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Bava Kama, 78

1) THE EXTRA WORD "OR"

QUESTION: The Beraisa (77b) says that we derive from the word "or" ("O") in the verse, "... an ox or a sheep" (Shemos 21:37), that an animal of Kil'ayim is included in the obligation of Arba'ah v'Chamishah. The Gemara asks that in the verse regarding which animals may be brought as a Korban (Vayikra 22:27), the word "or" is used to *exclude* an animal of Kil'ayim!

The Gemara answers that the animals mentioned in the verse regarding Arba'ah v'Chamishah -- an ox and a sheep -- cannot be crossbred, and thus an animal of Kil'ayim is automatically excluded. It must be that the word "or" is coming to include a crossbreed. In contrast, the verse that discusses which animal may be brought as a Korban mentions a sheep and a goat, which can be crossbred, and thus the word "or" there must be excluding a crossbreed.

The Gemara here (78a) asks that in the verse regarding Korbanos, it also mentions an *ox* ("An ox, or a sheep, or a goat..."), which *cannot* be crossbred with a lamb or a goat, so why do we *exclude* Kil'ayim from the word "or" there?

What is the Gemara's question? Whenever it is possible to understand a verse in one of two ways -- as teaching a leniency, or as teaching a stringency -- we go l'Chumra and interpret the verse as teaching a stringency. Here, the verse is teaching either that an animal of Kil'ayim may be brought as a Korban, or that it may not be brought as a Korban. We should therefore go l'Chumra and interpret the verse as teaching that an animal of Kil'ayim may *not* be brought as a Korban! What, then, is the Gemara's question?

ANSWER: The SHITAH MEKUBETZES cites RABEINU YESHAYAH who explains the Gemara's question as follows. The Gemara is asking that if the verse is *excluding* Kil'ayim, then it should have left out all of the words "or" and written instead, "An ox, and a sheep, and a goat." The verse then would have had two opposing implications -- "an ox and a sheep" would have implied that Kil'ayim cannot be brought (since an ox and a sheep cannot be crossbred), while "a lamb and a goat" would have implied that Kil'ayim could be brought. We then would have interpreted the verse l'Chumra and excluded an animal of Kil'ayim. Now, though, that the verse inserts the additional words of "or," it must be that it intends to *include* Kil'ayim.

QUESTION: The Gemara explains that the two extra words "or" (in the verse regarding which animal may be brought as a Korban) must be coming to *exclude* two types of animals, because if we had one exclusion for Kil'ayim, we would not know that a "Nidmeh" is also excluded (since a Nidmeh is a lesser form of Kil'ayim). If, however, the two words "or" are meant to *include* two types of animals, then once we have included Kil'ayim, we do not need an additional word to include a Nidmeh.

The Gemara's explanation is not clear. Had the verse written only one extra word "or," then we would have assumed that it was coming to include a Nidmeh, while an animal of Kil'ayim is not included. Therefore, in order to *include* both Kil'ayim and Nidmeh, it is necessary to have two extra words "or!" What, then, is the Gemara's proof that the two extra words are intended to *exclude* Kil'ayim and Nidmeh?

ANSWERS:

(a) The RASHBA answers that if only there was only one Ribuy in the verse, we would have included *Kil'ayim* and not Nidmeh, even though Kil'ayim is a greater Chidush. We would have reasoned that since it *is* possible to have a Nidmeh born from an ox or a sheep (that looks like a crossbreed), and it is *not* possible to crossbreed an ox and a sheep, a crossbreed is, therefore, already excluded from being a Korban, while a Nidmeh is included. The extra word "or," therefore, must be coming to *include* Kil'ayim, for a Nidmeh would have been included even without a Ribuy. (The Rasha proves that a Nidmeh would be included without the extra word from the fact that the Gemara uses the single extra word "or" that is written with regard to Arba'ah v'Chamishah to include Kil'ayim, and not to include Nidmeh.)

(b) The SHITAH MEKUBETZES answers that it makes sense that the first "or" that appears is meant to teach that Kil'ayim is included. (It is not clear why this should be so.)

(c) The PNEI YEHOSHUA answers that we would not have been able to include Nidmeh from a single extra word "or," because we would have had no basis to *exclude* it such that we needed a Ribuy to include it. Moreover, logically, if we would have used the single word "or" to include a Nidmeh, then the verse itself would have been excluded Kil'ayim (since an ox and a sheep do not produce a crossbreed), which would have implied that *only* Kil'ayim is excluded but not a Nidmeh, and thus there would be no need for a Ribuy! Therefore, it must be that from a single word "or," we would know that Kil'ayim is included, and we would know through a Kal v'Chomer that a Nidmeh is included as well, and there would be no need for a second extra word "or." It must be, as the Gemara asserts, that the two extra words "or" are coming to *exclude* Kil'ayim and Nidmeh and not to include them.

