S INTERPRETATION OF REBBI YAKOV'S RULING</b></font><b>
<br>QUESTION:</b> The Gemara asks why Rava chooses to explain that Rebbi Yakov's ruling means that one is obligated to pay Chatzi Nezek for damage done by a Shor <i>Mu'ad</i> of a Cheresh, Shoteh, or Katan. Why does he not explain that Rebbi Yakov obligates one to pay Chatzi Nezek for damage done by a <i>Tam</i>? (Although the Gemara (39b) assumes that Rebbi Yakov does not refer to a Tam because that Halachah is obvious, the Gemara now reconsiders this position; see Tosfos to 39b, DH ad'Muki.)
</p><p>
The Gemara answers that Rava wants to teach additional points in his interpretation of the Beraisa. Rashi explains that Rava teaches that not only does Rebbi Yakov agree with Rebbi Yehudah with regard to an Apotropos' obligation to pay for damages caused by a Tam, he also agrees with Rebbi Yehudah on two other points: that 'Tzad Tamus bi'Mekomah Omedes,' and that one is liable for damages caused by a Tam when he guarded it with a 'Shemirah Pechusah.' 
</p><p>
However, the question remains: how does Rava know that Rebbi Yakov agrees with Rebbi Yehudah on those two additional points if it cannot be inferred from the Beraisa?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH Ela Chada) implies that Rava assumes that if Rebbi Yakov agrees with Rebbi Yehudah on the first point, he probably agrees with him on the other points as well, even though it cannot be proven definitely. Perhaps Rashi means that since Rebbi Yakov explains the words of Rebbi Yehudah in the Beraisa (according to Rava), we may assume that Rebbi Yakov is a Talmid of Rebbi Yehudah and accepted Rebbi Yehudah's other rulings as well.
</p><p>
(b) The <b>RASH</b>, cited by the Shitah Mekubetzes, explains that it can be inferred from the Beraisa in which Rebbi Yakov explains Rebbi Yehudah's words that Rebbi Yehudah is discussing a Mu'ad and not a Tam. Although Rebbi Yakov finds it necessary to explain Rebbi Yehudah's words, a Tana never explains what case another Tana refers to; rather, Rebbi Yakov must simply be clarifying <i>how much</i> Rebbi Yehudah requires the person to pay. The Beraisa knows, even without Rebbi Yakov's words, the case which Rebbi Yehudah discusses (whether a case of Tam or Mu'ad).
</p><p>
Accordingly, one may reason as follows. If Rebbi Yehudah would be discussing a Tam, it would not be necessary for Rebbi Yakov to emphasize that Rebbi Yehudah obligates one to pay only Chatzi Nezek (since a Tam always pays only Chatzi Nezek). Rather, Rebbi Yehudah must be discussing a Mu'ad which sometimes pays Nezek Shalem, and that is why Rebbi Yakov finds it necessary to add that in this case he pays only Chatzi Nezek. Hence, it is clear from the Beraisa itself that Rebbi Yakov and Rebbi Yehudah are discussing a Mu'ad which one guarded with a 'Shemirah Pechusah' and therefore pays only Chatzi Nezek, and Rebbi Yakov must agree with Rebbi Yehudah on all three points.
</p><p>
(c) The <b>RE'AH</b> in the Shitah Mekubetzes explains that Rava infers this from the fact that Rebbi Yakov repeats in the second Beraisa that the Shor of a Cheresh, Shoteh, or Katan pays Chatzi Nezek, even though he already stated that in another Beraisa (the Beraisa which mentions the view of Rebbi Yehudah). It must be that Rebbi Yakov is not just teaching that an Apotropos pays for damages caused by a Shor Tam, but he is adding another point -- that an Apotropos pays Chatzi Nezek for damages caused by a Shor Mu'ad as well (when he watches it with 'Shemirah Pechusah').
</p><p>
(The Re'ah explains further that this in fact is the intention of the Gemara (39b) when it explains that Rebbi Yakov cannot refer to a Shor Tam because 'Peshita,' it would be obvious. The Gemara means that Rebbi Yakov already taught in another Beraisa the Halachah of a Shor Tam, and therefore here he must be teaching an additional Chidush, as the Gemara concludes here.
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection:</font></b> Shimon can say, if it were Tam, I could have 
          admitted to the damage, to be exempt!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even according to the opinion that half-damage is 
               not a fine (and even one who admits pays), he could 
               have hidden the animal from Beis Din, to evade 
               payment! (Tosfos - i.e. therefore he could have 
               persuaded the victim to agree to a small payment).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, the case is, Beis Din seized the 
          animal.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why does Reuven pay half? He can say, 
          you put my animal in (allowed it to be taken to) a place 
          from where I cannot retrieve it!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Shimon can say, even had I returned it to you, 
          Beis Din would have taken it.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Reuven can say 'I could have hidden the 
          animal!'
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #1:</font></b> That doesn't help for a Mu'ad.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> That answer is only if Reuven has other 
          property that Beis Din can collect from. If Reuven has no 
          other property, what can we say?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Shimon can say, just like I owe you (the 
          return of your animal), I owe the victim (since you owe 
          him), due to R. Nasan's law (so you cannot blame me for 
          letting Beis Din take it);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Nasan):</font></b> 'He will give to the one he sinned 
               against' teaches that if Levi owes David and David 
               owes Moshe, we take from Levi to pay Moshe.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>A CHANGE IN RESHUS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If it was Tam and became Mu'ad while with 
          Shimon and he returned it (and then it damaged), Reuven 
          pays half-damage, and Shimon is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> The Seifa holds that a change in Reshus 
          changes status of the ox, and the Reisha says that it 
          does not!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (R. Yochanan):</font></b> Different Tana'im taught the 
          two clauses.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rabah):</font></b> It is all like one Tana. The Reisha 
          teaches that a change in Reshus does not change status of 
          the ox;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The reason for the Seifa is that Shimon's 
               negligence cannot cause Reuven's ox to be considered 
               Mu'ad by Reuven.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #3 (Rav Papa):</font></b> It is all like one Tana. The 
          Seifa teaches that a change in Reshus changes status of 
          the ox;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The reason for the Reisha is that it is always 
               considered Reuven's ox (giving it to someone else 
               who will guard it is not a change in Reshus).
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>AN OX TRAINED TO GORE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> An Itztadin (stadium) ox is not killed...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> May it be offered for a Korban?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> Yes, for it was forced (to gore).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> No, for a sin was done with it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> 'From the animals' excludes a 
          Rove'a or Nirva (an animal that had Bi'ah with a woman or 
          man; it may not be offered). 'From the cattle' excludes 
          an animal that was worshipped. 'From the flock' excludes 
          an animal designated for idolatry. 'And from the flock' 
          excludes a gorer (that killed).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Shimon:</font></b> The Torah needs to exclude both a 
               Rove'a and a gorer, for each has different laws.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A Rove'a has the same law whether or not it was 
                    forced. This does not apply to a gorer.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  A gorer pays Kofer, but a Rove'a does not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> R. Shimon said the law of Rove'a is 
               the same whether or not it was forced, but this is 
               not true about a gorer. This refers to (being 
               disqualified for) a Korban.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> No, it refers to being killed.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support:</font></b> Presumably, it does not refer to a Korban. The 
          Torah did not explicitly say that it is disqualified only 
          if it was not forced (and R. Shimon considers this 
          distinction obvious).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A gorer pays Kofer, but a Rove'a does not.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case (in which a Rove'a does not 
          pay Kofer)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it killed through Bi'ah, why is this be 
               different than killing with its horns?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it had Bi'ah and did not kill, it is exempt 
               from Kofer because it did not kill (this is not a 
               stringency of a gorer)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> Really, it had Bi'ah and did not 
          kill. The woman (with whom it had Bi'ah) was killed by 
          Beis Din.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that this is like killing 
               her. The Beraisa teaches that this is not so.
<br>

sjt:
<p>
<font><b>2) THE BORROWER'S OBLIGATION TO PAY FOR DAMAGES CAUSED BY THE BORROWED OX</b></font><b>
<br>QUESTION:</b> A Beraisa teaches that when a person borrows an ox under the assumption that it is a Tam and it turns out to be a Mu'ad, the borrower (Sho'el) pays half of the damages and the owner pays half of the damages. The Gemara asks that the Sho'el should be exempt entirely; he should be able to claim that had the animal been a Tam as he thought it was (until he was brought to Beis Din) he would have admitted to the damage in court and exempted himself from payment, according to the opinion that Chatzi Nezek is a Kenas. The Gemara adds that even according to the opinion that Chatzi Nezek is not a Kenas, he should be able to exempt himself by claiming that had the animal been a Tam he would have chased it away to the marshes, and then the Nizak would not have been able to collect 'mi'Gufo' (and the Sho'el would have been able to use the ox in the marshes).
</p><p>
The Gemara answers that the case in which the Sho'el pays half is when Beis Din seizes the ox before the Sho'el is able to chase it away to the marshes.
</p><p>
How does this answer the first part of the Gemara's question? Even after Beis Din seizes the ox, at any time before witnesses testify about the goring the Sho'el still can admit to the Kenas and become exempt from paying ('Modeh b'Kenas')! 
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> (Sefer ha'Zechus, end of third Perek of Kesuvos), cited by the <b>KETZOS HA'CHOSHEN</b> (1:8), cites the Gemara according to the Girsa of <b>RABEINU CHANANEL</b> that it was the '<i>Ba'al Din</i>' (the Nizak) who seized the ox, and not 'Beis Din.' He explains that if there are no witnesses who can testify that this animal belongs to the Sho'el and not to the Nizak who is presently holding it, the Nizak is believed in court when he claims that this Shor damaged him, since he has a 'Migu.' He could have said, 'I bought the Shor and therefore it is mine,' and he would have been believed since he is presently in possession of the Shor. When he says, 'The Shor is mine because it damaged me and I am entitled to collect the payment from its body (mi'Gufo),' he is believed. A Migu supports a claim comparable to the way that testimony of witnesses supports a claim. Therefore, if the Nizak seizes the ox before the Sho'el admits to the damages, it will be as if witnesses came to testify about the damage before the Sho'el admits, and in such a case his admission will not be able to exempt him from paying. (The <b>RE'AH</b> cited by the Shitah Mekubetzes here writes a similar answer.)
</p><p>
(b) The <b>RA'AVAD</b> in Kesuvos disagrees with the Ramban and writes that the admission of the Mazik helps even after the Nizak has proof to his claim through a Migu (see <b>TUR</b> CM 399, in the name of <b>RAMAH</b> and <b>ROSH</b>). According to this view, the Gemara cannot be explained in the way that the Ramban explains it even if the Ra'avad's Girsa is that the 'Ba'al Din,' the Nizak, seized the ox.
</p><p>
The <b>KETZOS HA'CHOSHEN</b> in the name of his brother explains that according to the Ra'avad's own opinion elsewhere, the Gemara can be understood in a simple manner, according to the Girsa of Rabeinu Chananel. The Ra'avad rules that the Kenas of Chatzi Nezek differs from other penalties. Although the Ba'al Din's seizure of the money usually does not entitle the Ba'al Din to keep the Kenas if his opponent admits to owing it, nevertheless the Nizak's seizure of the Chatzi Nezek <i>does</i> entitle the Nizak to the money even if the Mazik is Modeh. (He explains that Chatzi Nezek of Keren is a greater obligation that a normal Kenas, since it is directly related to the amount of damage that was caused. Hence, when the Nizak seizes the ox in this case, the Hoda'ah of the Sho'el no longer can exempt him from paying.)
</p><p>
(c) According to the Girsa of our texts, that <i>Beis Din</i> seized the ox, it seems that the Gemara relates only to the second part of its question and assumes that Chatzi Nezek is Mamon and not Kenas.
</p><p>
How, though, does the opinion that Chatzi Nezek is a Kenas explain the Beraisa?
</p><p>
Perhaps the Gemara means that if the Sho'el admits only after Beis Din seizes the ox, his admission cannot exempt him from paying since he is like a person who sees witnesses coming and hurries to court to admit his guilt before they come in order to exempt himself (so that he will remain exempt even after the witnesses testify; see 75a). Since Beis Din would not have seized the ox unless they had found ample evidence to show the Sho'el's guilt, it must be that this is why the Sho'el hurried to be Modeh; he knew that Beis Din had evidence of his guilt and he was attempting to exempt himself through his admission! The Gemara, therefore, answers the first part of its question as well, since after the animal is seized the Sho'el's admission no longer helps to exempt him.
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CASES IN WHICH KOFER IS PAID</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Really, it killed through Bi'ah. This 
          is unlike goring. A gorer intends to kill. This animal 
          intended for its own benefit.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What do Abaye and Rava argue about?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about an ox that trampled a baby in 
          the victim's premises.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Abaye holds that it pays Kofer. Rava holds that 
               (the Tana of the Beraisa says) it does not (because 
               it did not intend to kill).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support (for Rav - Beraisa):</font></b> An Itztadin ox is not 
          killed, and it is acceptable for a Korban, because it is 
          as if it was forced.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If an ox gored and killed a man, if it was 
          Mu'ad, it pays Kofer. If it was Tam, it is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In either case, the ox is killed.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The same applies to killing a boy or girl.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If it killed a slave, it pays 30 Shekalim, even if the 
          slave is worth much more or much less.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CASES IN WHICH KOFER IS PAID</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Since we kill even a Tam, how can it 
          become Mu'ad?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> The case is, it chased three people. 
