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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 56

BAVA KAMA 56 (Rosh Hashanah) - sponsored by Mr. and Mrs. D. Kornfeld in prayer that Hashem may accept our prayers, in these days of Rachamim, and speedily grant Klal Yisrael a true and complete redemption from all of their enemies, returning His Shechinah to Tziyon and His people to His service!



(a) We learned in the Beraisa that if Reuven bends Shimon's corn into the path of a fire he is only liable be'Diynei Shamayim'. The Tana is speaking when - it is an irregular wind that subsequently carried the fire to the corn (rendering him a partial O'nes'). Had it been a regular ind, he would have been fully liable.

(b) According to Rav Ashi, the Tana might even be speaking in the case of a regular wind. Nevertheless, he is not fully liable to pay - because, according to Rav Ashi, the Tana speaks when he covered the corn, making it 'Tamun', exempting the owner of the fire from liability (though the Lashon 'ha'Kofef Komaso' is unclear, according to this explanation). And this is certainly no more than Gerama.

(c) When the Tana includes Reuven ...

1. ... hiring false witnesses in his list, he is speaking - when he hired them on behalf of someone else, because had he hired them for himself, he would be fully liable to repay the money that he falsely extracted by means of the witnesses.
2. ... declining to testify on behalf of Shimon, he is speaking when he is the sole witness, whose testimony might have caused Levi to pay (though he did have the option of swearing falsely, hence the P'tur be'Diynei Adam). Had there been another witness, in which case Levi would have had no option other than to pay, Shimon would have been fully liable to pay.
(d) When the Torah writes "ve'Hu Eid ... Im Lo Yagid ve'Nasa Avono", it must be referring to two witnesses, and not just to one - a. because the Lashon "Im Lo Yagid" implies that if he would testify, he would obligate the defendant to pay, and b. because of the principle that wherever the Torah writes "Eid", it means two witnesses (see Gilyon ha'Shas).
(a) What the following cases have in common is - that they too, are all Chayav be'Diynei Shamayim, but Patur mi'Diynei Adam: 'ha'Oseh Melachah be'Mei Chatas u've'Paras Chatas', 'ha'Nosen Sam ha'Mavas Bisfnei Beheimas Chaveiro', 'ha'Sholei'ach es ha'Be'eiroh be'Yad Chashu', and 'ha'Mav'is es Chaveiro'

(b) In 'ha'Oseh Melachah be'Mei Chatas' ...

1. ... the sort of Melachah involved is - weighing something against it on the scales?
2. ... the reason that he is Patur mi'Diynei Adam is - because it is a Hezek she'Eino Nikar' (an indiscernible damage - see Gilyon ha'Shas).
(c) The Tana of the Beraisa also includes in his list, the case of and 'Nishberah Kado bi'Reshus-ha'Rabim, ve'Lo Silkah ... ', according to the Rabbanan. Rebbi Meir says - that he is Chayav be'Diynei Adam too (because he holds 'Niskal Poshei'a ... '), as we learned in 'ha'Meni'ach'.

(d) Despite the fact that these five cases are also Chayav be'Diynei Shamayim ... , Rebbi Yehoshua lists only the above four - because each one is a Chidush, as we shall now proceed to explain.

(a) If Rebbi Yehoshua had not listed ...
1. ... ha'Poretz Geder Bifnei Bahamas Chaveiro', we would have thought - that seeing as the wall was destined to fall down anyway (as we explained above), he would not even be liable be'Diynei Shamayim either.
2. ... 'ha'Kofef Komaso shel Chaveiro Bifnei ha'Deleikah (regarding a Ru'ach she'Eino Metzuyah)' we would have thought - that he is Patur, because how was he to know that an unusual wind would blow just at that moment?
3. ... regarding a 'Ru'ach Metzuyah, according to Rav Ashi - we would have though - that he is Patur, because he was really trying to help, by protecting the produce against the fire by covering it, and making it Tamun was an unfortunate by-product of his efforts.
(b) And had he not specifically listed ...
1. ... 'ha'Socher Eidei Sheker' we would have thought - that he is even Patur mi'Diynei Shamayim, because, due to the principle 'Divrei ha'Rav ve'Divrei ha'Talmid Divrei Mi Shom'in?' he can claim that he never expected the false witness to listen to him and testify falsely.
2. ... 'ha'Yodei'a Eidus la'Chaveiro, ve'Eino Me'id Lo' - that he is even Patur mi'Diynei Shamayim, because he can say that even if he would have testified, he reckoned that the defendant would have sworn falsely to avoid paying.
(a) We learned in our Mishnah that if the sheep broke out in the night, the owner is Patur, which Rabah establishes - when the animal dug its way underneath the wall.

