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Bava Kama 53

BAVA KAMA 53 (Rosh Hashanah) - sponsored by Hillel Yakov and Elisheva Tzipora Kagan. May they be blessed with a year of Berachah and joy, and may Hashem answer all of their prayers!



(a) According to Rav, when our Mishnah says 'Nafal *Lefanav* mi'Kol ha'K'riyah Chayav, *le'Acharav*, Patur', it must be taken literally. What he means is - that 'Lefanav' and 'Le'acharav' refer to the animal, which fell forwards into the pit and suffocated, or backwards into it, and broke its back. In the latter case, the owner of the pit is Patur, because it was the Chavatah (the ground belonging to the public) that killed the animal.

(b) According to Shmuel, if 'Lefanav and 'Le'acharav referred to the animal (both inside the pit), the owner would be liable both ways (because he holds 'le'Havlo, ve'Kol-she'Kein la'Chavto').

(c) He therefore interprets 'Lefanav' and 'Le'acharav' to mean - in front of the pit (i.e. into it) and behind it (outside it) respectively. He is Patur in the latter case, because when he tripped on the lip of the pit and fell on the ground above the pit, the pit was only a G'rama, and the damage that was done was done by the public ground (see Shitah Mekubetzes).

(a) We ask on Rav from a Beraisa 'be'Bor, Bein Lefanav Bein Le'acharav Chayav'. To reconcile Rav with this Beraisa, Rav Chisda establishes it by a Bor bi'Reshuso - in which case, Rav will agree with Shmuel seeing as the ground belongs to him too.

(b) Rabah establishes the Beraisa even by a Bor bi'Reshus ha'Rabim. To reconcile Rav with the Beraisa he establishes the case - when the animal turned round as it was falling. In both cases, the foul air in the pit took its toll (either at the beginning of the fall or at the end).

(c) Rav Yosef has a third interpretation of the Beraisa. According to him, it makes no difference where the Bor is, nor how the animal fell. According to him - the Beraisa is concerned (not with the damage of the pit to the ox, but) with damage of the ox to the pit, which contained water that got fouled up when the ox landed in it.

(a) Rav Chananyah cites a Beraisa in support of Rav. The Tana learns from the word "ve'Nafal" - that the owner of the pit is liable only if the ox fell into it in the normal way (forwards), but not if it fell in backwards.

(b) We ask why, in the case of 'Koreh', the owner of the pit is liable, seeing as it is the digger who caused the animal to fall. If the digger was the owner of the pit himself - this Kashya would no longer apply (because why should the fact that *he* caused the ox to fall into the pit make him less liable than if it had fallen in by itself? [see Maharam Shif]).

(c) If the digger was actually in the process of digging the pit (and not just widening it) when his hammering caused the animal to fall headlong into it - then *he* would be Chayav, (even assuming that he was digging it on behalf of someone else), since it is forbidden to dig a pit in the Reshus ha'Rabim. Consequently, based on the principle 'Ein Sheli'ach li'D'var Aveirah', *he* would be liable and not the Meshale'ach.

(d) We have already cited (the opinion of) Rav Shimi bat Ashi, who establishes the author of our Mishnah as Rebbi Nasan (and he is also the author of the Beraisa currently under discussion). Rebbi Nasan says in principle - that if one ox pushed another ox into a pit, the owner of the pit is liable for any part of the damage that the ox cannot pay.

(a) How do we resolve the apparent discrepancy between the Beraisa which obligates the owner of the pit to pay half, with the Beraisa which obligates him to pay three quarters (both citing the opinion of Rebbi Nasan) - by establishing the first Beraisa in the case of a Tam, and the second, in the case of a Mu'ad.

(b) The problem with the second Beraisa is that if Rebbi Nasan holds that each of the two Mazikin (the ox and the pit) performs ...

1. ... the whole damage - then he ought to have said that each one pays half the damage.
2. ... half the damage - then he ought to have said that the owner of the pit pays half and the owner of the ox, a quarter (and the remaining quarter, the Nizak loses).
(c) Rava warns us to be wary of taking Rebbi Nasan to task - because Rebbi Nasan was a Dayan, who delved into the depths of the Halachah.

(d) Rava therefore explains the second Beraisa like this. Assuming that each one performed ...

1. ... the whole damage, the owner of the pit must nevertheless pay three quarters - because it would not be fair to expect the Shor Tam to pay the full Chatzi Nezek whilst the Bor pays only half of its obligation), seeing as they were both partners in the damage.
2. ... half the damage, the owner of the pit must pay three quarters - because that is where the Nizak was found.
(a) Rava connects the Din of an ox that tripped over Reuven's stone into Shimon's pit with the Machlokes between Rebbi Nasan and the Rabbanan. It is not so obvious at all, because had Rava not told us so, we might have thought that the owner of the stone is Patur. This is because unlike the ox, who gored its friend independently of the pit (or who would have done so anyway), the stone would not have caused any damage had the pit not been there.