          We estimate that had they not fled, it would have killed 
          all of them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (Rav Ashi):</font></b> Our estimation has no bearing!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> The case is, it gored three 
          people, making them dangerously sick (and they died 
          later).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #3 (Rav Zvid):</font></b> It killed three animals.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Must we say that Mu'ad for animals is Mu'ad 
          for people?!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #4 (Rav Simi):</font></b> It killed three Nochrim.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Must we say that Mu'ad for Nochrim is Mu'ad 
          for Yisraelim?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #5 (Reish Lakish):</font></b> It killed three people who 
          were Tereifos.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Must we say that Mu'ad for Tereifos is Mu'ad 
          for healthy people?!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #6 (Rav Papa):</font></b> Each time it killed, it fled and 
          we were unable to kill it.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #7 (R. Acha brei d'Rav Ika):</font></b> Reuven and David 
          testified about the first goring, and were Huzmu (Moshe 
          and Kalev (the Mazimim) testified that Reuven and David 
          were not where they claimed to see the goring). Also the 
          witnesses about the second goring were Huzmu;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> After witnesses testified about the third goring, 
               (the Mazimim were Huzmu, so) we realized that the 
               witnesses about the first two gorings really told 
               the truth.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> This is like the opinion that the testimony 
          is to establish the ox like a gorer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But according to the opinion that it is to warn 
               the owner to guard his animal, he thought that the 
               first witnesses lied (he was not warned until now)!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, (witnesses testify that) the owner 
          saw all the gorings.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #8 (Ravina):</font></b> The witnesses recognized the ox' 
          owner, but did not recognize the ox (until after all the 
          gorings).
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> Why should the owner pay Kofer? What should 
          he have done?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> He should have guarded all his oxen.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DERIVING BENEFIT FROM AN OX THAT MUST BE STONED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa) Question:</font></b> Since 'you will stone the ox', it 
          will be a Neveilah (an animal that died without 
          slaughter). Why did the Torah need to written 'its flesh 
          will not be eaten'?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches that even if it was slaughtered, 
          it may not be eaten.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that one may not benefit 
          from it?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> 'The owner of the ox is clean'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> How do we learn from this?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Shimon ben Zoma):</font></b> This is like people say, 
          'Ploni is clean of his property, and has no benefit from 
          it'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that 'its flesh will not 
          be eaten' applies when it was slaughtered? Perhaps it 
          forbids benefit when it was stoned, like R. Avahu taught!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Avahu):</font></b> Wherever the Torah said 'it will not 
               be eaten' or 'you will not eat', it forbids even 
               benefit, unless the Torah explicitly permits 
               benefit, like regarding Neveilah (it permits giving 
               it to a non-Yisrael who keeps his seven Mitzvos, or 
               selling it to a Nochri).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Avahu's law applies only when 'it will not 
          be eaten' forbids eating it. Here, we already know that 
          one may not eat it because it must be stoned!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the verse came to forbid benefit, it should 
               have said 'one will not benefit';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b>Alternatively, it could have said (only) 'it will not 
               be eaten';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It adds 'its flesh' to teach that even if it was 
                    slaughtered like meat, it is forbidden.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Mar Zutra):</font></b> Perhaps that is only when it was 
          slaughtered with a sharp stone, which is like stoning, 
          but if it was slaughtered with a knife, it is permitted!
<br>
<br>

sjt:
<font><b>1) HOW A 'TAM' CAN BECOME A 'MU'AD'</b></font><b>
<br>QUESTIONS:</b> The Mishnah teaches that even a Shor Tam that kills a person is put to death. A Shor Mu'ad that kills a person is put to death and, in addition, the owner must pay Kofer. The Gemara asks that if a Shor Tam is put to death for killing a person, how can a Shor Tam ever become a Mu'ad? Since the Shor is put to death the first time that it kills a person, it will never be able to kill a person three times.
</p><p>
The Amora'im suggest various answers to this question. Rav Acha explains that a Shor can become a Mu'ad to kill people if the first two sets of witnesses who testify that the Shor killed are made into Edim Zomemim, and after the third testimony that it killed a person, the Mazimim of the first two sets of witnesses are proven to have been lying and the earlier sets of witnesses are vindicated.
</p><p>
The Gemara asks that this answer suffices only according to the opinion that 'Yi'udei Tora.' According to that opinion, if witnesses testify that the animal gored three times in the past, the Shor becomes a Mu'ad even though the owner found out about the first three gorings at one time. According to the opinion that 'Yi'udei Gavra,' however, the owner must be warned on three different days in order for the Shor to become a Mu'ad. He must have the opportunity to guard his Shor after each time that Beis Din warns him, for otherwise his Shor does not become a Mu'ad. In the case of the Gemara, when the Mazimim are proven to be lying Beis Din accepts the testimony about all three gorings at the same time, and thus the Shor should not become a Mu'ad according to the opinion that 'Yi'udei Gavra'!
</p><p>
The Gemara answers that the witnesses testify that the owner was present on each occasion that his Shor gored. This answer implies that even if Beis Din did not warn the owner to guard his Shor on three occasions, but the owner knew on his own to guard his Shor based on three different events which he saw for himself, it suffices to make the Shor a Mu'ad even according to the opinion of 'Yi'udei Gavra.'
</p><p>
<b>RASHI</b> here explains that when the witnesses testified about the gorings, the owner becomes obligated to pay Nezek Shalem for the third goring. The Gemara refers to a case in which the Mazimim were proven to be lying after the third goring, and the owner thus immediately pays Nezek Shalem for the third goring. Rashi here is consistent with his opinion expressed earlier (23b, DH v'Lo).
</p><p>
Tosfos and the other Rishonim argue that even those who maintain 'Yi'udei Tora' require that the owner know that the animal became a Mu'ad prior to the Negichah which obligates him to pay Nezek Shalem. They explain that only on the <i>fourth</i> Negichah does the owner pay Nezek Shalem for the damage of a Mu'ad. (See Insights to 24:1.)
</p><p>
According to Rashi, clearly the Gemara's original question -- how can a Shor Tam ever become a Mu'ad -- is valid only according to the opinion of 'Yi'udei Gavra,' because according to the opinion of 'Yi'udei Tora' it is obvious how a Shor Tam can become a Mu'ad: no one testified about the first gorings until after it had gored a third time, at which point three sets of witnesses came to testify about the three gorings. In such a case, according to the opinion of 'Yi'udei Tora' the Shor immediately becomes a Mu'ad. (<b>GILYON TOSFOS</b> cited by the Shitah Mekubetzes)
</p><p>
(a) However, if it suffices -- even according to the opinion of 'Yi'udei Gavra' -- for the owner to witness the goring on three occasions in order to make his Shor into a Mu'ad, then why does the Gemara not answer simply that three sets of witnesses came on the same day to testify about three gorings, and each set testifies that the owner himself saw the goring? Why is it necessary to present a case where the witnesses became Zomemim and later became vindicated?
</p><p>
Even according to Tosfos, it is clear from the Sugya that if the owner witnessed the gorings, even if Beis Din finds out that the Shor gored four times only on the same day (i.e. the day on which the Mazimim were proven to be lying), the Shor is put to death. If a further Negichah is required, the Gemara's question will remain: how will there ever be a case of Kofer if the animal is put to death (for its earlier gorings)? (See <b>TOSFOS RABEINU PERETZ</b>.) Why, then, is it necessary to say that the case is one of Zomemim? (See <b>SHITAH MEKUBETZES</b> in the name of <b>TOSFOS RABEINU PERETZ</b>. The Shitah Mekubetzes cites <b>GILYON TOSFOS</b> who suggests that Rav Acha indeed changed his mind and concluded that the case does not have to involve Zomemei Zomemim. However, this is not the simple meaning of the Gemara.)
</p><p>
(b) <b>RASHI</b> (DH Gabei) explains that the last set of witnesses -- the witnesses who proved the Mazimim to be liars and who vindicated the earlier sets -- was the set that testifies that the owner saw the gorings. Why does Rashi say that it was the last set that testifies that the owner saw the gorings? Why does he not explain that it was the original sets of witnesses who say that the owner saw the gorings? (<b>TORAS CHAIM</b>)
</p><p>
In fact, the <b>RE'AH</b> in the Shitah Mekubetzes explains that it was the first sets of witnesses who testified that the owner was present.
</p><p>
<b>ANSWERS:</b>
<br>(a) The Gemara does not mean to say that if the owner saw the gorings, it suffices to make the Shor a Mu'ad, according to the opinion of 'Yi'udei Gavra.' Seeing the goring is not enough to obligate the owner to guard the Shor better; the owner must be warned by Beis Din (who heard testimony that the Shor gored) to guard his Shor. However, in the case of Edim Zomemim, the owner <i>was</i> warned by Beis Din to guard his Shor (before the witnesses became Zomemim). The only reason why the owner might not be required to heed that warning is that the witnesses turned out to be Zomemim, and thus the owner can say that Beis Din was mistaken and thus he did not take their warning seriously. If, however, the owner was present when the Shor gored and he knew that the original witnesses were telling the truth (and that they really did see the goring), he has no right to disregard Beis Din's warning to him; he should have anticipated that the Mazimim would be proven false at a later time! That is why the Gemara explains that the witnesses became Zomemim, according to the opinion of 'Yi'udei Gavra.'
</p><p>
(This seems to be the intention of the answer of <b>TOSFOS RABEINU PERETZ</b>.)
</p><p>
(b) Rashi needs to explain that the final pair of witnesses testified to the owner's presence at the gorings, because the first pair's testimony with regard to the owner's presence would not have been believed. The reason for this is as follows: If they testified, before they became Zomemim, that the owner saw the goring, Beis Din will not accept that as part of their testimony because it is immaterial to the case (i.e. to the monetary obligation which is the subject of their testimony) whether or not the owner saw the goring. The only time the owner's presence is necessary is after the pair of Mazimim witnesses are proven to be liars, and Beis Din needs to know whether the owner knew all along that the original witnesses were telling the truth (and therefore the owner had to heed the warnings that Beis Din gave him after the testimony of the original witnesses). The first set of witnesses would not be believed to present such testimony since they would be biased ('Noge'a b'Davar') -- first, because they are saying that the owner saw <i>them</i> (i.e. they are testifying about something about themselves), and second, because without this latter testimony about the owner, their original testimony would not have Halachic validity. Therefore, it must have been the last set of witnesses that testified that the owner was present at the gorings.
</p><p>


<font><b>2) THE 'ISUR ACHILAH' OF A 'SHOR HA'NISKAL'</b></font><b>
<br>QUESTION:</b> The Beraisa derives from the verse, 'Lo Ye'achel Es Besaro' (Shemos 21:28) that a Shor Mu'ad becomes forbidden to be eaten (Asur b'Achilah) after Beis Din passes the verdict (Gemar Din) that it must be stoned, even before it is actually stoned (Sekilah). If the verse intended to teach that it is Asur b'Achilah only after it is stoned, it would be extraneous; <i>any</i> animal that dies without proper slaughter may not be eaten. The Gemara asks that perhaps the verse of 'Lo Ye'achel' indeed refers to <i>after</i> the animal was stoned, but it is not teaching that the animal is Asur b'Achilah but that it is Asur b'Hana'ah, since whenever the Torah says 'Lo Ye'achel' it includes an Isur Hana'ah, as Rebbi Avahu teaches. 
</p><p>
The Gemara suggests two answers to this question. If the verse intended to make the animal Asur b'Hana'ah after Sekilah, it would have said, 'Lo Yehaneh,' since it is teaching <i>only</i> an Isur Hana'ah and not an Isur Achilah. Alternatively, the verse should have said 'Lo Ye'achel' without adding the words 'Es Besaro.' It must be that the verse is teaching an Isur Achilah for eating meat that would otherwise be permitted to eat, and therefore it must be referring to the animal before the animal is stoned.
</p><p>
The second answer of the Gemara seems to reject the first answer. It seems to maintain that even if the verse teaches only an Isur Hana'ah, it is justified in saying 'Lo Ye'achel' (and not 'Lo Yehaneh'). Why, then, does <b>RASHI</b> (DH Es Besaro) write that according to the second answer of the Gemara, it is only because the verse prohibits the animal b'Achilah before Sekilah that the verse is justified in using the words 'Lo Ye'achel'? Rashi should say instead that according to the second answer, the Isur Achilah is derived from the words 'Es Besaro' and has nothing to do with the words 'Lo Ye'achel'! (<b>PNEI YEHOSHUA</b>)
</p><p>
<b>ANSWER:</b> The Beraisa which the Gemara explains uses the following wording when it proves from 'Lo Ye'achel' that the Shor is Asur b'Hana'ah before Sekilah: 'Do we not know already that a Neveilah is Asur b'Achilah? Why, then, does the Torah say 'Lo Ye'achel?'' What bothered Rashi was that this does not seem to conform with the second answer of the Gemara. According to that answer, the inference from the verse is not that the words 'Lo Ye'achel' are extraneous, but that the verse adds two extra words which imply that it refers to when one slaughters the Shor ha'Niskal before it is stoned. Therefore, Rashi found it necessary to explain that even according to the second answer the inference from the verse is from the words 'Lo Ye'achel.'
