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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 91

BAVA KAMA 91 (9 Cheshvan 5762) - dedicated in honor of the Bar-Mitzvah of Shmuel Tavin, by his parents. May he continue to grow in Torah and the fear of Hashem, and bring them true Nachas. Mazel Tov, also, on the birth and upcoming Bris of Shmuel's brother, may his parents merit to raise him "l'Torah l'Chupah ul'Ma'asim Tovim!"



(a) The Rabbanan de'Bei Rav establish the Beraisa, which rules 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, like Rebbi Shimon ha'Teimani - who requires the weapon [or the damager] to be assessed in Beis-Din. On the other hand, having ruled that the animal is Chayav Miysah, we will apply the principle of 'Inuy ha'Din' (that it is forbidden to refrain from carrying out the death-sentence overnight).

(b) Rabah disagrees. According to him, the Tana might even hold like Rebbi Akiva (who does not require the weapon to be assessed). Nevertheless, Beis-Din do not judge the animal in order to pay damages - because we are speaking when the owner ran away, and we do not sentence the ox in his absence.

(c) Despite the fact that the Tana is speaking when the owner ran away, the ox is nevertheless sentenced to Miysah for the first goring - because he only ran away after the first witnesses had already been accepted.

(a) We ask that, seeing as the Mu'ad will be sentenced to death for the first goring (and Asur be'Hana'ah), what would be the point of judging it for damages first. There is no question of judging it for damages which we would then claim from the Mazik's property - ecause the Tana speaks when the Mazik had no property with which to pay.

(b) The point of judging it for damages first would be - in order to rent it out for working, until it has earned enough to pay for the damages, and then to open the proceedings for the first goring.

(c) In that case, we ask, why do we not also judge *the Tam* first for damages, in order to pay the Nizak from the income of the plowing before judging it for the first goring, to which Rav Mari Brei de'Rav Kahana replies - that the proceeds of the plowing is considered min ha'Aliyah, and a Tam only pays mi'Gufo.

(a) We ask whether we assess for damages like we assess for Miysash. We are considering assessing - the object that caused the damage.

(b) We learn from the Pasuk "be'Even Yad Asher Yamus Bah" - that the murder-weapon must be assessed.

(c) We try to resolve our She'eilah from the Beraisa which, after giving the Shiur for a Bor of Miysah as ten Tefachim, adds 'Hayu Pechusin me'Asarah Tefachim, ve'Nafal le'Tocho Shor O Chamor ... Huzak Bo, Chayav' - by explaining 'Pachos me'Asarah Tefachim' to mean anything from one Tefach to ten Tefachim (in which case it is evident that no assessment is necessary).

(d) We refute this proof however, by explaining 'Pechusin me'Asarah Tefachim' to mean - from ten Tefachim and downwards, which implies that a pit does not need to be ten Tefachim when it comes to Nizakin, but that it nevertheless requires assessment.

(a) We try to resolve our She'eilah from the Beraisa which absolves someone who strikes the wall next to his Eved and deafens or blinds him from having to set him free - because, we think, such a stroke is insufficient to make him deaf and it must have been the weakness of the Eved that caused him to go deaf or blind (a clear proof that a stroke requires assessment).

(b) We refute this proof however, on the basis that even if any stroke will suffice to make him deaf or blind, the master would be Patur from freeing his Eved - because, seeing as he did not even touch the Eved, it is clear that it is the Eved's nervousness that is partly to blame for the wound.

(c) And we prove this from another Beraisa, which states - that someone who gives his friend a shock by blowing in his ear is Patur be'Diynei Adam, but Chayav be'Diynei Shamayim (which he would not be if the stroke would be inadequate to cause the wound).

(d) He would nevertheless be Chayav be'Diynei Adam - if he grabbed him before blowing, because then it is *his* act that caused the deafness or blindness, rather than the nervousness of the Nizak.

(a) Another Beraisa explains how all five things require assessment. Beis-Din assess Ripuy and Sheves for the entire period that they expect the Nizak to be bed-ridden, and the Mazik is obligated to pay up front.

(b) The Tana rules that if they assessed the Nizak up to a certain date with regard to Ripuy and Sheves ...

1. ... but he took longer to heal than expected - the Mazik pays the initial amount (and no more).
2. ... and he healed quicker than expected - the Mazik still pays the initial amount (and the Nizak's gain is his good fortune).
(c) We cannot resolve our She'eilah from there (that damages require assessment, too) - because the Beraisa is talking about assessing the wound, whereas the She'eilah concerns the weapon.

