Ask A Question about the Daf

Previous daf

Bava Kama, 7

1) PAYING "MEITAV" OF THE "NIZAK" OR "MAZIK"

QUESTIONS: The Gemara (6b) cites a Beraisa in which Rebbi Yishmael states that the when the verse (Shemos 22:3) says that one whose animal damaged someone else's property must pay "Meitav Sadehu," it refers to the value of the *Nizak's* best field. Rebbi Akiva argues and says that the verse means to teach that one must pay from Idis "and Kal v'Chomer for Hekdesh." The Gemara understands that this means that one must pay with the best of the *Mazik's* field and not the Nizak's. The Gemara explains that when Rebbi Akiva says, "Kal v'Chomer for Hekdesh," he means that one must pay for damages done to Hekdesh, for he holds like Rebbi Shimon ben Menasya who rules that a Shor Tam that gores a Shor of Hekdesh must pay Nezek Shalem.

The Gemara asks how do we know that Rebbi Akiva is arguing with Rebbi Yishmael on two points? Perhaps he agrees that one must pay "Meitav Sadehu" of the *Nizak*, and he is arguing only with regard to Hekdesh -- that even one who damages Hekdesh must pay and we do not say that he is exempt because of "Shor Re'ehu" (Shemos 21:35)!

The Gemara answers that it is clear from Rebbi Akiva's words that he argues also with regard to whose "Meitav Sadehu" the Mazik must pay and holds that it is the Meitav of the Mazik. This is clear from the fact that he emphasizes that his argument revolves around what is written in the verse (and paying Meitav for damage done to Hekdesh is not written in the verse, but only learned through a Kal v'Chomer). Second, if Rebbi Akiva is only arguing about damage done to Hekdesh, then what Kal v'Chomer can he make?

RASHI explains the second inference of the Gemara as follows. If Rebbi Akiva holds that the Meitav of the verse refers to the Meitav of the Nizak, then he is being lenient with the Mazik and allowing the Mazik to pay just the Meitav of the Nizak. If we want to learn that this leniency applies to Hekdesh as well, we must find a point in Hekdesh that is more lenient than its counterpart in Hedyot, but we know that the opposite is true -- Hekdesh is more severe than Hedyot, because one must pay Nezek Shalem even when one's Shor Tam damages Hekdesh, according to Rebbi Akiva, as he learns from the word "Re'ehu."

(a) Why does Rashi assert that Rebbi Akiva is applying a *Kula* to Hekdesh with the Kal v'Chomer if he holds that one pays Meitav of the Nizak? Perhaps he is teaching a *Chumra* for Hekdesh with the Kal v'Chomer -- that one must pay Meitav for damage done to Hekdesh and not just Beinonis, through a Kal v'Chomer that even damage done to Hedyot is paid with Meitav. Where does Rebbi Akiva mention anything about a Kula of paying only Meitav of the Nizak? (TOSFOS DH v'Od)

(b) Why does Rashi write that the reason Hekdesh is more Chamur is because Rebbi Akiva holds like Rebbi Shimon ben Menasya, that one whose Shor Tam gores a Shor of Hekdesh pays Nezek Shalem? Even if one would not have to pay Nezek Shalem when his Shor Tam gores a Shor of Hekdesh, logically Hekdesh is still more Chamur than Hedyot, since one must pay a penalty of Me'ilah for using an item of Hekdesh, but not for using an item of Hedyot! For this very reason, the Gemara earlier (end of 6b) assumed that Rebbi Akiva was teaching that a Shor of Hedyot that gores a Shor of Hekdesh must pay Meitav through a Kal v'Chomer, even though we did not yet know that a Shor Tam that gores Hekdesh pays Nezek Shalem! (DEVAR MOSHE #104)

(c) Why does Rashi add at the end of his explanation the source of Rebbi Akiva's and Rebbi Shimon ben Menasya's Halachah that a Shor Tam pays Nezek Shalem to Hekdesh? Rashi already explained the opinion of Rebbi Shimon ben Menasya and his source earlier (DH Meshalem Nezek Shalem)!

Moreover, what does that source have to do with the Gemara's question here, "What is the Kal v'Chomer?" Rashi should simply write that Hekdesh is more Chamur because a Shor Tam who gores Hekdesh pays Nezek Shalem, without repeating the source! (GE'ON TZVI, IMREI BINYAMIN)

ANSWERS:

(a) The PNEI YEHOSHUA explains that according to Rashi, Rebbi Akiva -- when he uses the word "Idis" -- is alluding to the Chidush that the Tana Kama, Rebbi Yishmael, teaches in the beginning of the Beraisa. Rebbi Yishmael is not teaching that one pays Meitav (for that is explicit in the Torah). Rather, he teaches that the Meitav mentioned in the Torah is not the more severe type of Meitav, meaning the Meitav of the Mazik, but rather it is the more lenient payment, the Meitav of the Nizak. When Rebbi Akiva repeats that damages are paid from Idis, if he agrees that the Idis is the Idis of the Nizak, then he is repeating the statement of Rebbi Yishmael in order to emphasize that we only pay the lenient form of Meitav. Accordingly, his Kal v'Chomer for Hekdesh must also be teaching that this lenient ruling of Hedyot regarding Meitav applies to Hekdesh as well (not like Rebbi Yishmael, who maintains that there is no payment at all when damage is done to Hekdesh).