</p><p>
Rashi's intention is that the words 'Es Besaro' alone do not imply that there is an Isur Achilah and not an Isur Hana'ah. The reason for this is connected to the way an Isur Hana'ah is inferred from the words 'Lo Ye'achel.' Why is it that whenever the verse says 'Lo Ye'achel' an Isur Hana'ah is implied? After all, the verse says only an Isur Achilah. The answer is that according to Rebbi Avahu, the verse mentions Achilah only as a <i>sample</i> of the type of Hana'ah that is prohibited. It means that just as the Hana'ah of Achilah is prohibited, <i>every</i> type of Hana'ah is prohibited. Hence, the words 'Es Besaro' do not add anything more than the words 'Lo Ye'achel'; perhaps the verse merely gives Achilah ('Es Besaro') as an example of the Isur Hana'ah and its main intent is to prohibit the animal b'Hana'ah (all Hana'ah) after Sekilah. The only way to infer that the verse is indeed creating a new Isur of Achilah is from the fact that the verse offers <i>two</i> phrases which prohibit specifically Achilah -- 'Lo Ye'achel' and 'Es Besaro' (the benefit normally derived from meat is Achilah). The Gemara is saying that even if the Torah would write a single phrase of Achilah when its main intent is to create an Isur Hana'ah, it would not emphasize the Achilah a <i>second</i> time unless it indeed intended to create a new Isur Achilah (i.e. to prohibit eating something that would have been permitted to eat without the verse). (M. Kornfeld, based on the <b>PNEI YEHOSHUA</b> here and <b>HA'MIKNAH</b> to Kidushin 56a)
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The Torah does not require a knife for 
          slaughter. (There is no reason why this should be more 
          permitted than through a stone.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one slaughters with a pruning hook, 
               stone or reed, it is Kosher.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Since 'its flesh will not be eaten' forbids 
          benefit from it, what do we learn from 'the owner of the 
          ox is clean'?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> It forbids benefit from the skin;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that benefit if forbidden 
               only from the meat. The verse teaches that even the 
               skin is forbidden.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Other Tana'im (in Beraisos below) expound 
          'the owner of the ox is clean' differently. How do they 
          learn that one may not benefit from the skin?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Es Besaro' discusses what is secondary to its 
          flesh, i.e. the skin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Our Tana does not expound 'Es'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> R. Shimon ha'Amsoni used to expound 
               every 'Es' in the Torah (to include something). When 
               he came to 'you will fear Es Hash-m', he found 
               nothing to include.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> His Talmidim:</font></b> If so, perhaps also the other 
               occurrences of 'Es' should not be expounded!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> R. Shimon:</font></b> Indeed, I retract them all! Just like 
               I will receive reward for what I expounded (at the 
               time, I believed that it was true), I will be 
               rewarded for refusing to expound.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R. Akiva:</font></b> 'You will fear Es Hash-m' includes 
               Chachamim.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHY A TAM DOES NOT PAY KOFER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa #1 - R. Eliezer):</font></b> 'The owner of the ox is 
          clean' from paying half-Kofer;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection (R. Akiva):</font></b> A Tam only pays from itself. 
          Since we may not benefit from the damager, obviously it 
          does not pay Kofer!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	R. Eliezer:</font></b> I did not discuss when we stone it. Rather, 
          we know that it killed through one witness or the owner's 
          admission.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If he admitted, surely he is exempt from 
          Kofer, like anyone who admits to a fine!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Eliezer holds that Kofer is an atonement 
          (therefore, it is paid even through one witness or his 
          admission).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa #2 - R. Eliezer):</font></b> I did not discuss when we 
          stone it, rather when it killed without intent for a 
          Yisrael (but rather for an animal, Nochri or stillborn 
          baby).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Which of these two answers did R. Eliezer 
          give first?
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHICH ANSWER DID R. ELIEZER GIVE FIRST?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #1 (Rav Kahana):</font></b> He first answered that it 
          intended for an animal.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #2 (Rav Tavyumi):</font></b> He first answered that one 
          witness or the owner told us that it killed.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Kahana holds that even though the case of 
               intent for an animal is a better answer, when he 
               thought of another answer, he gave it as well.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Tavyumi holds that once he thought of the 
               better answer, he discarded the inferior answer.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DOES A TAM PAY FOR KILLING A FETUS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Yosi ha'Glili):</font></b> 'The owner of the ox is 
          clean' from paying for a miscarriage aborted (due to the 
          ox goring the mother).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	R. Akiva:</font></b> We learn from 'when men will fight', not 
          oxen!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why does R. Yosi ha'Glili disagree?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Ula brei d'Rav Idi):</font></b> R. Akiva's verse 
          does not suffice!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that it excludes only oxen 
               that resemble men, i.e. Mu'adim, but a Tam pays. 
               'The owner of the ox is clean' teaches that this is 
               not so.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> How could one think that a Mu'ad is 
          exempt and a Tam is liable?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Rather, one might have thought that 
          R. Akiva's verse excludes oxen that resemble men, i.e. 
          Mu'adim, and all the more so a Tam is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'The owner of the ox is clean' teaches that only 
               a Tam is exempt, but a Mu'ad is liable.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If so, we should say the same about 
          embarrassment!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We exclude (from paying for embarrassment) oxen 
               that resemble men, i.e. Mu'adim, all the more so a 
               Tam;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'The owner of the ox is clean' teaches that only 
               a Tam is exempt, but a Mu'ad is liable!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps R. Yosi ha'Glili holds this 
               way!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, R. Yosi ha'Glili should have 
               expounded 'the owner of the ox is clean' to exempt 
               from paying for an aborted fetus and embarrassment!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3 (Abaye and Rava):</font></b> When men fight, if the 
          woman lives, they pay (for the fetus), and if she dies, 
          they are exempt (from paying, since they are liable to 
          death);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that oxen are liable in 
               either case. 'The owner of the ox is clean' teaches 
               that oxen are always exempt.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Ada bar Ahavah):</font></b> The exemption of men 
          does not depend on a fatality, rather on intent! (Rashi - 
          men are liable even if she dies, if they did not intend 
          to kill her. Tosfos - Abaye and Rava exempt only oxen 
          like men, i.e. that did not intend for her, but obligate 
          an ox that intentionally gored her.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #4 (Rav Ada bar Ahavah):</font></b> When men fight, 
          intending for each other, even if the woman dies, they 
          pay (for the fetus). When they intend for her, they are 
          exempt (if she dies);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that oxen are liable in 
               either case. 'The owner of the ox is clean' teaches 
               that (Tam) oxen are always exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Chagai taught a Beraisa supporting Rav Ada 
               bar Ahavah.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A TAM DOES NOT PAY FOR KILLING A SLAVE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Akiva):</font></b> 'The owner of the ox is clean' 
          from the 30 Shekalim for killing a slave.
<br>
<br>

sjt:
<font><b>1) TWO ANSWERS FOR WHY A VERSE IS NEEDED TO EXEMPT A 'SHOR TAM' FROM 'CHATZI KOFER'</b></font><b>
<br>QUESTION:</b> Rebbi Eliezer gives two explanations for why a verse is necessary to teach that the owner of a Tam that killed a person is exempt from paying Chatzi Kofer. If the animal is Chayav Misah, obviously the owner is exempt from Kofer because Kofer of a Tam must be paid 'mi'Gufo,' and after the Gemar Din the animal is worthless. Rebbi Eliezer explains that the verse is necessary for when the goring of the Shor Tam is witnessed by only a single witness, or when there were no witnesses but the owner admits that it gored and killed a person. The Gemara points out that this is a weak answer since, according to the opinion that Chatzi Nezek is a Kenas, the owner would be exempt from paying Chatzi Kofer because he was Modeh b'Kenas, he admit to a Kenas, and one who admits to a Kenas is exempt from paying it. The Gemara explains that Rebbi Eliezer must maintain that Kofer is a Kaparah, an atonement for the owner, and therefore the owner is not exempt from Kofer as a result of his admission, even if the Shor is only a Tam.
</p><p>
Rebbi Eliezer suggests further than the verse is necessary in a case where the animal intended to kill another animal and ended up killing a person. In such a case the animal is not Chayav Misah and therefore it would be possible for the owner to pay Chatzi Kofer. 
</p><p>
The Gemara cites two Amora'im who argue about the sequence of Rebbi Eliezer's answers. Both Amora'im agree that the first answer mentioned above is a weaker answer. Rav Tavyumi says that Rebbi Eliezer first said the weaker answer, and then when he thought of a better answer he taught that answer. Rav Kahana argues and says that Rebbi Eliezer first said the better answer, and then he added the weaker answer as additional support to his words.
</p><p>
Why should Amora'im argue about such a seemingly insignificant point? What relevance is there to the sequence in which Rebbi Eliezer suggested his two valid answers?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>BA'AL HA'ME'OR</b> explains why Rebbi Eliezer would have ignored the better answer and suggested the weaker answer first. He merely wanted to test Rebbi Akiva to see if he would reject the weaker answer by himself. This demonstrates that Rebbi Akiva was a pupil of Rebbi Eliezer and of lesser stature, such that Rebbi Eliezer would find it necessary to test him. 
</p><p>
Rav Kahana, who says that Rebbi Eliezer presented the better answer first, maintains that Rebbi Akiva was more like a 'Talmid Chaver,' a colleague, to Rebbi Eliezer, and therefore Rebbi Eliezer would not have tested him. Rather, Rebbi Eliezer added the second answer as an additional possibility, albeit a weaker one, to answer his question.
</p><p>
It is still not clear what, if any, practical difference exists between the opinions of Rav Tavyumi and Rav Kahana. What difference does it make whether Rebbi Eliezer was greater than Rebbi Akiva or whether they were of equal stature?
</p><p>
The answer might be as follows. The Gemara in Kesuvos (84b) teaches that although the Halachah follows the view of Rebbi Akiva when he argues with another contemporary Tana, the Halachah does <i>not</i> follow his view when he argues with his rebbi, such as Rebbi Tarfon.
</p><p>
Whom does the Halachah follow when Rebbi Akiva argues with Rebbi Eliezer? This is the subject of the dispute between Rav Tavyumi and Rav Kahana. According to Rav Tavyumi, the Halachah follows the view of Rebbi Eliezer, since Rebbi Akiva was a student of his. According to Rav Kahana, the Halachah may follow Rebbi Akiva, because he was a Talmid Chaver of Rebbi Eliezer. (See Bava Metzia 59b and the incident of 'Tanuro Shel Achna'i.')
</p><p>
(b) The <b>RAMBAN</b> (in Milchamos) explains that the Gemara implies that according to Rav Tavyumi, Rebbi Eliezer <i>changed his mind</i> about the weaker answer and rejected it as a possible answer. According to Rav Kahana, on the other hand, the weaker answer remains a valid answer. The reason why Rebbi Eliezer changed his mind about the weaker answer, according to Rav Tavyumi, is that although the Shor is not killed unless two witnesses testify since -- even when one witness testifies -- the Shor is worthy of being killed had two witnesses been there, it is obvious that the owner of the Shor Tam should be exempt from Kofer (because it is similar to a Shor ha'Niskal and cannot pay 'mi'Gufo,' according to the testimony of the single witness or of the owner). (This is why Rebbi Eliezer changed his mind according to the Ramban. Alternatively, Rebbi Eliezer changed his mind because Kofer is Mamon and not Kaparah. Therefore, the owner of a Shor Tam would be exempt from paying if he would be incriminated only by his own word or by the word of a single witness, because of Modeh b'Kenas. Accordingly, there is a clear practical difference between Rav Tavyumi and Rav Kahana: a case where a Shor <i>Mu'ad</i> kills a person, but the killing is known only from the owner's testimony or from the testimony of a single witness.)
</p><p>
(See also <b>PNEI YEHOSHUA</b> who suggests a different approach.)
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> R. Akiva should challenge himself like he 
          challenged R. Eliezer (41b 3:a:1)! A Tam pays only from 
          itself. Since we may not benefit from the damager, 
          obviously it does not pay 30 Shekalim!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (R. Shmuel bar Rav Yitzchak):</font></b> The case is, 
          the owner slaughtered it first.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that the 30 Shekalim are 
               paid from it. R. Akiva teaches that this is not so. 
               Since it should be killed, even if it was 
               slaughtered, we do not collect from it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why did R. Akiva ask against R. 
          Eliezer? There also, one might have thought that if it 
          was slaughtered, we collect from it!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Akiva wanted to see if R. Eliezer had a 
          better answer.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't R. Eliezer give this answer?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> When the ox killed without intent, it is not 
          killed at all. One might have thought it pays Kofer. R. 
          Eliezer teaches that this is not so.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, the ox should be killed. No verse is needed 
               to exempt from Kofer, even if it was slaughtered.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection (and retraction of Answer #1:</font></b> Surely, R. 
          Akiva agrees to this!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Rav Asi):</font></b> Since R. Akiva holds that a Tam 
          that gores a man pays full damage (less what the man 
          damaged it), one might have thought it pays 30 Shekalim 
          of a slave from the Aliyah, like a Mu'ad. 'The owner of 
          the ox is clean' teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection (R. Zeira - Beraisa - R. Akiva):</font></b> 'Like this 
          law will be done to it' - a Tam pays only from its own 
          value, not from the Aliyah!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #3 (Rava):</font></b> We need a verse to teach that a Tam 
          does not pay for a slave, because the Torah was more 
          stringent about a slave than about a free man (and pays 
          from the Aliyah);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Kofer is only the person's value, but one pays 30 
               Shekalim even for a slave worth one Sela!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Support (Beraisa - R. Akiva):</font></b> 'The owner of the ox is 
          clean' from paying for a slave.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> A Kal va'Chomer teaches this! One pays 
               the full value of a free man, yet this is only for a 
               Mu'ad. A Tam is exempt. One never pays more than 30 
               for a slave, all the more so a Tam is exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The Torah was more stringent about a 
               slave! For a free man, one pays only his value. One 
               pays 30 Shekalim even for a slave worth one Sela! 