(d) We finally resolve the She'eilah from Shimon ha'Teimani - who specifically learns from "Egrof" that the weapon needs to be assessed by both the witnesses and the Beis-Din (and even Rebbi Akiva agrees that the witnesses at least, need to assess it).

(a) The Beraisa that we just learned, which obligates the Mazik to pay the full essessment of Ripuy and Sheves even if the Nizak healed quicker than expected, supports Rava, who says that if they assessed a wounded man Ripuy and She'ves for one day, and he healed in half a day - the Mazik must nevertheless pay for the full day.

(b) We learned in our Mishnah that one is Chayav to pay Bo'shes for spitting at someone if the spit reaches him. Rav Papa qualifies the Halachah - by establishing it specifically when the spit falls on his body, but not if it falls on his clothes.

(c) Spitting on his clothes is indeed no worse than embarrassing him by calling him names - only one is not Chayav for doing that either.

(a) With regard to the amounts fixed by the Tana in our Mishnah, the Tana Kama stated 'Zeh ha'K'lal, ha'Kol L'fi Kevodo' - this could mean le'Kula (that the amounts pertain to a Nizak who is wealthy, but that when he is poor, the Mazik pays less) or it could mean le'Chumra (that the Tana refers to a Nizak who is poor, but that if he is rich, he pays more).

(b) We resolve the quandry from Rebbi Akiva ('Afilu Aniyim she'be'Yisrael ... ') - which implies a Chumra, that the Tana Kama must go le'Kula. Alternatively, if the Tana Kama was referring to the poorest of the poor, 'ha'Kol L'fi Kevodo' was coming to be Machmir, and Rebbi Akiva was merely corroborating the Tana Kama's statement, then he should have obligated the culprit in our Mishnah to pay more than four hundred Zuz.

(c) We resolve Rebbi Chanina, who holds that we do not give any extention of time for damages with Rebbi Akiva in our Mishnah, who gave the culprit time when he asked for it - by establishing Rebbi Chanina by actual damages, which cause the Nizak a loss of pocket, and Rebbi Akiva by Bo'shes, which do not.

(a) When Rebbi Akiva in a Beraisa, said to the culprit in our Mishnah 'You dived into deep waters and brought up some clay'! - he meant that his efforts to prove that the woman had no self-respect anyway, were all in vain.

(b) The problem with the Beraisa, which continues 'Adam Rashai Le'chabel be'Atzmo ... ' - is that it clashes with our Mishnah which specifically writes 'af-al-Pi she'Eino Rashai'.

(c) Rava draws a distinction between Chavalah, which is forbidden - and Bo'shes, which is permitted.

(d) We then explain our Mishnah, which specifically refers to Bo'shes, yet the Tana states 'af-al-Pi she'Eino Rashai ... ' like this - 'There is no need to mention that one is Chayav Bo'shes, which a person is permitted to do to himself, but one is even Chayav for Chavalah, which he is not.




(a) The Tana of the Beraisa learns from the Pasuk (in connection with bringing a Korban Oleh ve'Yored for making a false oath) "Le'hara O Le'heitiv" - that just as "Le'heitiv" refers to something that is permitted, so to does "Le'hara" ...

(b) ... which appears to prove that one is permitted to wound oneself (for what else would "Le'hara" mean?)

(c) In order to refute this proof - Shmuel establishes the case of "Le'hara" by someone who swore to fast.

(d) The Beraisa in Shevu'os then declares void a similar Shevu'ah to do harm to others, which Shmuel will explain to mean - that he plans to locks him in a room without food.

(a) We reject Shmuel's interpretation of the Beraisa however, on the basis of another Beraisa, which specifically describes 'Hara'as Acherim' as - 'striking so-and-so and splitting his brains'.

(b) If 'Hara'ah' actually means wounding, we will reconcile the current Beraisa (as well as the Beraisa where Rebbi Akiva himself permits wounding oneself) with Rebbi Akiva in our Mishnah, which forbids wounding oneself - by turning it into a Machlokes Tana'im as to what Rebbi Akiva holds.

(c) Rebbi Elazar ...