(b) The reason Rashi writes that the Chumra of Hekdesh is that one pays Nezek Shalem when his Shor Tam damages Hekdesh is because Rashi holds that with regard to the Kal v'Chomer in our Sugya, the only Chumra or Kula that matters is one in which one *does* pay for damage done to both Hekdesh and to Hedyot, but the payment to one is greater in quantity or quality than the payment to the other. Hence, if we find that one is exempt for damaging Hekdesh or Hedyot while for damaging the other he is Chayav, it does not prove that it should be more lenient with regard to paying a normal payment and not Meitav (when there is an obligation to pay).

Therefore, the fact that one pays Me'ilah to Hekdesh and not to Hedyot cannot prove that, when it comes to damages which are paid to both Hekdesh and Hedyot, the payment to Hekdesh should be more severe than the payment to Hedyot. Rashi needs to cite the Halachah of Rebbi Shimon ben Menasya, that although a Tam pays Chatzi Nezek to a Hedyot, he pays Nezek Shalem to Hekdesh, which shows that even when both must be paid, Hekdesh is more severe.

This is the question on the potential Kal v'Chomer which would teach that Hekdesh is *less* severe than Hedyot and that one does not pay Meitav when paying to Hekdesh.

What is Rashi's source for this? Perhaps Rashi is following the "Lishna Achrina" that he writes earlier (6b, DH Shor Re'ehu). Rashi there explains that one is exempt from paying for damages done to Hekdesh which is Mechubar (see previous Insight). If it is true that one is exempt for paying for damages for Hekdesh which is Mechubar even though one is Chayav to pay for damages done to an item of Hedyot which is Mechubar, this should present a Pircha to any Kal v'Chomer which tries to show that Hekdesh is more Chamur than Hedyot with regard to payments for damage. How, then, can Rebbi Akiva make a Kal v'Chomer to obligate one for damaging Hekdesh to pay Meitav, even according to Rebbi Shimon ben Menasya? (TOSFOS, DH v'Rebbi Akiva, asks a similar question according to the way he learns the Sugya, which conforms to Rashi's "Lishna Kama." However, the answers that he and the Rishonim suggest for that question have no bearing on the question that we are asking according to Rashi's "Lishna Achrina.")

Because of this question, Rashi was forced to learn that the fact that one is exempt from paying Hekdesh for damages done to Mechubar does not show that Hekdesh is weaker with regard to being paid Meitav when one *is* Chayav to pay Meitav. This opinion of Rashi is reflected earlier (DH v'Chi Teima). The Gemara writes that even if one pays Idis to a lender, we could not learn from a Kal v'Chomer that one would pay Idis for a debt that one owes to Hekdesh, since Hekdesh is weaker because it does not receive payment for damage done to it (when one's ox gores an ox of Hekdesh, as learned from the verse, "Shor Re'ehu").

Instead of explaining the Pircha that Hekdesh is weaker since one is exempt from paying Hekdesh while he is obligated to pay Hedyot for damages, Rashi writes that Hekdesh is weaker because one is obligated to pay Idis for damaging a Hedyot, whereas he does not pay Hekdesh at all. Why does Rashi mention the fact that one pays Idis for damage done to Hedyot? The answer is that the exemption for paying Hekdesh cannot be a Pircha on a Kal v'Chomer which is teaching a Halachah about Meitav. Rather, the Pircha is from the fact that we find fewer Halachos of paying Idis to Hekdesh (and perhaps even no Halachos) than we find with regard to paying Hedyot. Since we find fewer times where Hekdesh receives Idis, therefore when paying a debt to Hekdesh, perhaps one may pay with normal fields (Beinonis) and not with Idis.

Rashi in Gitin (49a), where he does not cite the "Lishna Achrina," is consistent with our explanation and does not mention that Hedyot is more Chamur because we pay Idis to Hedyot, nor does he mention that the Kal v'Chomer of Rebbi Shimon ben Menasya is made from the fact that one pays Nezek Shalem when one's Shor Tam damages Hekdesh.

(c) Our answer to the second question answers this question as well. Why does Rashi repeat that Rebbi Akiva learns that a Shor Tam pays Nezek Shalem to Hekdesh from "Shor Re'ehu?" Rashi was bothered by the following question: how can we rule out the possibility that Rebbi Akiva is teaching a Kula, by saying that Hekdesh is more Chamur than Hedyot since one must pay Nezek Shalem for damaging it? Since we find that the Tana'im argue whether one is Chayav to pay for damages done to Hekdesh, perhaps Rebbi Akiva compromises and rules that when one damages Hekdesh he *is* Chayav; however, he does not have to pay more to Hekdesh than he pays to Hedyot. Hence, we do not find that Hekdesh is more Chamur than Hedyot with regard to receiving a better payment, and, therefore, if Hedyot receives only the Meitav of the Nizak, then perhaps Hekdesh also should receive only the Meitav of the Nizak.