               Therefore, the verse is needed.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHO INHERITS PAYMENTS DUE TO A WOMAN?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Akiva) Question:</font></b> 'Why must it say 'and it 
          killed a man or woman'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'If an ox will gore a man or woman' already 
               obligates for a woman like a man!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, it equates a woman to a man: just like 
          damage payments due to a man go to his heirs, also 
          payments due to a woman go to her heirs.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Does R. Akiva hold that a man doesn't inherit 
          his wife?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Akiva):</font></b> 'He will inherit her' 
               teaches that a man inherits his wife.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Reish Lakish):</font></b> Since Kofer is not paid in her 
          lifetime, only after death, it is only Ra'uy (apt to 
          come). A husband inherits only what was Muchzak (in her 
          possession), not what was Ra'uy.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why is Kofer only paid only after death? (It 
          should be paid once we anticipate that the victim will 
          die!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> 'And it killed a man or woman, the ox will be 
          stoned (...Kofer will be placed)' - Kofer is only after 
          stoning, which is after the victim dies.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> R. Akiva says aid so (that he does not 
          inherit them) even about damages (that are paid in her 
          lifetime)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a man hit a woman, making her 
               miscarry, he pays Nezek and pain to her, and 
               compensation for the fetus to her husband;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If there is no husband (he died), his heirs 
               receive his share. If she died, her heirs receive 
               her share (of payments for Nezek and pain. Her 
               husband does not inherit it!).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If she was a freed slave or a convert (and also 
               her husband, and they died without who has no 
               heirs), the damager is exempt and need not pay her 
               share.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHO INHERITS PAYMENTS DUE TO A WOMAN? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer (Rabah and Rav Nachman):</font></b> That Beraisa discusses 
          a divorcee.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If she is a divorcee, she should share the 
          payment for the fetus!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> The Torah said that the father gets 
          it, even if she was never married to him.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> It says 'like Ba'al ha'Ishah will place upon 
          him ' (we expound this as if it said Bo'el, the one who 
          had Bi'ah with her.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why did Rabah and Rav Nachman establish the 
          Beraisa to discuss a divorcee? Each of them could have 
          explained it even if she was not divorced!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> A firstborn gets an extra share in land 
               given to pay a loan that was owed to his father, but 
               not if it was paid in money. (It is as if the land 
               was Muchzak to be his father's, for he had a lien on 
               it. The money was only Ra'uy. Likewise, a husband 
               would not receive money paid for Kofer for his wife, 
               for it is only Ra'uy.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> A firstborn gets an extra share in 
               money given to pay a loan that was owed to his 
               father, but not if it was paid in land. (When he 
               gets back money, like he lent, it is as if it was 
               Muchzak to be his father's. Land was only Ra'uy to 
               come. Likewise, a husband would not receive land 
               paid for Kofer for his wife, for it is only Ra'uy.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> These teachings are like Chachamim of Eretz 
          Yisrael, according to Chachamim. Above (a) they explain 
          like Rebbi (who says that a firstborn gets an extra share 
          of a loan, whether it was paid in land or money).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>PAYING THE VALUE OF THE VICTIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> One does not pay if his ox killed a 
          slave unintentionally - 'he will give 30 Shekalim, and 
          the ox will be stoned.' The owner pays only when the ox 
          is stoned.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rabah):</font></b> One does not pay if his ox killed a free man 
          unintentionally - 'the ox will be stoned, and also the 
          owner will die. If Kofer will be put upon him... ' - the 
          owner pays only when the ox is stoned.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Abaye - Mishnah):</font></b> If a man said 'my ox killed 
          Ploni or Ploni's ox', he pays due to his own admission.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He pays Kofer (even though his ox is 
               not stoned due to his admission)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he pays (like) money (normal damages), not 
          Kofer.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Reisha):</font></b> If he said 'my ox killed Ploni's 
          slave', he does not pay due to his own admission!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why shouldn't he pay as money?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rabah:</font></b> I could tell you that the Reisha discusses 
               paying money, and the Seifa discusses the fine, but 
               that it is a poor answer.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> Both discuss money;
<br>
<br>

sjt:
<font><b>1) A 'GERUSHAH' WHO WAS HIT AND LOST HER 'VLAD'</b></font><b>
<br>QUESTIONS:</b> Rebbi Akiva teaches that a husband inherits his wife's property mid'Oraisa. The Gemara questions this from a Beraisa which teaches that when a pregnant woman is hit and the fetus is lost, the money of the 'Demei Vlados' is given to the husband, and the Nezek and Tza'ar that the woman suffered is paid to her. If the husband dies, the Demei Vlados is given to his heirs. If the woman dies, the Nezek and Tza'ar is given to her heirs and not to her husband. If a husband inherits his wife, why should the husband not receive his wife's Nezek and Tza'ar?
</p><p>
The Gemara answers that the Beraisa refers to a situation in which the woman who was hit was a divorcee (Gerushah). Therefore, her former husband does not inherit her property if she dies.
</p><p>
<b>RASHI</b> explains that the woman was divorced <i>after</i> she was hit.
</p><p>
(a) Why does Rashi explain that the woman was divorced after she was hit? He should explain that even before she was hit she was divorced, and that is why her husband does not inherit her Nezek and Tza'ar. What difference does it make if she was divorced before or after the time that she was hit? (<b>SHITAH MEKUBETZES</b>)
</p><p>
(b) If the Beraisa is discussing a woman who was divorced after she was hit, the next words in the Gemara are difficult to understand. The Gemara asks that if she was divorced, why does she receive only Nezek and Tza'ar, and not also a share of the Demei Vlados? If the Gemara means to suggest that when the woman is divorced after the beating she still deserves a share in the Demei Vlados, why does it ask its question on the case that the Gemara establishes that the Beraisa is discussing -- the case of a woman who was divorced? It should ask its question on the Beraisa itself: Why does the Beraisa say that when the husband dies, his heirs inherit the Demei Vlados? If the husband died, even after the beating, before the Demei Vlados was paid, his wife was single at that point and no longer in her husband's domain; she has the exact same status as a woman who was divorced after she was hit! Since the Gemara assumes that a woman who was divorced after she was hit deserves a portion of the Demei Vlados, a woman whose husband died after she was hit also deserves a portion of the Demei Vlados! Why should it go entirely to the husband's heirs? (<b>REBBI AKIVA EIGER</b> in <b>GILYON HA'SHAS</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASH</b> cited by the Shitah Mekubetzes answers that Rashi had to say that the woman was divorced <i>after</i> she was hit because if she was already divorced at the time that she was hit, the Beraisa would not need to teach that she alone receives the Nezek and Tza'ar. In such a case it is obvious that she receives it and that her heirs inherit it if she dies. It must be that she was divorced <i>after</i> she was hit, and that is why one might have thought that the husband would have a claim to the Nezek and Tza'ar. 
</p><p>
The Rash continues and says that Rashi may have found support for this interpretation of the Beraisa from the wording of the Gemara's next question. The Gemara asks that if the woman is a Gerushah, she should <i>split</i> the Demei Vlados with her former husband. The Gemara assumes at this point that the Demei Vlados are awarded to the husband <i>not</i> because he fathered the Vlados but because of the rights he has over his wife. Why, then, does the Gemara ask that the wife should <i>split</i> the Demei Vlados with the former husband if she is a divorcee? If she was divorced before she was hit, she should receive <i>all</i> of the Demei Vlados! What right should her husband have to any of it? (See Shitah Mekubetzes in the name of the <b>RASHBA</b> and others who explains that the Gemara does not use the word 'Tiflog' ('split') in its normal sense, but rather it means 'Tishkol' ('take'). Some Rishonim even change the Girsa here to 'Tishkol.' See also <b>TOSFOS HA'ROSH</b>, cited by the Shitah Mekubetzes, who is bothered by this question.)
</p><p>
The Gemara must have understood that the Beraisa may be discussing a woman who was divorced after the damage was done, and that is why the husband would have some right to receive the money. Had she remained married until the money was paid, the husband would have received all of the Demei Vlados. Since he divorced her before the money was paid, he and she should split the Demei Vlados since they both have some entitlement to it.
</p><p>
(b) When the Mishnah says that the husband's heirs receive the Demei Vlados when he dies, it may refer to when the husband dies after the Gemar Din. Since he was alive at the time of the Gemar Din, he receives the full share of the Demei Vlados. The Gerushah to whom the Beraisa refers, however, was divorced <i>before</i> the Gemar Din. Therefore, the verdict should have given equal rights in the Demei Vlados to the man and the woman, since they were divorced at the time the ruling was issued.
</p><p>
Rebbi Akiva Eiger does not accept this answer, probably because if it is correct, the Gemara should answer that the Beraisa refers to a woman who was divorced <i>after</i> the Gemar Din, and that is why the husband receives the full share of the Demei Vlados. Why does the Gemara not give this answer?
</p><p>
In defense of Rashi, one may suggest that perhaps the Gemara indeed could have given this answer, but the Gemara instead understands that it is not necessary to suggest such an answer, since the Torah gives the Demei Vlados to the <i>father</i> of the children and not to the <i>husband</i> of the woman.
</p><p>
Moreover, if the Gerushah's entitlement to the Demei Vlados would have varied depending on <i>when</i> she was divorced, the Beraisa should have been more specific and not have made a blanket statement that the woman's (Gerushah's) heirs always receive the Nezek and Tza'ar. In the first part of the Beraisa, however, the Beraisa does not have to specify that the husband died after the Gemar Din, since it is obvious that he did <i>not</i> die <i>before</i> the Gemar Din, for had he died before the Gemar Din it would not be possible to state, 'While he is alive, he receives the Demei Vlados' -- he does not receive anything before the Gemar Din! (M. Kornfeld)
</p><p>
(See also <b>RASHASH</b>, who discusses Rebbi Akiva Eiger's question at length.)
</p><p>


<font><b>2) THE DIFFERENCE BETWEEN 'KOFER' AND 'DAMIM'</b></font><b>
<br>QUESTION:</b> The Gemara says that according to Rabah -- who teaches that when a Shor kills without intent to kill, the owner is exempt from paying Kofer -- the owner must nevertheless pay the heirs of the victim a monetary reimbursement ('Damim') equal to the value of the deceased.
</p><p>
The Gemara (40a) teaches that Tana'im argue about whether the value of Kofer is equal to the value of the Mazik (the owner of the Shor) or to the value of the Nizak (the person who was killed). According to the opinion that Kofer is equivalent to the value of the Nizak, what difference does it make whether the owner of the Shor pays Kofer or pays compensation for the Nizak? In either case, he pays the same sum of money!
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Mai) explains that Kofer is a more lenient payment. Since Kofer is intended to achieve atonement for the owner of the Shor that killed, it is comparable to a Korban which atones for the person who did a sin. Just as a Korban which provides atonement (such as a Chatas) cannot be offered after a person dies (because 'Ein Kaparah l'Mesim' -- no atonement can be provided for a person who is already dead), if the owner of the Shor dies, he (his heirs) will not have to pay Kofer. However, he <i>will</i> have to pay compensation (Damim) if the Shor killed without intent to kill.
</p><p>
According to Tosfos, it is not clear why the Torah exempts the owner from paying compensation when he pays Kofer. He (his heirs) should have to pay after his death in order to compensate the Nizak even though it is too late to provide atonement!
</p><p>
Perhaps Tosfos understands that since Kofer is a Kaparah, atonement, it is comparable to a physical punishment, such as Misah or Galus, which also serves to provide Kaparah. Just as the rule of 'Kam Lei bid'Rabah Minei' teaches that a person does not have to pay for an act for which he receives a corporal punishment, the obligation of Kofer exempts him from having to pay compensation. (Although Tosfos to 4a, DH k'Re'i, and 26a, DH v'Yehei, rules that 'Kam Lei' does <i>not</i> exempt a person from a payment that is related to the sin that caused the punishment, Tosfos agrees that according to most Tana'im one does not pay monetary compensation for killing a person b'Mezid. See Sanhedrin 79a.)
</p><p>
(b) <b>RASHI</b> here explains the difference between Kofer and Damim as follows. Since Kofer is a Kaparah, when there is a Chiyuv Kofer one must pay Kofer in order to receive atonement. If he has no money and cannot pay Kofer, he will be punished at the hands of Shamayim.
</p><p>
It is not clear what the practical difference is since, if a person is penniless, there is nothing he can do about it, even if he has to pay Kofer.
</p><p>
The <b>SHITAH MEKUBETZES</b> explains that the practical difference is that he is required to go begging until he has money to pay Kofer and receive atonement. 
</p><p>
Another practical difference might be, as the <b>RA'AVAD</b> writes, that when a person owes money, Beis Din normally does not force him to sell his basic necessities, whereas in order to pay Kofer perhaps he would be obligated to sell them in order to gain atonement. 
</p><p>
Another practical difference according to Rashi would be in a case where a person is uncertain about whether or not he has an obligation to pay. If the payment is simply monetary (Damim), he will not have to pay out of doubt because of the rule, 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' However, if the payment is Kofer, he will have to pay out of doubt in order to gain atonement in case he indeed was liable (as the <b>NIMUKEI YOSEF</b> writes). 
</p><p>
(c) <b>TOSFOS</b> suggests another answer. If the obligation is one of Kofer, the heirs of the Nizak cannot pardon the liable party from paying, since the Mazik is obligated to pay in order to gain atonement for himself. (See Tosfos to Kesuvos 29a, DH v'Al Eshes Achiv, in the name of the Yerushalmi, and Tosfos to Kesuvos 30b, DH Zar, citing Terumos 6:1.)