1. ... interprets the Pasuk "ve'Ach es Dimchem le'Nafshosechem Edrosh mi'Yad ... " - to mean that Hashem will punish anyone who commits suicide (as if the Torah had written "mi'Yad Nafshosechem Edrosh es Dimchem").
2. ... argues with the Tana Kama of a Beraisa, who permits tearing one's clothes over a dead person (for whom one is not obligated to tear Keriy'ah) - inasmuch as he holds that someone who does so has transgressed the La'av of bal Tashchis.
(d) We cannot equate the Tana in our Mishnah, who quotes Rebbi Akiva as saying that one is forbidden to wound oneself ...
1. ... with Rebbi Elazar in the first Beraisa - because death is obviously worse than merely wounding oneself.
2. ... with Rebbi Elazar in the second Beraisa - because tearing clothes falls under the category of 'bal Tashchis', whereas a temporary wound does not (a strong Pircha on the 'Kal va'Chomer').
(a) In support of the previous distinction between one's body and one's clothes ...
1. ... Rebbi Yochanan tended to call his clothes - 'Mechabdusai' (the ones that honor me).
2. ... Rav Chisda, when walking through brambles - used to raise the hem of his cloak, because, he argued, the scratches on his body would heal, whereas his torn clothes would not.
(b) We finally establish the Tana of our Mishnah (who quotes Rebbi Akiva as saying that one is forbidden to wound oneself) as Rebbi Elazar ha'Kapar. He explains the Pasuk (in connection with a Nazir who became Tamei Meis) "ve'Chiper Alav me'Asher Chata al ha'Nefesh" to mean - that the Nazir requires an atonement for having abstained from wine ...

(c) ... how much more so does someone who wounds oneself or even fasts require an atonement.

(a) Rabah bar bar Chanah quoted a Beraisa in front of Rav. The Tana there states - that if Shimon admits to having killed his ox or cut down Reuven's trees, but claims that Reuven instructed him to do so - he is believed.

(b) Normally - a person would not be believed to make such a ludicrous claim. But the Tana is speaking in the case of an ox that was anyway destined to be killed (i.e. it had gored a person to death) and a tree that was destined to be cut down (because it had either been worshipped, or it was overhanging into the street and was threatening to fall and cause serious damage).

(c) Reuven's claim against Shimon was - that *he* wanted to be the one to perform the Mitzvah of cutting it down.

(d) Shimon is nevertheless believed - because people are not normally fussy about such a minor benefit. Consequently, it seems likely that Shimon is telling the truth, and that Reuven simply forgot that he asked Shimon to do it.

1. We learn from the Pasuk "Ve'Shafach ve'Chisah" - that the person who Shechts a bird or a deer is obligated to perform the Mitzvah of covering the blood.
2. When Reuven Shechted a bird or a deer, and Shimon promptly covered the blood without Reuven's consent - Rebbi obligated Shimon to pay Reuven ten golden Zuzim (for the lost B'rachah [see Tosfos d.h. 've'Chiyvo').
(b) Rav said that once a date-palm produces a Kav (a hundred and forty four egg-volumes) of dates annually - it is forbidden to cut it down (because of bal Tashchis).

(c) For an olive-tree to be subject to the Isur of bal Tashchis - it needs to produce only a quarter of a Kav, because olives are more valuable than dates.

(a) Rebbi Chanina's son Shichvas, died young - because he cut down a fruit-tree that was still producing fruit.

(b) Ravina permits cutting down a fruit-tree - as long as the value of the wood (for building) exceeds that of the fruit.

(c) We learn from the Pasuk in Shoftim ...

1. ... "Rak Eitz Asher Teida" - that if the nearest tree to the besieged city is a fruit-tree, then one may cut it down.
2. ... "Ki Lo Eitz Ma'achal Hu" - that if the nearest tree is a non-fruit-bearing tree, then one may cut it down.
(d) Even though the Torah has permitted cutting down even a fruit-tree, it nevertheless needs to include a non-fruit-bearing one - to teach us that if it is a question of choosing between one of the two, one must first cut down the non-fruit-bearing tree.
(a) The Tana learns from the word "*Rak* Eitz Asher Teida ... " - that if the non-fruit-bearing tree is more valuable for its wood than the fruit-tree, then one cuts down the fruit-tree.

(b) Shmuel ordered his resident-gardener to cut down date-palms - because, the dates tasted of wine, and when the gardener informed him that they were growing among the vines, he realized that they were sapping the strength from the vines (and had to go).

(c) When he said to him 'Aysi Li Mekorayhu', he might have been instructing him to bring him the roots. 'Mekorayhu' might also mean - the soft part of the vine that grows around its roots and is edible (though either way, he meant that he should remove the palms with the roots).

(d) When Rav Chisda noticed small date-palms growing among the vines, he instructed his resident-gardener to cut them down, rather than the vines - because one could sell the wine, and purchase date-palms with the proceeds, but not vice-versa.

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