(b) The owner of the stone is not Patur because of G'rama, like the digger who caused the ox to fall into the pit - because unlike the latter, he did not just *cause* the animal to trip, it actually tripped over it.




(a) According to Abaye, if an ox belonging to a Hedyot together with one of Pesulei ha'Mukdashin gores a person or an ox, the former pays half. According to Ravina - he pays a quarter.

(b) We are talking here about Pesulei ha'Mukdashin of a Bechor, which does not need to be redeemed.

(c) This cannot apply to Pesulei ha'Mukdashin of other Kodshim which were redeemed - because once the latter are redeemed, they fall into the category of "Shor Re'eihu" (despite the fact that, like a Bechor Pesulei ha'Mukdashin, they may only be eaten, but not shorn or worked with).

(d) Abaye might be referring to a Mu'ad, and Ravina, to a Tam, both according to the Rabbanan. Alternatively, we can reconcile their respective opinions by establishing them both by a Tam, Abaye, according to Rebbi Nasan, and Ravina, according to the Rabbanan.

(a) Others cite the Machlokes differently. According to them, Ravina obligates the owner of the Hedyor ox to pay full damages. Abaye says - half.

(b) Ravina might be referring to a Mu'ad and Abaye, to a Tam, both according to Rebbi Nasan. Alternatively - they may both be referring to a Mu'ad, Abaye, like the Rabbanan, and Ravina, like Rebbi Nasan.

(a) In a case where a person and an ox together pushed another ox into a pit, all three are liable to pay for the damages.

(b) Should the damages involve ...

1. ... the four things (Tza'ar, Ripuy, Sheves and Boshes) or the killing of a woman's unborn babies - then only the person is liable, but not the other two (because the Torah writes there "Ish" and "Anashim" respectively).
2. ... the killing of a Jew (Kofer) or of an Eved - only the owner of the ox is liable.
3. ... the breakage of vessels or an ox of Pesulei ha'Mukdashin - the person and the owner of the ox are jointly liable, but not the owner of the pit.
(c) Rava learns that the owner of a pit into which an ox of Pesulei ha'Mukdashin fell is Patur - from the Pasuk (by Bor) "ve'ha'Meis Yiyheh Lo" (implying that he is Chayav only there where the carcass is his to sell, precluding an ox of Pesulei ha'Mukdashin, which can be eaten, but which cannot be redeemed to feed one's dogs).
(a) We are face with an apparent discrepancy between this statement of Rava, and Rava elsewhere, who is uncertain whether or not, to learn from this Pasuk - that 'Ba'alim Metaplin bi'Neveilah' (the Nizak bears the loss, should the carcass depreciate).

(b) We resolve this discrepancy - by concluding that Rava ultimately learns this from "ve'ha'Meis Yiyheh Lo" that is written by Shor.

(c) He prefers to learn the exemption from paying for Pesulei ha'Mukdashin by Bor (and 'Ba'alim Metaplin bi'Neveilah' from the Pasuk by Shor and, and not vice-versa) - because Bor already has one leniency, inasmuch as the Torah exempts it from paying for vessels that fall into it.

(d) We do not contend with the leniency of Chatzi Nezek of Tam, that applies to Shor but not to Bor (and switch the D'rashos on account of it) - because Chatzi Nezek is an independent Halachah. As far as Nezek Shalem is concerned, Bor, with its exemption from Keilim, is the more lenient of the two.

(a) Our Mishnah, which exempts a pit from the Nizakin of vessels, does not go like Rebbi Yehudah. The Rabbanan learn from the Pasuk "ve'Nafal Shamah ...
1. ... Shor - "Shor", 've'Lo Adam'.
2. ... O Chamor" - "Chamor", 've'Lo Keilim'.
(b) Rebbi Yehudah includes vessels (declining to exempt them from "Chamor") - because the Torah writes "O" to include them.

(c) The Rabanan learn from "O" - to divide Shor and Chamor (if not for "O", we would have thought that the owner of the pit is only liable if both an ox and a donkey fell into it.

(d) Rebbi Yehudah learns 'Lechalek from the singular form of "ve'Nafal". The Rabbanan disagree however. According to them - the Torah nevertheless needs to write "O" Lechalek, because "ve'Nafal" could be construed as a collective verb.

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