</p><p>
What does Tosfos mean when he writes that the heirs of the Nizak cannot forego the Kofer? Who will force them to take the money if they are not interested in receiving it? (If the Mazik pays them against their will, it will be a 'payment against one's will' -- see Insights to Gitin 75a, and see <b>MAHARAM SHIF</b> here.) Perhaps Tosfos means that if the heirs pardon the debt and then they change their mind, the Mazik will have to pay Kofer since their Mechilah does not take effect. If the heirs refuse to take the Kofer, the Mazik will have to beg them to take it in order for him to receive atonement.
</p><p>
(d) The <b>RA'AVAD</b> and <b>RE'AH</b> write that the opinion that maintains that Kofer is the value of the Nizak does not mean that one pays the value of the Nizak had he been an Eved. Rather, since Kofer is an atonement, one pays the value that the Torah attributes to the Nizak, which is taken from the value of Erchin (as described in Parshas Bechukosai). However, if a person pays Damim, he pays the value of the Nizak as an Eved. Hence, there is a significant difference between the payment of Kofer and the payment of Damim.
</p><p>
However, the <b>RASHBA</b> rejects this explanation based on the Gemara (42b) that says that one pays 'the full value.' 
</p><p>
(e) The <b>BA'AL HA'ME'OR</b> explains that the Gemara does not mean that according to Rabah one pays Damim if the Shor kills a person. Rather, when the Beraisa says that one pays when the Shor intended to kill one person but killed another, it does not mean that the Shor actually killed the second person but that he put the second person on the verge of death. Since the Shor did not kill the person, there is a monetary obligation for the damages, like in any case of a Shor that damages a person, and these are the damages to which the Gemara here refers.
</p><p>
This explanation creates a serious problem with understanding the Beraisa, because the Gemara concludes that the Beraisa differentiates between when the Shor kills a free man and when he kills an Eved. One is obligated to pay Damim when his Shor kills a free man, but he is not obligated to pay Damim when his Shor kills an Eved. According to the Ba'al ha'Me'or who says that killing means bringing the person to the verge of death, why should there be no obligation to pay for damages done to an Eved? Since the Eved did not die, the obligation of 'Sheloshim Shekalim' does not apply, and thus one should pay for damages as usual. See the <b>ME'IRI</b> who deals with this question at length.
</p><p>
For this reason (and others), the <b>RAMBAN</b> (in Milchamos) rejects the Ba'al ha'Me'or's explanation. He asks that the Gemara later says that a Bor which causes the same damage as the Shor of the Beraisa does not have to pay. Why should the owner of the Bor be exempt if the Bor did not kill the person? He should be liable to pay like in every case of damages. 
</p><p>
(Perhaps the Ba'al ha'Me'or was not bothered by this question because he learned like Rashi on 4b, DH Tana Adam. As explained in the Insights there, Rashi maintains that when a Bor is deep enough to kill a person, the owner of the Bor is exempt not only from liability for the person's death, but he is also exempt from damages done to a person who falls but does not die.)
</p><p>
All of these distinctions between Kofer and Damim (except for that of the Ra'avad) apply even if Kofer is considered Mamon, a monetary payment and not Kaparah. The opinion that Kofer is Mamon does not mean that Kofer does not provide atonement, because the Torah states clearly that Kofer provides atonement ('Pidyon Nafsho,' Shemos 21:30). Rather, it means that the atonement is acquired through paying the compensation of Damim to the heirs of the Nizak. Hence, if the compensation of Damim is not given, the person does not receive atonement, and as a result he has the added obligation of Kaparah requiring him to pay (as well as the obligation of compensation). 
</p><p>
According to the answer of the Ra'avad, the Gemara must follow the view that Kofer is a Kaparah, and that is why the payment is determined by the Parshah of Erchin.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding a free man, he (sometimes) pays Kofer 
               through his own admission (this will be explained) 
               so when there are no witnesses, he pays money;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding a slave, he (never) pays a fine through 
               his own admission (like we will explain), so when 
               there are no witnesses, he does not pay money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  One pays Kofer through his own admission, for 
                    example, if witnesses testify to the goring, 
                    but they did not know if the ox was Mu'ad, and 
                    the owner says that it was Mu'ad.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  One does not pay the fine for a slave 
                    through his own admission, (even) if witnesses 
                    testify to the goring, but they did not know if 
                    the ox was Mu'ad, and the owner says that it 
                    was Mu'ad.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Shmuel bar Rav Yitzchak - Beraisa):</font></b> 
          Anything liable for (killing) a free man is liable for a 
          slave. This applies to Kofer, and killing the ox.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Kofer does not apply to slaves!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it refers to money (their value).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Shmuel bar Rav Yitzchak or Rabah):</font></b> The 
          Beraisa means that any case that pays Kofer for a free 
          man, i.e. with intent according to witnesses, pays the 
          fine for a slave;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Cases that pay money for a free man, e.g. without 
               intent according to witnesses, pay money for a 
               slave.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If so, one should pay money when one 
          killed through fire b'Shogeg according to witnesses!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How does Rava know that one does not?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion (Mishnah):</font></b> If Reuven lit a stack of 
                    grain and there was a goat tied to it and a 
                    slave nearby, and they were burned, Reuven is 
                    liable. If there was a slave tied to it and a 
                    goat nearby, and they were burned, Reuven is 
                    exempt (even if he is not Chayav Misah for 
                    killing the slave).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> Reish Lakish said, the case is 
                    that he directly burned the slave. He is exempt 
                    because he is liable to death!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1 (Beraisa):</font></b> Stringencies of a fire over 
               a pit... fire is liable even for things unfitting 
               for it to consume.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It does not say that a fire pays money without 
                    intent, but a pit does not.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> Perhaps the Tana omitted some 
               stringencies.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2:</font></b> Rava himself did not know whether one 
               pays money for fire without intent according to 
               witnesses;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Do we say that an ox pays Kofer with intent, so 
                    it pays money without intent, but fire does not 
                    pay Kofer with intent, so it does not pay money 
                    without intent?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Or, do we say that just like an ox pays 
                    money without intent, also fire, even though an 
                    ox pays Kofer with intent and fire does not?
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	This question is unresolved.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>FINE AND KOFER FOR KILLING WITHOUT INTENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Dimi, citing R. Yochanan):</font></b> 'If Kofer will be set 
          on him' includes Kofer without intent like with intent.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If so, you should also learn from 'if 
          a slave' that one pays the fine for a slave without 
          intent as with intent!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps that is the law!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Reish Lakish taught that an ox that 
               unintentionally killed a slave is exempt from 30 
               Shekalim.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> (That is the law.) Rav Dimi argues with Reish 
          Lakish.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Ravin, citing R. Yochanan):</font></b> 'If a slave' teaches that 
          one pays the fine for a slave without intent as with 
          intent.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Since Reish Lakish does not expound 'if a 
          slave' like R. Yochanan, he also argues about Kofer!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, he agrees about 'if Kofer'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> 'If Kofer' is written regarding the payment. 
          'If a slave' is not.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LIABILITY FOR MINORS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> And similarly for a boy or girl.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Or if it will gore a boy or girl' - (we 
          kill the ox) for minors like for adults.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> We should be able to learn from man, 
               who is liable for minors like for adults!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  One who kills a minor is (killed) like one who 
                    kills an adult. Also, an ox that kills a minor 
                    should be (killed) like an ox that kills an 
                    adult!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Further, there is a Kal va'Chomer! A child 
                    who kills is not (killed) like an adult who 
                    kills, yet people are killed for killing 
                    children. A young ox that kills one is (killed) 
                    like a mature ox, all the more so, an ox that 
                    kills a minor is like one who kills an adult!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> No. A man who kills is more stringent, 
               for he pays four (additional) damages. We cannot 
               learn to an ox, which only pays Nezek. We need 'a 
               boy or a girl'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> This teaches about a Mu'ad. What is the 
          source for a Tam?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The Torah said that we kill the ox for 
          goring a man or woman, and for a boy or girl. Just like 
          for a man or woman, Tam is like Mu'ad, also for a boy or 
          girl.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Further, there is a Kal va'Chomer! Men and women 
               have less privileges regarding damages (when they 
               damage, they are liable), yet a Tam is killed for 
               them like a Mu'ad. Minors are privileged regarding 
               damages (they are exempt for damage). All the more 
               so a Tam is killed for them, like a Mu'ad!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Can we make such a Kal va'Chomer, to be 
               stringent?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We are stringent for killing adults, for they are 
                    commanded to keep Mitzvos. Perhaps we are 
                    lenient for killing minors, who are exempt from 
                    Mitzvos!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2:</font></b> 'If it will gore a boy, if it will gore a 
          girl' - it says 'gore' twice. The verse discusses a Mu'ad 
          and a Tam that gore, regarding death and damages.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>KILLING B'SHOGEG</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> In the following cases, an ox is exempt:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It was scratching on the wall, and it fell on a 
               man;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It intended to kill an animal, a Nochri, or a 
               Nefel (stillborn baby), and killed a (healthy) 
               Yisrael.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Shmuel):</font></b> The animal is not killed, but it 
          pays Kofer.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav):</font></b> It is exempt from both.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why does Shmuel obligate Kofer? It is Tam!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Elsewhere, Rav said 'the case is, the ox is 
          Mu'ad to fall on people in pits.' Here, we can say that 
          the ox is Mu'ad to kill people when scratching on walls.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, we kill the ox!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding the pit, we can say that it saw food, 
               and therefore fell in. Here, it intended to kill!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> No, it was scratching for its own benefit.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> How could we know this?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> After it fell, it resumed scratching.
<br>
<br>

sjt:
<font><b>1) AN OX THAT DAMAGES WITHOUT INTENT</b></font><b>
<br>QUESTION:</b> The Gemara records a dispute between Rebbi Yehudah and Rebbi Shimon with regard to whether the owner of a Shor pays for damages his Shor causes without intent ('she'Lo b'Kavanah'). Both Rebbi Yehudah and Rebbi Shimon agree that when a Shor <i>kills</i> a person without intent, the Shor is not put to death ('k'Misas Adam Kach Misas ha'Shor'), and the owner must pay Kofer, since the payment of Kofer is not related to the death of the Shor (as Shmuel rules). Rebbi Yehudah maintains that when the Shor causes damage, and not death, unintentionally, the owner is liable for damages. Rebbi Yehudah compares the payment for damage to the payment of Kofer. Rebbi Shimon maintains that when a Shor causes damage without intent, the owner is exempt. He compares the payment for damage to the Chiyuv Misah of the Shor.
</p><p>
The logic of the Gemara is easy to understand with regard to damages of Keren. However, what is the Halachah with regard to damages of Shen v'Regel? If an animal kills a person through Shen v'Regel, it is not put to death; any time an animal kills a person through Regel, such as by trampling on him or by walking through Reshus ha'Rabim, it is done inadvertently, without intent. Similarly, if an animal eats food and inadvertently bites a person and kills him, the animal is not Chayav Misah. The only time a Shor is Chayav Misah is when it intends to kill, and that, by definition, is Keren. According to Rebbi Shimon's logic with regard to Shen v'Regel, one should never be liable for damages caused by Shen v'Regel; since the Shor is never Chayav Misah in cases of Shen v'Regel, one should not be liable to pay for damages! This is particularly problematic in the case of Regel, because damages caused by an animal through Regel are always inadvertent. (<b>RISHONIM</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>BA'AL HA'ME'OR</b> explains that Rebbi Shimon indeed exempts one from paying for damages caused by Shen v'Regel. However, the damages he is discussing are Nizkei Adam, when the animal damages a person. If the animal damages other animals or objects, Rebbi Shimon certainly does not exempt the owner from payment, and he does not compare the liability for damages to the Chiyuv Misah of a Shor that kills a person.
</p><p>
This also seems to be the opinion of <b>RASHI</b> (DH veha'Nezakin), the <b>RAMBAM</b>, and the <b>ME'IRI</b>.
</p><p>
(b) The <b>RAMBAN</b> (in Milchamos) explains that Rebbi Shimon's ruling indeed applies to Shen v'Regel as well as to Keren. However, what determines whether the owner pays for damages of Shen v'Regel according to Rebbi Shimon is not whether the animal would be Chayav Misah for killing a person through Shen v'Regel, but whether the animal would be Chayav Misah for killing in such a way through Keren. This means that since, with regard to Keren, a Shor that causes damage is compared to a Shor that kills a person (in order to teach that when the Shor damages inadvertently the owner is exempt), this rule is extended to Shen v'Regel to teach that if a Shor causes damage through an entirely inadvertent act, the owner is exempt. If, however, it causes damage through an intentional act, even though the <i>damage</i> was inadvertent the owner must pay since the <i>act</i> itself was intentional. For example, if a Shor rubs itself against a wall and the wall falls down, it is considered as though it damaged inadvertently since the Shor was not trying to push down the wall. If the animal steps on a person while walking and causes damage, the owner <i>is</i> liable because the animal <i>did</i> intend to walk in that place even though it did not intend to cause damage by walking there.
</p><p>
This also seems to be the intention of <b>RABEINU TAM</b> in Tosfos (44a, DH Hacha Nami; see <b>TOSFOS RABEINU PERETZ</b>) and as cited by the <b>SHITAH MEKUBETZES</b>. (Tosfos himself seems to maintain -- due to the question posed above -- that the Shor indeed is Chayav Misah if it kills a person through Shen v'Regel.) 
</p><p>
(c) <b>RABEINU CHANANEL</b> writes that Rebbi Shimon is consistent with his opinion as expressed elsewhere. Rebbi Shimon rules that one is exempt for a 'Davar she'Ein Miskaven,' and that is why he exempts the owner of the animal in this case. Accordingly, Rabeinu Chananel will make the same distinction as the Ramban makes between damage caused by a Shor that walks where it intends to walk, and damage caused by a Shor that inadvertently walks in a different place from where it intended.
