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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Kama 90


1) We have just explained the Machlokes between the two Beraisos (whether 'Nechsei Mi'lug Yotz'in le'Ishah ve'Lo le'Ish', or 'Lo le'Ishah ve'Lo le'Ish') in one of four ways. It is based on 1. ... the principle of Takanas Usha; 2. ... the fact that one was learned before the Takanah, and the other, after it; 3. ... Rava's principle (whether 'Hekdesh, Chametz ve'Shichrur Mafki'in Miydei Shibud' or not); 4. whether Takanas Usha was made to override Rava's principle or not. All explanations however, assumed that 'Kinyan Peiros La'av ke'Kinyan ha'Guf'. All explanations however, assume that Kinyan Peiros La'av ke'Kinyan ha'Guf. The fifth way of reconciling the two Beraisos - is by establishing that the Tana of the second Beraisa holds 'Kinyan Peiros ke'Kinyan ha'Guf'.


(a) Rebbi Meir in a Beraisa rules that if Reuven sells Shimon his Eved on condition that he alone may continue to use him for the first thirty days, the Din of "Yom O Yomayim" applies to Reuven but not to Shimon. The ramifications of Rebbi Meir's ruling are - that if Reuven wounds the Eved and he dies after twenty-four hours, he is Patur, whereas if Shimon does so, he is Chayav Miysah.

(b) His ruling is based on the principle - 'Kinyan Peiros ke'Kinyan ha'Guf Dami'.

(c) Rebbi Yehudah says - that the Din of "Yom O Yomayim" applies to Shimon but not to Reuven (because he holds 'Kinyan Peiros La'av ke'Kinyan ha'Guf Dami').

(d) Rebbi Yossi holds that the Din of "Yom O Yomayim" pertains to both of them - because he is uncertain whether 'Kinyan Peiros ke'Kinyan ha'Guf Dami' or not. Consequently, he applies the principle 'Safek Nefashos Lehakel', and neither receives the death-sentence.

(a) The fourth Tana is Rebbi Elazar (see Rashash), who holds - that neither Reuven nor Shimon is subject to the Din of "Yom O Yomayim".


1. The logical reason behind Rebbi Elazar's ruling is - because neither is the real owner; the woman because the Eved is not under her jurisdiction, and the man, because he does not belong to him.
2. The Pasuk on which Rava bases this ruling is - that of "Ki Kaspo Hu".
(a) Ameimar establishes the Beraisa like Rebbi Elazar. The Tana says that if a man and a woman both sold an Eved Mi'lug - the sale is invalid, even if both signed the document of sale jointly.

(b) If two partners sold an Eved that they owned jointly - the sale would be valid.

(c) The reason for the difference is - because in this latter case, each has full rights in the entire Eved which entitle him to half the Eved, whereas in the former case, neither has full rights in him, since one owns the Peiros, and the other, the Guf.

(d) In connection with the Beraisa which rules that a Chatzi Eved and Chatzi ben Chorin as well as an Eved belonging to two partners (see Tosfos DH 'Ish'), does not go out with Shen ve'Ayin, Rav Mordechai told Rav Ashi quoting Rava - that the author is Rebbi Elazar.

(a) According to the Tana Kama of our Mishnah, if Reuven blew a trumpet in Shimon's ear, he is obligated to is fined a Sela (for Bo'shes). 'ha'Tokei'a la'Chaveiro' might also mean - someone who punched him (on the ear).

(b) Rebbi Yehudah quotes Rebbi Yossi Hagelili as saying - that he pays (not a Sela, but) a Manah.

(c) Someone who slapped his friend's face is obligated to pay two hundred Zuz. If he ...

1. ... slapped him with the back of his hand, he must pay - four hundred Zuz.
2. ... pulled (or nicked) his ear, spat on him, removed his cloak, or uncovered a woman's hair in the street - he must pay four hundred Zuz, too.
(d) According to the Tana Kama, this all depends on the status of the person who has been shamed (this will be explained later in the Sugya). Rebbi Akiva says - that we consider even a poor person as if he was a rich man who had fallen on hard times (see 86a), because he too, is a descendent of Avraham. Yitzcahk and Ya'akov.



(a) The Tana tells the story of Rebbi Akiva, who fined a certain man four hundred Zuz for uncovering a woman's hair in the street. The culprit asked for time to pay - in order to prove that the woman did not not hesitate to uncover her own hair in public.

(b) He proved this - by breaking a barrel of oil whilst she was standing at the entrance of her Chatzer, and appointing two witnesses, who saw how she removed her head-covering in order to absorb some of the spilling oil.