The words "Kal v'Chomer" that Rebbi Akiva uses mean that if we find that Hedyot -- which is paid Meitav for damages of Shen and Regel -- nevertheless gets paid only Meitav of the Nizak for damages done by Keren, then Hekdesh -- which is not paid Meitav for Shen and Regel (rather, one is exempt from payment, because the verse that discusses Shen and Regel is not discussing Hekdesh because Hekdesh cannot have a field for the Shen or Regel to damage) -- certainly is paid only Meitav of the Nizak for damages done by Keren.

(If the verse of Shen and Regel is not discussing Hekdesh, we cannot learn Hekdesh from Hedyot through a Binyan Av, because the fact that Hekdesh is not paid for damages done to Karka is a Pircha Kol d'Hu, which can be used to thwart a Binyan Av, even if it is not a Pircha on a Kal v'Chomer as we explained above. See Chulin 116a.)

Why, then, does the Gemara ask that Rebbi Akiva must be making his Kal v'Chomer to show that Hekdesh is more Chamur? Rashi answers that it is impossible for Rebbi Akiva to make such a compromise, saying that one pays Hekdesh the same way that he pays Hedyot. The word "Re'ehu" clearly limits to *Hedyot* the Halachos of the verse with regard to Shor. Therefore, one must either be completely exempt for damaging Hekdesh, or else one must be Chayav *more* for damaging Hekdesh. Since Rebbi Akiva holds that one *is* Chayav for damaging Hekdesh, he must also hold that one pays more for damaging Hekdesh than for damaging Hedyot. Hence, he must hold that the Kal v'Chomer proves that Hekdesh is more Chamur. (M. Kornfeld)

QUESTION: The Gemara concludes that Rebbi Akiva's Kal v'Chomer is used to show that even one who damages Hekdesh is obligated to pay for the damages, and to pay with Meitav.

If Rebbi Akiva maintains that one is Chayav for damage done by Keren to Hekdesh, like Rebbi Shimon ben Menasya rules, then why does he need a Kal v'Chomer to teach that one is Chayav for damage done to Hekdesh, or that one pays Meitav to Hekdesh? According to Rebbi Shimon ben Menasya, the verse does not distinguish between Hekdesh and Hedyot with regard to payments for damages, except in the case of a Shor Tam (which pays "mi'Gufo" and does not pay Meitav). Accordingly, the same verse that teaches that Hedyot is paid with Meitav should also teach that *Hekdesh* is paid with Meitav! Why should a Kal v'Chomer be necessary? (RASHBA, Gitin 49a)

ANSWERS:

(a) The RASHBA in Gitin and TOSFOS SHANTZ (cited by the Shitah Mekubetzes here) answer that Rebbi Akiva learns from the word "Acher" ("u'Vi'er bi'Sdeh Acher," Shemos 22:4) that the verse is only discussing Hedyot, since "Acher" means someone else similar to the Mazik (even though the Gemara makes no such Derashah here, they cite such a Derashah from Zevachim 7a). How, though, will a Kal v'Chomer teach that one *is* Chayav for damages done to Hekdesh if the verse excludes payments to Hekdesh from the word "Acher?"

The Rashba answers that the word "Acher" is not a clear Derashah, and that once there is a Kal v'Chomer, logic dictates not to expound the word "Acher" in such a way.

(b) The TOSFOS SHANTZ suggests further that Rebbi Akiva's Kal v'Chomer was necessary in order to teach that a Tam which damages Hekdesh and pays Nezek Shalem (like Rebbi Shimon ben Menasya rules) must pay with Meitav. Without the Kal v'Chomer we would have thought that one does not have to pay Meitav, since one never pays Meitav for damage done by Shor Tam, but rather one pays "mi'Gufo."

According to this answer, however, we must assume that when one pays Nezek Shalem for damage done by a Shor Tam to Hekdesh, he pays "Min ha'Aliyah" -- from Meitav -- and not just "mi'Gufo." However, the Acharonim (in Gitin 49a) point out that it seems from other Rishonim that when one's Shor Tam damages Hekdesh, one pays Nezek Shalem only "mi'Gufo," since the principle of "Dayo" ("it suffices to learn...") will stop a Kal v'Chomer from obligating a person to pay more for damage done by his Shor Tam to Hekdesh than he would have to pay when his Shor Tam damages Hedyot.

(c) According to the "Lishna Achrina" of Rashi (end of 6b), the Gemara is easily understood. The verse that obligates one to pay Meitav for damage done by Shen and Regel to Hedyot is not discussing damage done to Hekdesh (since it is discussing damage done to land, and Hekdesh does not have land, as we explained in Insights to 6b). Therefore, even though the verse does not say specifically "Re'ehu," we still would think that one is not obligated to pay for damage done to Hekdesh, had we not been able to prove, from a Kal v'Chomer, that one *is* obligated to pay Hekdesh, since Hekdesh is more Chamur than Hedyot (for when a Shor Tam damages Hekdesh, one must pay Nezek Shalem). This might be the reason why Rashi favors the "Lishna Achrina," as we explained in the previous Insight.

7b