</p><p>
It is not clear how the words of Rabeinu Chananel can be reconciled with the Gemara that says that Rebbi Shimon exempts the owner from paying for damages because he compares the Chiyuv for damages to the punishment of a Shor that is put to death. Perhaps his text did not include the four words, 'v'Shor la'Afukei Kofer d'Chiyuvei,' and thus the Gemara says that Rebbi Shimon compares the Chiyuv of the Shor to the Chiyuv of its owner: just as the owner is not responsible for what he does through a 'Davar she'Eino Miskaven,' so, too, he is not responsible for the damage that his Shor does in such a manner. (See <b>EVEN HA'AZEL</b>, Hilchos Nizkei Mamon 2:10:5, 5:6; Kehilos Yakov, Taharos end of #49; <b>YAM HA'TALMUD</b>, He'oros #5.)
</p><p>
(d) The <b>TOSFOS RID</b> explains as follows. He asks, what does the Gemara mean when it says that according to Rebbi Shimon the Shor's Chiyuv for damages is derived from the Shor's Chiyuv when it kills a person? When the Shor kills a person, it certainly can be said that the Shor itself is 'Chayav,' because the Shor itself is put to death. When the Shor causes damage, however, in what way is the Shor itself obligated to pay? How can the <i>Shor</i> have any obligation? (See <b>KOVETZ BI'URIM</b>.)
</p><p>
The Tosfos Rid answers that when a Shor damages without intent, even if it is a Mu'ad it pays only Chatzi Nezek mi'Gufo, like a Tam, because it cannot be a Mu'ad to do something inadvertently. Mu'ad means that we expect it to do damage; we cannot expect something to do damage without intent. Since it pays mi'Gufo, it can be called an obligation of the Shor.
</p><p>
According to the Tosfos Rid, it is clear that for Shen v'Regel -- the obligation for which is a Chiyuv of Nezek Shalem -- there is no reason to compare the Chiyuv Nezikin of Shen v'Regel to Misah of a Shor which kills a person. However, in his footnotes to his additions to the Tosfos Rid, <b>RAV NISAN ZAKS</b> points out that the opinion of the Tosfos Rid is very difficult to reconcile with the words of the Gemara. The Gemara says that had the unintentional damages been compared to the Chiyuv of Kofer which is paid when the Shor kills unintentionally, the owner would have had to pay for the damages. According to the Tosfos Rid who says that every Shor is considered a Tam with regard to Nezek done inadvertently, the Shor should never be Chayav Kofer for killing inadvertently, since a Tam is not Chayav Kofer! 
</p><p>
Apparently, the Tosfos Rid learns that the phrase 'Im Kofer' (Shemos 21:30; 43b) is a Gezeiras ha'Kasuv which teaches that one pays Kofer when a Shor kills without intent, even though it is considered a Tam with regard to all other matters.
</p><p>


<font><b>2) 'INADVERTENT' DAMAGE CAUSED BY AN INANIMATE OBJECT</b></font><b>
<br>QUESTION:</b> The Gemara records a dispute between Rebbi Yehudah and Rebbi Shimon with regard to whether the owner of a Shor pays for damages his Shor causes without intent ('she'Lo b'Kavanah'). (See previous Insight.) Rebbi Shimon maintains that when a Shor causes damage without intent, the owner is exempt. He compares the payment for damage to the Chiyuv Misah of the Shor. Since the Shor is not put to death when it kills unintentionally, the owner does not have to pay when the Shor does damage unintentionally.
</p><p>
<b>RAV ELCHANAN WASSERMAN</b> Hy'd (Kovetz Bi'urim #27) asks that according to Rebbi Shimon, when is a person liable for damages caused by his fire (Esh) if Esh is 'Mamono'? The Gemara (23a) concludes that both Reish Lakish and Rebbi Yochanan agree that the verse which exempts the owner of the Esh from paying for damage caused to 'Tamun' implies that the Chiyuv of Esh is 'Mishum Mamono' and not 'Mishum Chitzav'; that is, it is not because of Adam ha'Mazik but rather it is like one's animal that causes damage. How can one be liable for damages caused by a fire if the fire is considered 'Mamono'? Since Esh is an inanimate object, it cannot damage with intent, and thus according to Rebbi Shimon one should not be liable for the damages that it does. It should be like a Shor that damages without intent. Conversely, if the Torah teaches that one is liable for Esh because it is considered 'Mamono' even though it damages 'unintentionally,' we should learn from there that one is <i>always</i> liable for unintentional damage caused by a person's property (even by one's Shor)!
</p><p>
Similarly, according to Rav, the Gemara (28b and elsewhere) teaches that when a person is not Mafkir an object of his and leaves it in Reshus ha'Rabim, he is liable for damages that it causes to Kelim because it is considered like Shor ha'Mazik. Why is one liable for such damage according to Rebbi Shimon? Since the object is inanimate, it should be like a Shor that damages without intent! (See Insights to 28:2:c, in the name of the <b>RA'AVAD</b>. The Ra'avad's approach might answer this question according to Rav.)
</p><p>
<b>ANSWER:</b> According to Rebbi Shimon, what is the reason for a Shor's exemption from Misah or from paying for damages when it acts without intent? Is it exempt because intent is required in order to create a Chiyuv, or is it exempt because the Shor is not acting in the way a Shor normally acts, and a Shor is Chayav Misah (or its owner is Chayav to pay for damages) only when the Shor acts in the way in which it normally acts when it causes damage or death?
</p><p>
If the second approach is correct -- that it is only the fact that the Shor did not cause damage in its normal manner that exempts its owner from payment, it is clear that for damage caused by one's Esh or by one's object left in Reshus ha'Rabim, one would be liable to pay. His Esh, or object in Reshus ha'Rabim, causes damage in the way that an Esh, or an obstacle left in Reshus ha'Rabim, normally causes damage. Since there is no change from the way that damage is normally caused, Rebbi Shimon would not exempt the owner. (See also <b>AVI EZRI</b>, Hilchos Rotze'ach 5:4.)
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> This is only pebbles (the ox made the wall 
          fall, and the wall killed)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Mari brei d'Rav Kahana):</font></b> The ox was 
          pressing on the wall the entire time it was falling.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Support (for Shmuel, and question against Rav - 
          Beraisa):</font></b> Sometimes the ox is killed and pays Kofer; 
          sometimes the ox is not killed but it pays Kofer; 
          sometimes the ox is killed but it is exempt from Kofer; 
          sometimes it is exempt from both:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Mu'ad that intended to kill is killed, and it 
               pays Kofer;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A Mu'ad that did not intend is not killed, but it 
               pays Kofer;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> A Tam that intended is killed, but it is exempt 
               from Kofer;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> A Tam that did not intend is exempt from both.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Yehudah says, if it damaged without intent, it 
               pays;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b>R. Shimon exempts.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Yehudah's reason?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> He learns from Kofer. Just like Kofer is paid 
          even without intent, also damages.
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	R. Shimon learns from stoning. Just like we kill the ox 
          only when it intended, also payment of damages.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> Why doesn't R. Yehudah learn like R. Shimon?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> He prefers to learn payments from payments, not 
          from death.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question:</font></b> Why doesn't R. Shimon learn like R. Yehudah?
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer:</font></b> He prefers to learn damages from stoning, which 
          are both liabilities of the ox, not from Kofer, which is 
          an atonement for the owner.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>KILLING AN UNINTENDED VICTIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If it intended to kill an animal, and killed 
          a Yisrael... it is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Inference):</font></b> Had it intended to kill Reuven and killed 
          Shimon, it would be liable!
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Our Mishnah is not like R. Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon):</font></b> Even if it intended to 
               kill Reuven and killed Shimon, it is exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is his reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> 'The ox will be stoned, and also its owner will 
          die' - death of the ox is like of the owner;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like a man is killed only for killing his 
               intended victim, also an ox.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is his source that a man is killed only 
          for killing his intended victim?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> 'He waited in ambush for him, and rose upon 
          him' - he must intend for his victim.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What do Chachamim learn from that verse?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (d'Vei R. Yanai):</font></b> It excludes one who throws a 
          rock into a group and kills someone.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the majority are Nochrim, even without this 
               verse we would follow the majority (and not kill 
               him, for it is as if he intended to kill a Nochri)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even if half were Nochrim, for an even doubt we 
               do not kill!
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	The case is, there are nine Yisraelim and one Nochri 
          there. Even though the majority are Yisraelim, the 
          minority is considered Kavu'a (fixed). It is like an even 
          doubt; we do not kill when in doubt.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHICH ANIMALS ARE KILLED FOR KILLING?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The following oxen are killed (for killing): 
          the ox of a woman, of orphans (without an Apotropos), of 
          (orphans with) an Apotropos, an ox of the wilderness, a 
          Hekdesh ox, and the ox of a convert who died without 
          heirs;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, we do not kill an ox of the 
          wilderness, of Hekdesh, or of a convert who died without 
          heirs, because it has no owner.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> It says 'ox' seven times in the 
          Parshah. Six are extra, to teach about six special oxen 
          that we kill: the ox of a woman, of orphans, of an 
          Apotropos, an ox of the wilderness, a Hekdesh ox, and the 
          ox of a convert who died without heirs;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yehudah says, we do not kill the last three, because 
          they have no owners.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> R. Yehudah exempts even if it had an owner, 
          and he made it Hefker or Hekdesh after it gored.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source for this?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah counts an ox of the wilderness and 
          the ox of a convert who died without heirs as separate 
          cases.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Both are Hefker!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Both were taught to teach that even if it 
               had an owner, and he made it Hefker or Hekdesh after 
               it gored, R. Yehudah exempts.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Support (Beraisa - R. Yehudah):</font></b> Even if it had an 
          owner, and he made it Hefker or Hekdesh after it gored, 
          it is exempt - 'the owner heard testimony on it, and it 
          killed (again... the ox will be stoned)' - the trial of 
          the ox must be like the goring, (i.e. when it has an 
          owner).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> We should require an owner also at the time 
          of the verdict! 'The ox will be stoned' is the verdict!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Correction:</font></b> Indeed, it should say 'the goring, the 
          trial, and the verdict must be the same' (when it has an 
          owner).
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>AN OX SENTENCED TO BE STONED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven's ox was being brought out to be 
          stoned, and he made it Hekdesh, it is not Hekdesh. If he 
          slaughtered it, the meat is forbidden.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Before a verdict was reached, if he made it Hekdesh, it 
          is Hekdesh. If he slaughtered it, the meat is permitted.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If one gave an animal to a Shomer Chinam (one who 
          guards a deposit for free), borrower, Shomer Sachar (he 
          is paid to guard it), or renter, the Shomer is like the 
          owner. A Mu'ad pays full damage, and a Tam pays half-
          damage.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>AN OX SENTENCED TO BE STONED (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> If Reuven's ox killed, before the 
          final verdict, if he sold it, it is sold. If he made it 
          Hekdesh, it is Hekdesh. If he slaughtered it, the meat is 
          permitted. If the Shomer returned it to Reuven's house, 
          it is considered returned;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	After the verdict (if these were done), it is not sold, 
          it is not Hekdesh, the meat is forbidden; and it is not 
          considered returned.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Yakov says, if the Shomer returned it, it is 
          considered returned.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Chachamim say that a Shomer cannot return 
          something deposited by him after it became Asur b'Hana'ah 
          (forbidden to benefit from it. Rather, he must pay). R. 
          Yakov says that he can return it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection (Rabah):</font></b> All agree that a Shomer can return 
          something that became Asur b'Hana'ah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rashi):</font></b> If they argued about this, 
               Chachamim would not allow returning Chametz after 
               Pesach (but we know that they do).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 (Tosfos):</font></b> If they argue about this, 
               the argument (here) should have been taught 
               regarding Chametz on Pesach (lest we think that they 
               argue about something else).)
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Rather, they argue about whether or not Beis Din can 
          sentence an ox in its absence.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say they cannot. Reuven can say, you 
               caused me to lose my ox. Had you returned it to me, 
               I would have hid it, it would not have been 
               sentenced;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yakov says, an ox can be sentenced in its 
               absence. In any case, it would have been sentenced.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> From where do Chachamim learn?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> 'The ox will be stoned, and also the owner will 
          die' - execution of an ox is like execution of the owner;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like we sentence a man only when he is 
               present, also regarding an ox.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yakov says, this applies only to a man, who 
               can make claims. It is unreasonable to learn this 
               regarding an ox!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE RESPONSIBILITY OF SHOMRIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one gave an animal to a Shomer Chinam, 
          borrower,...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Four Shomrim are in place of the owner: a 
          Shomer Chinam, a borrower, a Shomer Sachar, and a renter;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the animal is Tam and it kills, it is killed, 
               and Kofer is not paid;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the animal is Mu'ad and if it kills, it is 
               killed, and Kofer is paid;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The Shomer must compensate the owner for the loss 
               of his ox, except for a Shomer Chinam.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he guarded the ox, no Shomer should be liable!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he did not guard the ox, even a Shomer Chinam 
               should be liable!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he guarded it poorly.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is enough for a Shomer Chinam, but not for 
               other Shomrim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Who is the Tana of the Beraisa?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is R. Meir, who says that a renter 
               is like a Shomer Chinam.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rejection:</font></b> If so, also a renter should be exempt!