(b) We extrapolate from Rabah that if the sheep had not dug under the wall (but the wall collapsed) he would be liable. This cannot be speaking about a strong wall - because then why would he be liable (since he cannot be blamed for the wall having collapsed).

(c) The problem if we then establish it by a rickety one is - why he should then be Patur even if the animal escaped, seeing as this is a case of 'Techilaso bi'Peshi'ah, ve'Sofo be'O'nes' (which some maintain is Chayav).

(a) We are therefore forced to conclude - that Rabah was not referring to the Reisha (which is speaking about a strong wall, and is Patur whether the animal dug or not), but to the Seifa 'Hinichah be'Chamah, O she'Masrah le'Chashu, ve'Yatzsah ve'Hizikah, Chayav'.

(b) What Rabah is coming to teach us is - that even if the sheep dug under the walls, he is Chayav. This is because, due to having left it in the sun, he should have realized that it would go to superhuman lengths to break out and find shade.

(c) Even those who hold 'Techilaso bi'Peshi'ah ve'Sofo be'O'nes' is Patur' will agree that he is Chayav in this case - because, due to the previous S'vara, it is really a case of 'Techilaso ve'Sofo bi'Peshi'ah'.




(a) We ask why the Tana of our Mishnah needs to tell us that if the robbers took the animal from the pen (and from the owner's Reshus), they are liable. It is obvious that they are - on the basis of the Kinyan Meshichah together with Shinuy Reshus, which acquires completely.

(b) We answer this in two ways, one of them, based on a statement by Rabah Amar Rav Masna Amar Rav, who said 'ha'Ma'amid Behemas Chaveiro al Kamas Chaveiro, Chayav'. What he meant was that if someone stood in front of the animal, blocking its path and forcing it to move towards his friend's corn, which it subsequently ate, he is Chayav.

(c) Abaye reminded Rav Yosef that he had established Rav (and therefore our Mishnah) differently. According to him, Rav (and our Mishnah) speaks when he caused the animal to move by striking it with a stick (and the Chidush is that one can perform Meshichah through hitting the animal).

(a) Our Mishnah also states that if he handed the sheep to a shepherd, the shepherd takes his place. The Tana cannot be teaching us that it is the *owner's* place that the shepherd takes - because he has already taught us this in a Mishnah in 'Shor she'Nagach Arba'ah ve'Chamishah'.

(b) It is the place of the first Shomer that he takes over.

(c) This seems to clash with Rava however, who said that if one Shomer hands over an animal to another Shomer - he is liable.

(d) It is incorrect to say that the first Shomer is only Chayav for stheft and loss, but for O'nes, the second Shomer swears, absolving himself and the first Shomer from liability - because the owner has the right to decline to accept any Shevu'ah of the man to whom he did not hand his animal in the first place.

(a) Rava therefore establish our Mishnah - when the Shepherd to whom the Shomer handed the sheep was his own apprentice (to whom one commonly hands the sheep to look after, and which the owner therefore tends to permit).

(b) Others infer from the fact that the Tana says specifically 'Masrah *le'Ro'eh'* - that it is only to one's apprentice that one may hand it, but not to anyone else.

(c) This is not a clear proof for Rava however - since the Tana might mention 'Ro'eh' (not to exclude others, but) because it is more common.

(a) Rabah considers a Shomer Aveidah a Shomer Chinam. Rav Yosef considers him - a Shomer Sachar.

(b) If Rabah's reason is because the finder gains nothing by looking after the article, Rav Yosef's is - because should a poor man arrive at the door while he is busy with the article, he is Patur from giving him Tzedakah.

(c) Others attribute to Rav Yosef the reason - that since the Torah is strict with the finder, obligating him to return the lost article against his will, it probably makes him a Shomer Sachar rather than a Shomer Chinam.

(d) The ramifications of the Machlokes are - whether he is liable for theft and loss (Rav Yosef) or not (Rabah).

10) We learn from the Pasuk in the Sh'ma "u've'Lechtecha ba'Derech" - that 'ha'Osek be'Mitzvah, Patur min ha'Mitzvah'.

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