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Bava Kama, 64

64b

QUESTION: The Gemara suggests that the word "Chamor" in the verse (Shemos 22:3) is to be viewed as a "Perat" that comes between the two "Kelalim" of "Himatzei Timatzei," and it is in intended "to include a Davar ha'Mesuyam" in the law of Tashlumei Kefel.

This is the Girsa of our Gemara and the Girsa of Rashi. The Girsa of Tosfos, "to exclude a Davar she'Eino Mesuyam," has the same Halachic consequence, that only a "Davar ha'Mesuyam" is included in Tashlumei Kefel. However, according to Tosfos, the emphasis of the Chidush is more accurate, since we would have had no reason to *exclude* a "Davar ha'Mesuyam" such that we need a verse to include it. Rather, we would have assumed that all items are included, and the verse comes and teaches that a "Davar she'Eino Mesuyam" is *excluded*.

Tosfos (DH li'Mi'uti) cites an alternate Girsa which says that the verse is intended "to *include* a Davar *she'Eino* Mesuyam" in the law of Tashlumei Kefel. Tosfos earlier (63a, DH Davar) questions this Girsa and asks why is a verse necessary to include a "Davar she'Eino Mesuyam" in the law of Tashlumei Kefel of an ordinary Ganav? For what reason would we have thought that such an item should be excluded, that we need a verse to include it? Therefore, Tosfos concludes that the Girsa that says that a "Davar she'Eino Mesuyam" is *excluded* from the law of Tashlumei Kefel is the correct Girsa, since that indeed is a Chidush, since we otherwise would have included such an item in the law of Tashlumei Kefel.

Is there any way to explain the Gemara based on this alternate Girsa? How, too, are we to explain the Girsa of our Gemara, which emphasizes that the Chidush is that a "Davar ha'Mesuyam" is included in Kefel? Why would we have thought that such an item is not included?

ANSWERS:

(a) REBBI AKIVA EIGER (in GILYON HA'SHAS 63a) refers to the ROSH in Kidushin (1:2). The Rosh there explains that when the Gemara, according to that Girsa, says, "to include a Davar she'Eino Mesuyam," the intention is not to include such an item in the law of Tashlumei Kefel, but rather to *exclude* such an item. It is as if the Gemara is saying that such an item is *included* in the *exclusion* from Tashlumei Kefel.

This, however, does not explain the Girsa that appears in our text of the Gemara. Why does the Gemara say that the verse is including a "Davar ha'Mesuyam" in the law of Tashlumei Kefel? Why would we have thought that such an item is not included? It cannot mean to say that such an item is excluded (as the Rosh explains for the Girsa of "to include a Davar she'Eino Mesuyam"), since such an item is certainly included in the law of Kefel.

(b) The TOSFOS RABEINU PERETZ explains that our Girsa means, like Tosfos' Girsa, to specifically exclude a "Davar she'Eino Mesuyam." The reason it did not say explicitly, like Tosfos' Girsa, "to *exclude* a Davar *she'Eino* Mesuyam," seems to be because the Gemara wanted to be consistent with the previous Derashah ("to include an item that is not living") and to be consistent with the question of the Gemara, "When 'Chamor' is placed between 'Himatzei' and 'Timatzei,' what is it meant *to include*," since it is being used as a "Klal-Perat-Klal" whose purpose is to *include* items in the Halachah.

QUESTION: The Gemara says that the Peratim ("Shor," "Chamor," and "Seh") in the verse of Tashlumei Kefel (Shemos 22:3) are needed to exclude Karka, Avadim, and Shtaros from the law of Kefel.

According to this conclusion of the Gemara, how do we know that a "Davar she'Eino Mesuyam" is excluded from the law of Kefel? Earlier, the Gemara excluded it from the Perat of "Chamor," but now that the Perat of "Chamor" is being used to exclude something else, how do we know that a "Davar she'Eino Mesuyam" is excluded?

ANSWERS:

(a) The TOSFOS RABEINU PERETZ answers that once the Torah has taught that a "Davar she'Eino Mesuyam" is excluded from Kefel in the case of "To'en Ta'anas Ganav" (with the Perat of "Salmah" in Shemos 22:8; see 63a and Insights to 63:2), we now know that it is excluded in the case of an ordinary Ganav as well. That is, we can learn the exclusion of a "Davar she'Eino Mesuyam" from Kefel in the case of a Ganav from its exclusion in the case of "To'en Ta'anas Ganav."

In contrast, Karka, Avadim, and Shtaros need a special Mi'ut in both cases, that of "To'en Ta'anas Ganav" and that of an ordinary Ganav, because one case would not be able to be learned from the other. In the case of an ordinary Ganav, we would have thought that he is Chayav to pay Kefel for stealing these items, since he did an actual act of Geneivah. On the other hand, had the Torah only taught us the exclusion of these items from Kefel in the case of a Ganav, we would have thought that one who is "To'en Ta'anas Ganav" must pay Kefel for these items, because he made a Shevu'ah. Therefore, the Torah needs to teach us in both cases that these items are excluded from Kefel.

(b) The Tosfos Rabeinu Peretz answers further that once the Torah has taught that Ganav and "To'en Ta'anas Ganav" are the same with regard to the Mi'ut of Karka, Avadim, and Shtaros by writing Mi'utim in both cases, we can now learn the laws of Ganav from the laws of "To'en Ta'anas Ganav" with regard to "Davar she'Eino Mesuyam." When the Gemara attempted to exclude this item from the verse regarding Ganav, this was before we knew that we could learn Ganav from "To'en Ta'anas Ganav."