<br>
<br>

sjt:
<font><b>1) A 'MU'AD' GUARDED WITH 'SHEMIRAH PECHUSAH'</b></font><b>
<br>QUESTION:</b> Rebbi Yehudah teaches that if a person guards his Shor with a lesser form of Shemirah ('Shemirah Pechusah'), such as by putting it behind a gate that can withstand a Ru'ach Metzuyah (a normal, common wind) but not a Ru'ach she'Eino Metzuyah (an unusually strong, uncommon wind), and a Ru'ach she'Eino Metzuyah comes and blows down the gate and the Shor goes out and causes damage, if the Shor is a Tam the owner is liable for the damage, and if the Shor is a Mu'ad the owner is exempt.
</p><p>
This ruling seems to defy logic. Why should one have a greater obligation for damages of a Shor Tam than for damages of a Shor Mu'ad? Although Rebbi Yehudah derives this from a verse, what is the logic behind this ruling? Why does Rebbi Yehudah not find a more logical way to explain the verse?
</p><p>
Moreover, when the Gemara earlier (42a) suggests that the owner of a Shor Tam is liable for Demei Vlados while the owner of a Mu'ad is exempt, Rava challenges the suggestion and says that it is senseless, since the laws of Tam are more lenient than the laws of Mu'ad. What is the logic to explain Rebbi Yehudah's ruling?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ME'IRI</b>, cited by the Shitah Mekubetzes, explains that since people know about a Shor Mu'ad, the obligation to avoid its damage falls equally on the people that are damaged; they are responsible to stay out of its way. Since the Nizak bears some of the responsibility, the Torah exempts a Mu'ad in a case of 'Shemirah Pechusah.'
</p><p>
According to this logic, why should a Shor Mu'ad not be exempt even when the owner does not guard it all? The answer is that if the owner lets the Shor out in the first place by not guarding it, he certainly is responsible for the Shor's actions. However, if he guards it in a way that normally would prevent it from causing damage but an Ones (circumstance beyond his control) occurred, such as a Ru'ach she'Eino Metzuyah, which allowed the Shor to escape, since there is an element of Ones involved he should not be more liable to prevent it from damaging than the person who was damaged.
</p><p>
This argument does not justify why the owner of a Shor Tam should pay Demei Vlados while for a Mu'ad he is exempt, and that is why the Gemara earlier considers that to be illogical.
</p><p>
(b) According to the opinion that Chatzi Nezek is a Kenas, since the Torah obligates the owner for damages for which he does not bear full responsibility, anytime a Shor Tam damages the law should be the same, even when the owner guards the Shor with a 'Shemirah Pechusah.' The Torah can obligate a person to pay a Kenas -- a penalty -- for something for which he does not bear full responsibility. However, if he guards the Shor with a 'Shemirah Me'ulah' and the damage done is entirely beyond the control of the owner, the Torah does not impose any Kenas.
</p><p>
According to the opinion that Chatzi Nezek is Mamon, the Torah requires that the owner of a Tam pay Chatzi Nezek only because 'the Torah has mercy on the owner,' since he is not entirely at fault (since people do not expect the Shor to do damage when it is a Tam, as the Gemara says on 15a). Accordingly, perhaps in exchange for being more lenient with the owner with regard to the amount of payment, the Torah is more stringent with the owner with regard to the circumstances that can cause him to be liable. That is why he must pay even if he guards it with a 'Shemirah Pechusah.' (M. Kornfeld)
</p><p>
This argument does not suffice to obligate the owner of a Shor Tam to pay Demei Vlados, since the Chiyuv of Demei Vlados is unrelated to any lack of guarding on the part of the owner. That is, the Chiyuv is not related to teaching him to guard his Shor better. The Torah is stringent in that case only in order to ensure that the person does not treat lightly the damages of his Shor.
</p><p>
According to both of these answers, why should Rebbi Yehudah rule that one pays for the Tzad Tamus of a Mu'ad when it damages after being guarded with a 'Shemirah Pechusah,' as Rav Ada bar Ahavah rules? According to the Me'iri, the law should be lenient even with regard to the Tzad Tamus, since people know to be aware of the Shor! According to the second answer, the law also should be lenient with regard to the Tzad Tamus, since it certainly is not a Kenas (see Gilyon ha'Shas here), and -- since the law is not lenient with regard to paying Chatzi Nezek in the case of a Mu'ad -- there is no need to have a reciprocal stringency to obligate the owner in a case of 'Shemirah Pechusah'! The logical arguments presented above seem to support the opinion of Rav (beginning of 46a) who argues with Rav Ada bar Ahavah and maintains that Rebbi Yehudah exempts even the Tzad Tamus of a Mu'ad (as the <b>PNEI YEHOSHUA</b> points out).
</p><p>
Apparently, according to Rav Ada bar Ahavah, since the Torah already ruled stringently for a Tam and required the owner to pay if it damages while being guarded with a 'Shemirah Pechusah,' the Torah did not remove that Chiyuv even when the Shor became a Mu'ad. This was in order to prevent the owner from benefiting ('she'Lo Yehei Chotei Niskar') as a result of allowing his Shor to gore more frequently.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is like R. Yehudah, who says that 
               a renter is like a Shomer Sachar. 
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, all should be exempt from Kofer 
               regarding a Mu'ad (he holds that a poor guarding 
               suffices for a Mu'ad)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Huna bar Chinena):</font></b> The Beraisa is R. 
          Elazar, who says that a Mu'ad cannot be guarded, and it 
          must be killed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding a renter, he holds like R. Yehudah, 
               that he is like a Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> Really he holds like R. Meir, 
          according to Rabah bar Avuha, who switches their 
          opinions.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah bar Avuha):</font></b> R. Meir says that a renter is 
               like a Shomer Sachar, and R. Yehudah says that he is 
               like a Shomer Chinam.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> If Reuven handed his ox over to a Shomer 
          Chinam, and it damaged, the Shomer is liable. If it was 
          damaged, he is exempt.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he accepted to guard it, he should be liable 
               even if it is damaged!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he did not accept to guard it, he should be 
               exempt even if it damaged!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Really, he accepted to guard it. The 
          case is, he knew that it was a gorer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He expected to have to guard it from damaging. He 
               did not expect to have to guard it from being 
               damaged (since animals fear it)!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HOW WELL MUST ONE GUARD AN ANIMAL?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Meir):</font></b> If Reuven tied his animal by the 
          rope around its neck, or locked (a gate) in front of it 
          properly, and it escaped and damaged, he is liable, 
          whether it is Tam or Mu'ad;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, a Tam is liable, and a Mu'ad is 
          exempt. It says 'if he will not guard it', and this is 
          guarded!
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Elazar says, a Mu'ad cannot be guarded. It must be 
          killed.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is R. Meir's reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> He holds that people normally do not guard 
          their oxen. The Torah obligates a Tam to pay; this 
          mandates a minimal guarding. It says about a Mu'ad 'if he 
          will not guard it', that it must be guarded well. We 
          learn a Tam (from a Gezeirah Shavah 'Yigach-Yigach') from 
          a Mu'ad.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah holds that people normally guard their 
               oxen (minimally). The Torah obligates a Tam to pay; 
               this mandates a proper guarding. It says about a 
               Mu'ad 'if he will not guard it.' This is a second 
               verse coming to include the same thing (that it must 
               be guarded well), so it really comes to exclude. 
               I.e., a poor guarding suffices for a Mu'ad.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> We should learn a Tam from a Mu'ad, 
               through the Gezeirah Shavah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> It says about a Mu'ad 'if he will not 
               guard it' - a minimal guarding is not enough for 
               anything else.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> We need the verse to obligate one who 
               did not guard!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> It could have said only 'if he will not 
               guard.' 'It' is extra, to teach that a minimal 
               guarding suffices only for a Mu'ad.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa - R. Eliezer ben Yakov):</font></b> A minimal guarding 
          suffices for both Tam and Mu'ad.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> How does he learn?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> He learns that a minimal guarding suffices for 
          a Mu'ad, like R. Yehudah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He learns Tam from Mu'ad from the Gezeirah 
               Shavah, like R. Meir.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Ada bar Ahavah):</font></b> R. Yehudah holds that a minimal 
          guarding exempts only the additional payment of a Mu'ad. 
          It does not exempt half-damage that a Tam pays.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav):</font></b> An ox Mu'ad to gore with the right horn is not 
          Mu'ad to gore with the left horn.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> (Rav need not teach about paying half or full 
          damage. We can learn this from a Mishnah, which says that 
          Mu'ad for animals is not Mu'ad for people!) Surely, he 
          came to teach about how well it must be guarded.) Like 
          whom does Rav hold?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He cannot hold like R. Meir. R. Meir requires a 
               proper guarding for both Tam and Mu'ad!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he holds like R. Yehudah, even the right horn 
               has both a Tam and Mu'ad side (so he could have 
               taught about the levels of guarding the right horn 
               alone)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, he holds like R. Yehudah. Rav disagrees 
          with Rav Ada bar Ahavah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav holds that only in this case R. Yehudah holds 
               that a Mu'ad has a Tam side.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A MU'AD CANNOT BE GUARDED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Elazar):</font></b> A Mu'ad cannot be guarded. It 
          must be killed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rabah):</font></b> What is R. Elazar's reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> He learns from 'and he will not 
          guard it' (after becoming Mu'ad), it cannot be guarded.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If so, he should also expound 'and he 
          will not cover (a pit)' - it can no longer be covered!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps indeed, this is true!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Mishnah):</font></b> If he covered a pit properly 
               and an animal fell in and died, he is exempt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> R. Elazar holds like R. Nasan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Nasan):</font></b> 'Do not put blood in your 
               house' forbids raising a wild dog or erecting a 
               rickety ladder in one's house.
<br>
<br><b>PEREK SHOR SHE'NAGACH <b><b>ES</b></b> HA'PARAH</b>
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A DOUBT ABOUT HOW MUCH TO PAY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If an ox gored a cow, and a dead calf is 
          near the cow, and we do not know if the calf was born 
          before the goring (and died by itself), or after the 
          goring (and died due to the goring), the ox pays half-
          damage for the cow, and quarter-damage for the calf.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Similarly, if a cow gored an ox, and a calf is near the 
          cow, and we do not know if the calf was born before or 
          after the goring, we collect half-damage for the ox from 
          the cow, and quarter-damage from the calf.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Rav Yehudah):</font></b> Our Mishnah is like Sumchus, 
          who says that when in doubt, we split the money;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim argue and say, the great general rule 
               in monetary matters is ha'Motzi me'Chaveiro Alav 
               ha'Re'ayah (the one who wants to collect must bring 
               proof).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why must they say 'this is a great 
               general rule in monetary matters'?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> This includes even when the victim 
               makes a definite claim, and the damager is unsure.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2:</font></b> This teaches like Shmuel taught 
               (below).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav):</font></b> If Reuven sold an ox to Shimon, and it was found 
          to be a gorer, the sale is mistaken (and therefore void).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Reuven can say, I sold it to you to slaughter 
          (the sale is valid).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Let us see whether Shimon buys oxen for 
          plowing or for slaughter!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he buys for both.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Let us see if he paid the price of a plowing 
          ox or an ox for slaughter!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the price is the same for both.
<br>
<br>

sjt:
<font><b>1) THE 'ROV' OF THE MISHNAH</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that when an ox kills a pregnant cow and her fetus is found dead beside her, but there is a doubt whether it died before the goring or as a result of the goring, the owner of the ox must pay half of the value of the dead cow (if the ox that gored was a Tam) and a quarter of the value of the dead fetus. (Because of the uncertainty about whether his ox caused the death of the fetus, they split the liability.)
</p><p>
Rav Yehudah in the name of Shmuel teaches that this Mishnah follows the view of Sumchus who says that in a case of doubt the liability is split. The Chachamim, in contrast, rule 'ha'Motzi me'Chaveiro Alav ha'Re'ayah,' which Shmuel calls 'a major principle in monetary law,' and thus the owner of the ox pays nothing for the fetus.
</p><p>
The Gemara discusses why Shmuel needs to add that 'this is a major principle.' The Gemara offers two answers. Shmuel's intention is to teach that the Chachamim rule 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' even when the owner of the cow (the Nizak) claims with certainty that the ox killed his fetus, and the owner of the ox (the Mazik) is unsure. Even in such a case the principle of 'ha'Motzi me'Chaveiro' applies and he is exempt from paying for the fetus. Alternatively, Shmuel means to teach that the rule of 'ha'Motzi me'Chaveiro' applies even when the claimant has a Rov which supports his claim (since Rov does not apply in monetary matters). 
</p><p>
According to the second answer, why does Shmuel find it necessary to emphasize that Rov does not play a role in the dispute between Sumchus and the Chachamim? Even Sumchus may agree that Rov does not apply to monetary matters (that is, when the doubt about who owns the money arises only because of a person's claim, such as in the Gemara's case in which a person sells an ox that is known to gore), but rather the rule 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' applies (when the doubt arises only because of a person's claim), or the money is divided (when Beis Din sees a clear reason to question who owns the money). The Halachah that Rov does not apply is not pertinent to the teaching of Shmuel in the Sugya here. (See <b>SHO'EL U'MESHIV</b> 4:3:84.)
</p><p>
<b>ANSWER:</b> The Gemara in Bava Basra (93b) explains that a Rov actually is involved in the case of the Mishnah. Most animals give birth to live, healthy young and not to stillborns. Therefore, if the fetus is found dead, the Rov should determine that it was the ox that killed it. The Gemara, therefore, poses the Mishnah as a question on Rav, who says that Rov normally applies. The Gemara answers that the Rov cannot prove that the ox killed the fetus when it gored the cow, since it is possible that the cow saw the ox coming and miscarried out of fright before the fetus was born (in which case the ox was only an indirect cause of the death of the fetus, and the owner of the ox has no obligation to compensate for the death of the fetus).