(c) Rebbi Akiva however - was not impressed. He explained that a person who wounded oneself is Patur (even though it is forbidden to do so), yet if others were to wound him, they would be liable.

(d) Similarly, he added, a person who cuts down his fruit-trees is Patur (even though it is forbidden to do so), yet if others were to do so, they would be liable to pay.

(a) We ask whether the Sela and the Manah in our Mishnah refer to the Tzuri system of the Medinah - which is one eighth of the former.

(b) We resolve the She'eilah from a Beraisa, where, when a man who blew a trumpet in someone's ear was brought before him, Rebbi Yehudah Nesi'ah said - 'There is I, and there is Rebbi Yossi Hagelili, who fixed the price as a Manah Tzuri' (though this clashes with the Sugya in Perek 'Shor she'Nagach Daled ve'Hey' - see Tosfos Yom-Tov).

(c) We query the suggestion that what he meant was that he was ruling because he saw the episode and that Rebbi Yossi Hagelili stated the figure as a Manah Tzuri - because then Rebbi Yehudah Nesi'ah would hold 'Eid Ne'aseh Dayan' (a witness who testifies can then act as a Dayan too), which seems to clash with both opinions in the Beraisa that we are about to discuss.

(d) In a Beraisa, Rebbi Tarfon rules that if the Sanhedrin saw Reuven murder Shimon, some of the Dayanim adopt the role of witnesses and others of Dayanim. Rebbi Akiva says - that since they are all potential witnesses (seeing as they witnessed the event), they can no longer act as Dayanim.

(a) Both Tana'im agree that 'Ein Eid Na'aseh Dayan'. We initially reconcile this with the current suggestion that what Rebbi Yehudah Nesi'ah meant was that he was ruling because he had seen the episode - by establishing the case of the Beraisa when the event took place at night, when Beis-Din cannot convene, and which therefore requires fresh testimony in the daytime; whereas Rebbi Yehudah Nesi'ah, who had witnessed the episode by day, was able to rule by virtue of what he himself saw ('she'Lo Tehei Sheni'ah Gedolah me'Re'iyah' [because seeing cannot be worse than hearing]).

(b) Rebbi Yehudah Nesi'ah then holds - like Rebbi Tarfon (see Tosfos DH 'K'gon)?

(c) Assuming that the Sanhedrin witnessed the murder by day we reinterpret Rebbi Yehudah Nesi'ah's statement to mean - that he concurs with Rebbi Yossi Hagelili (but ot that he saw the episode).

(a) Shimon ha'Teimani learns from the Pasuk "ve'Hikah Ish es Re'eihu be'Even O be'Egrof" - that just as a fist ("Egrof") is available for both the Sanhedrin and the witnesses to see, so too, must the murder weapon be available for the Sanhedrin to see (in order to assess whether it is fit to kill or not). Consequently, if it got lost, the murdered cannot be sentenced.

(b) Rebbi Akiva disagrees with Rebbi Shimon ha'Teimani. According to him - it will suffice if the weapon is seen by the witnesses (but not necessarily by the Beis-Din).

(c) He argues on him on the grounds that a. the murdered did not strike the victim in the prsence of the Beis-Din; b. they did not see where the murderer struck the victim; 3. nor did they see the rooftop from which he pushed him off (and certainly not if the building collapsed), yet they believe the witnesses in all of these points. In that case, let them also believe the witnesses with regard to the murder weapon.

(a) We can infer from Rebbi Akiva's words 've'Chi bi'F'nei Beis-Din Hikahu' - that if the murderer would have committed the murder in front of Beis-Din, then they would have been able to rule on the basis of what they witnessed.

(b) We reconcile this with what he said earlier (that 'Ein Eid Na'aseh Dayan') - by establishing the latter statement as being, not his own opinion, but merely in answer to Rebbi Shimon ha'Teimani's statement.

(a) The Beraisa says that if a Shor Tam gored Reuven to death and wounded Shimon, Beis-Din will sentence the ox to death, but will not open the case for damages - because, seeing as a Shor Tam only pays from the body of the ox, and in this case, the ox is destined to be stoned (in which case it will Asur be'Hana'ah), there is no point in doing so.

(b) In the equivalent case by a Mu'ad - the Tana says that Beis-Din first deal with the case regarding damages, and then sentence the ox to death (because there, the owner will be able to pay for the damages from his pocket).

(c) In the event that they inadvertently dealt with the case of Miysah and sentenced the ox to death, the Beraisa concludes - they will not open the case of damages at all.

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