78b

HALACHAH: The Gemara concludes that a Ganav who stole a Shor that had been sanctified to be brought as a Korban Olah may fulfill his obligation to return the stolen object by returning a *sheep* according to the Rabanan, or a *bird* according to Rebbi Elazar ben Azaryah. Since the Ganav stole a Korban Olah, he is required to return a Korban Olah, and thus it suffices for him to give any animal that can be brought as an Olah. Even though those animals are not worth as much as a Shor, the Ganav may return any animal that may be used as a Korban Olah, and the owner may not insist that the Ganav return a Shor to him so that he can fulfill the Mitzvah in the best possible way.

The Acharonim use this Gemara to resolve a similar Halachic question. If a person steals or ruins his friend's Esrog that is Mehudar, does he have to pay back an Esrog that is Mehudar, or does it suffice to pay back any Esrog that is kosher for the Mitzvah?

OPINIONS:

(a) The MAHARAM MINTZ (#114) rules that one can fulfill his obligation by returning any kosher Esrog. He proves this from our Gemara. He adds, however, that if the owner would have been able to sell the nicer Esrog after Sukos, then the Ganav must pay him back with an Esrog of equal value (or with money equal to the nicer Esrog), since he clearly caused the owner a loss.

(b) The CHACHAM TZVI (#120) argues that the case of the Esrog is not comparable to the case of our Gemara. Only when the Ganav steals a Korban Olah may he pay back with any animal that may be brought as an Olah, because the Korban has no monetary value for the owner (since it is Hekdesh). The Ganav must pay back only in order to enable the owner to fulfill his obligation to bring a Korban, and since he may fulfill his obligation by bringing a sheep, the Ganav only needs to pay back a sheep. An Esrog, on the other hand, certainly the monetary value for its owner, for he is able to sell it if he wants. Since the Ganav caused him to lose that value, he is obligated to pay it back. (See also MISHNEH L'MELECH, Hilchos Ma'aseh ha'Korbanos 16:7.)

(c) The CHASAM SOFER (Gitin 54b, DH ha'Kohanim) answers the question of the Chacham Tzvi on the ruling of the Maharam Mintz. He explains that since the owner of the Esrog bought an Esrog that was Mehudar in order to give honor to Hashem, he has obligated himself to use such an Esrog and he cannot sell it (in the words of the Chasam Sofer, "Neder Gadol Nadar l'Elokei Yisrael"). The Chasam Sofer writes that this also seems to be view the view of the RA'AVAD and RASHBA in our Sugya, and the RAMBAM (Hilchos Ma'aseh ha'Korbanos ch. 16). They explain that when the Gemara concludes that the Ganav may pay back a sheep in place of the Shor that he stole, it is teaching that even though the owner -- by sanctifying a Shor to bring as a Korban -- has made a Neder to give honor to Hashem with the nicest type of Korban, and thus we might have thought that he must bring specifically a Shor and not any other animal, nevertheless once the animal has been stolen he may fulfill his obligation with any animal that may be brought as an Olah. This implies that as long as the item of the Mitzvah still exists, he must fulfill the Mitzvah with the item that he originally intended to use.

The Chasam Sofer, however, asks a different question on the view of the Maharam Mintz. He says that the case of the Esrog is not comparable to the case of our Gemara, because our Gemara is not discussing the Ganav's obligation with regard to the actual item that he stole. The Ganav's obligation to return the stolen item in this case is because of the principle that "Davar ha'Gorem l'Mamon, k'Mamon Dami" (and the Sugya is following the view of Rebbi Shimon). Hence, since the owner can fulfill his obligation to bring a Korban Olah by bringing a sheep, the value of a sheep is the extent of the financial loss that the Ganav is causing to the owner, even though it was a Shor that the Ganav stole. In contrast, the reason why the Ganav must pay back the Esrog that he stole is not because it is a "Davar ha'Gorem l'Mamon," but because of the very fact that he took the property of someone else (since an Esrog is not Hekdesh and it belongs to its owner). Therefore, the Ganav must pay back an Esrog of equal value to the one that he stole.

(d) The OR SAME'ACH (Hilchos Geneivah 2:1) rules that even though the theft of a normal Esrog cannot be compared to the theft of a Korban Olah, nevertheless the theft of an Esrog of Ma'aser Sheni is comparable to the theft of a Korban Olah. The Halachah is that a person can fulfill the Mitzvah with an Esrog of Ma'aser Sheni, and yet it is not considered to be the property of the owner (for we rule like Rebbi Meir who says that Ma'aser Sheni is Mamon Gavoha). Since it is not considered his property, when someone steals such an Esrog, he has not stolen anything of value from the owner. However, he must give back an Esrog in order for the owner to fulfill the Mitzvah. Hence, we learn from our Sugya that he may pay back with a kosher Esrog of lesser value.