</p><p>
This may be what prompts Shmuel to comment on the Mishnah that, 'Ein Holchin b'Mamon Achar ha'Rov' -- 'we do not follow Rov in monetary matters.' Shmuel, who disagrees with Rav, maintains that the Rov that most animals give birth to live young <i>would</i> apply to the case of the Mishnah, and nevertheless the Mishnah teaches that the money is divided. It is from this Mishnah that Shmuel may have inferred that 'Ein Holchin b'Mamon Achar ha'Rov,' as the Gemara in Bava Basra suggests when it cites this Mishnah as support for Shmuel.
</p><p>
This approach might explain an unclear comment in <b>RASHI</b> (DH Iy Nami). Rashi writes that the <i>Mishnah</i> teaches that Rov does not apply to cases of doubt in monetary matters. To which Mishnah does Rashi refer? The Mishnah here does not seem to relate to the Halachah of Rov in monetary law, and Shmuel -- who says 'this is a major principle' -- does not quote any Mishnah or Beraisa! (See <b>RASHASH</b> and <b>MAHARSHAL</b> who suggest that the Girsa in Rashi should be changed.) According to the above explanation, the Girsa in Rashi indeed may be correct. Rashi means that Shmuel infers from the Mishnah here that a Rov does not apply in monetary matters, since the Mishnah does not determine the Halachah based on the Rov that most animals give birth to live young.
</p><p>
(Although this Rov is not a full-fledged Rov, as is evident from the Gemara's answer (in Bava Basra) according to Rav, Tosfos and other Rishonim explain (see Insights to Bava Kama 27b) that Shmuel does rely on a full-fledged Rov to determine monetary law, and his statement was made only with regard to a weak Rov. Hence, Shmuel might maintain that the Rov that most animals give birth to live young is at least equal to the type of weak Rov to which he refers in his statement.) (M. Kornfeld)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If Reuven has nothing else to give Shimon in 
          place of the money he owes, he may give him the ox!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, Reuven has other money.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav says that the sale is mistaken. We follow the 
               majority. Most people buy oxen for plowing;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shmuel says, he can say 'I sold it to you to 
               slaughter.' We follow the majority only in Isurim;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In monetary matters, ha'Motzi me'Chaveiro Alav 
                    ha'Re'ayah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Support (for Rav Yehudah - Beraisa - Sumchus):</font></b> If an ox 
          gored a cow, and a dead calf is near the cow, and we do 
          not know if the calf was born before or after the goring. 
          The ox pays half-damage for the cow, and quarter-damage 
          for the calf;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say, ha'Motzi me'Chaveiro Alav 
               ha'Re'ayah.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rav Shmuel bar Nachmani):</font></b> Chachamim learn this 
          principal from 'whoever has a claim Yigash (will 
          approach) them (Aharon and Chur)' - we read this, Yagish 
          (he will bring (proof)) to them.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Objection (Rav Ashi):</font></b> Why must we learn from a verse? 
          Logic dictates this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, the verse teaches like Rav Nachman.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> We first listen to the one who 
               claims that he should collect (and he collects 
               before we hear the other party's claim) - 'whoever 
               has a claim Yigash to them' - Yagish (he will bring 
               his claim (first)).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Chachamim of Neharda'a):</font></b> Sometimes we listen to 
               the defendant's claim first, e.g. if his property is 
               declining in value.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A SAFEK ABOUT WHETHER THE FETUS HELPED DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Similarly, if Reuven's cow gored Shimon's 
          ox...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why does he pay half-damage (from the cow) 
          and quarter-damage (from the calf)? He owes only half-
          damage!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> When the Mishnah says half-damage, 
          it refers to half of what he must pay, i.e. quarter-
          damage. When the Mishnah says quarter-damage, it means, 
          eighth-damage.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If Reuven owns also the calf, he must pay half-damage 
          no matter when the calf was born. The case is, Levi owns 
          the calf.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #1:</font></b> If Shimon first demanded payment from 
          Reuven, Shimon can say, your cow damaged my ox. You 
          (alone) owe me half-damage, unless you can prove that the 
          calf (was already born and) was a partner in the damage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case is, Shimon first demanded payment from 
               Levi. (A Vadai partner in the damage would pay half 
               of half-damage, i.e. quarter damage. Shimon gets 
               only an eighth because we are unsure whether the 
               calf was a partner.) Now Reuven can say 'you showed 
               that you believe that there was a partner in the 
               damage, so I need pay only half the half-damage.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #2:</font></b> Even if Shimon first demanded payment from 
          Reuven, Reuven can say, I believe that there was a 
          partner in the damage. I will pay only half the half-
          damage, unless you bring proof otherwise. (end of Version 
          #2)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> The Mishnah does not say quarter-
          damage and eighth-damage. It says half-damage and 
          quarter-damage!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Really, Reuven owns also the calf. 
          The Mishnah means that if the cow is here, the full half-
          damage is collected from the cow;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the cow is not here, quarter-damage is 
               collected from the calf.
<br>

sjt:
<p>
<font><b>2) THE 'ROV' THAT OXEN ARE BOUGHT FOR PLOWING</b></font><b>
<br>QUESTIONS:</b> Rav and Shmuel disagree about whether a Rov applies to cases of doubt in monetary matters. For example, a person sells an ox to his friend and it turns out to be a Nagchan, a goring ox. The buyer claims that he intended to buy a plowing ox with which to plow his fields. He claims that since the ox is a Nagchan, the ox is worthless for plowing, and thus the sale should be a Mekach Ta'us (a transaction made in error).
</p><p>
The Gemara asks that if the buyer is the type of person who always buys oxen for plowing (such as a farmer), the transaction certainly should be a Mekach Ta'us. If he is the type who normally buys oxen for slaughtering (such as a butcher), the sale should be valid, since the fact that it is a Nagchan does not affect its quality for slaughtering. The Gemara answers that the person sometimes buys oxen for either purpose (for example, he works as both a farmer and as a butcher; see <b>RASHBAM</b> to Bava Basra 92a). 
</p><p>
The Gemara concludes that according to Rav, the transaction is a Mekach Ta'us because the Rov teaches that most people buy oxen for plowing. According to Shmuel, Rov does not apply in monetary matters and the transaction is not deemed a Mekach Ta'us. 
</p><p>
There are a number of points of difficulty in this Sugya.
</p><p>
(a) The Gemara explains that the buyer is the type of person who sometimes buys an ox for slaughtering and sometimes for plowing. If it is known that this is the nature of the specific person who purchased the animal, how can Rav claim that 'since most people purchase oxen for plowing' the ox that this person bought was most likely bought for plowing? What difference does it make what most people do if the nature of <i>this</i> person is known, and this person buys equally for either purpose? (<b>RA'AVAD</b> cited by <b>RASHBA</b> to Bava Basra 92a)
</p><p>
(b) Why indeed does the Gemara explain that the Rov which influences Rav's ruling is that most <i>people</i> buy oxen for plowing? Why does the Gemara not explain that Rav refers to a case in which a particular <i>person</i> purchases most of his oxen for plowing and sometimes for slaughtering, and Rav follows the Rov of what <i>this</i> person does most of the time? (The <b>RASHASH</b> in fact suggests that this is what the Gemara means. However, the word 'Zavnei,' which means 'they purchase,' implies that the Gemara refers to the other people in the world and not to this person. The Rashash apparently changes the Girsa to 'Zevan,' referring to this person, and he also removes the word 'd'Inshi' which refers to other people.) 
</p><p>
(c) Why does the Gemara not answer that Rav and Shmuel disagree in a case in which the seller was not familiar with the buyer and did not know whether he normally purchases for plowing or for slaughtering? (<b>ME'IRI</b>; see <b>RASHASH</b> who suggests that this indeed is what the Gemara means.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> answers that even if this person purchases oxen for both plowing and for slaughtering, since there is a doubt about what his intention was in <i>this</i> purchase the fact that most people purchase for plowing can be used to determine what his intention was. The <b>ROSH</b> (5:1) offers a similar explanation. 
</p><p>
This explanation is difficult to understand. How can the fact that other people are farmers and buy oxen for plowing have any influence on the intention of this person, who is both a farmer and a butcher? (See <b>AVNEI MILU'IM</b> 45:7.)
</p><p>
The Rashba's intention might be that since this purchaser did not specify the purpose for which he was buying the ox, and he knew that most people buy oxen for plowing, he must have assumed that the seller would sell him an ox for plowing since he knows that most people buy oxen for that purpose. Whenever a person does not specify his intentions and his intentions are in doubt, he expects the other party to assume that his intentions are like those of most other people. Therefore, it is as if he specified that he wants to buy the ox for plowing, according to Rav. According to Shmuel, a Rov is not taken into consideration in monetary matters, and therefore the buyer cannot expect the seller to take into account the Rov when selling him the ox. The buyer must specify his intentions explicitly.
</p><p>
This clearly seems to be the intention of the Rashbam in Bava Basra (92a, end of DH l'Shechitah, in his explanation of Shmuel's opinion).
</p><p>
(b) The Gemara cannot explain that the buyer mostly buys oxen for plowing and only sometimes for slaughtering, because such a Rov would certainly have no validity. The Rov to which Shmuel refers is a Rov built into the nature of the world (it is actually more like a Chazakah than a Rov). For example, most people buy oxen for plowing because they get much more use out of it by using it for that purpose, and at any given time more oxen are being used for plowing than for slaughtering. Similarly, the facts that most animals give birth to live young, or that most people call a jug a 'Kad' and a barrel a 'Chavis,' or that most women get married while they are Besulos (Bava Basra 92b), are all based on natural occurrences, logic, or universally accepted conduct. The fact that a particular person who is both a farmer and a butcher happens to use more animals for farming than for slaughtering is <i>not</i> a Rov built into the nature of the world, or even into that person's nature; at any time he can decide that he is retiring as a farmer. Therefore, what he did in the past cannot determine what his intention is during this particular purchase. (M. Kornfeld)
</p><p>
(c) Why does the Gemara not explain that the seller did not know whether the buyer was a farmer or a butcher? The <b>ME'IRI</b> suggests two answers. In his first answer, he says that it is uncommon for the seller not to recognize the buyer.
</p><p>
In his second, the Me'iri suggests that it seems that as long as most people know what the buyer's occupation is or for what purpose he purchases oxen, even if the seller happened not to know the buyer's nature, he is considered as though he did know it (since he is expected to know what is common knowledge about the buyer).
</p><p>


<font><b>3) THE LOGICAL BASIS OF 'HA'MOTZI ME'CHAVEIRO ALAV HA'RE'AYAH'</b></font><b>
<br>QUESTION:</b> Rav Shmuel bar Nachmeni derives from the verse, 'Whoever has a claim shall approach them' (Shemos 24:14), the principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' Rav Ashi challenges this source and asserts that no verse is needed to teach this principle, as it is based on simple logic. The Gemara concludes that the verse is needed to teach an entirely different Halachah.
</p><p>
Why does the Gemara reject the verse as a source for the principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' simply because the principle may be derived from logic? In the dispute between Sumchus and the Chachamim, Sumchus rules that 'Mamon ha'Mutal b'Safek Cholkin' -- the money is divided between the two disputants. Sumchus does not derive this ruling from a verse, but apparently bases it on logic. Consequently, a verse <i>is</i> needed to teach the principle of the Chachamim who argue with Sumchus and maintain 'ha'Motzi me'Chaveiro Alav ha'Re'ayah'! This is particularly true in a case in which the Nizak makes a definite claim ('Bari') and the Mazik makes an uncertain claim ('Shema'). The Gemara itself says that Shmuel considers this a novel ruling, that even in such a case 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' applies. Why, then, does Rav Ashi say that the principle is logical and needs no verse? (<b>RA'AVAD</b>, cited by Shitah Mekubetzes; <b>MAHARAM</b>)
</p><p>
(One might suggest that Rav Ashi is asking that a verse is not necessary to teach 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' according to Sumchus, because in a case in which Beis Din has reason to doubt to whom the money belongs, the money indeed is split, and in a case in which Beis Din has no reason for doubt aside from the claim of the claimant ('Derara d'Mamona'; see Bava Metzia 2b, and Rashbam to Bava Basra 92a, DH l'Shechitah), indeed it is unequivocally logical that Beis Din rules 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' (even according to Sumchus). However, the <b>URIM V'TUMIM</b> (CM 24:1) rejects this approach because it assumes that Rav Ashi and the Gemara here follow the position of Sumchus, while Tosfos (46a, DH ha'Motzi) and many Rishonim consider the opinion of the Chachamim who argue with Sumchus to be the Halachic opinion.)
</p><p>
Moreover, why does the Gemara not explain that the verse is necessary according to Shmuel to teach that 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' applies even against a Rov? (<b>MAHARAM</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RE'AH</b> (cited by the Shitah Mekubetzes) and the <b>MAHARAM</b> answer that nothing in the verse implies that 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' applies even in the case of 'Derara d'Mamona' or against a Rov. That is why the Gemara asks that when there is no 'Derara d'Mamona' and there is no Rov, it is obvious that the Halachah should be 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' 
</p><p>
(b) The <b>RE'AH</b> answers further that perhaps the Gemara considers it obvious that the Halachah does not follow Sumchus. Apparently, he means that the Gemara knew that both the Chachamim and Sumchus base their rulings on logic and not on verses. (The same can be said about Rav and Shmuel.)
</p><p>
Since the Halachah follows the view of the Chachamim, the rule of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' applies even in a case of 'Derara d'Mamona.'
</p><p>


