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Bava Kama, 9

1) PAYING FOR DAMAGES WITH "KESEF," "SHAVEH KESEF," OR "MEITAV SADEHU"

QUESTION: Rashi explains that Rav Huna is answering the question of Abaye earlier (7a), regarding the apparent contradiction between the verse that permits a Mazik to pay for damages with *Kesef* (money), and the verse that requires that one pay with "Meitav Sadehu" (the highest quality of land). Rav Huna answers that the verse means that the Mazik may pay either with Kesef or with Meitav Sadehu. It is not necessary to pay exclusively with land.

Rav Nachman asks that this does not answer the question of Abaye. The verse teaches that one may pay not only with Kesef, but with *Shaveh Kesef* (any item of value)! Why, then, does the Torah write that one must pay with Meitav Sadehu, implying that one must pay with land (or Kesef, which is considered like land), when one may pay even with Shaveh Kesef?

Rav Huna answers that Shaveh Kesef may be used only if the Mazik has no land or Kesef. We might have thought that the Mazik must sell his Shaveh Kesef in order to pay with Kesef or land. Therefore, the verse teaches that "Shaveh Kesef" is like "Kesef" and he does not have to sell his items of Shaveh Kesef in order to obtain Kesef or land or Kesef.

What did Rav Huna mean when he answered originally "either Kesef or Meitav?" The question of Abaye was not that the verse which allows payment of Kesef contradicts the verse of Meitav Sadehu, but that the verse that allows payment of *Subin* (Shaveh Kesef) contradicts the verse that requires payment with Meitav Sadehu! (See NACHALAS DAVID.)

ANSWER: The answer is that Rav Huna never intended that his statement "Kesef or Meitav" be an answer to Abaye's question. The answer that he is suggesting is that one may use Subin only when one has no Kesef or land with which to pay. The statement of "Kesef or Meitav" was necessary as an introduction to his answer, as we will explain.

We might have thought that the Torah requires a person to pay with Meitav of land even if he has Kesef with which he can pay, because land is considered a better form of payment (since it cannot easily be lost or destroyed). However, if this is true, it would not have been necessary for the verse to say that if one does not have land, one may pay with Kesef or with Shaveh Kesef. There would be no reason to assume that a person must purchase land with his Kesef or Shaveh Kesef in order to pay with land. We would not have considered that a possibility, since it is not in his control to successfully persuade another person to sell land to him; perhaps he will find no one who wants to sell him land! Therefore, it certainly is preferable to pay with whatever he has, rather than to wait for someone to sell him land.

However, now that Rav Huna emphasizes that Kesef is an equally acceptable form of payment as land, then we might have considered the possibility that if the Mazik has neither Kesef nor land, he cannot pay with Shaveh Kesef but rather he must sell it and pay with the Kesef that he receives in exchange, since it always possible to bring an item of value to the marketplace and receive money in exchange for it. Therefore, since payment of money is the best form of payment, it was necessary for the Torah to teach that payment of Shaveh Kesef is also acceptable. (M. Kornfeld)

OPINIONS: Rav Huna explains that Shaveh Kesef can be used to pay for damages only when the person has no land or Kesef. This appears to contradict the ruling of Rav Papa and Rav Huna brei d'Rav Yehoshua (7b), who rule that every form of Shaveh Kesef (except for land) is considered "Meitav" and is as equally valid as Kesef as a form of payment. According to Rav Papa, it seems that a person may pay with Shaveh Kesef even if he has Kesef or land.
What is the Halachah?

(a) The RIF and ROSH rule like Rav Papa, who says that one may always pay with Shaveh Kesef. The Rosh cites two reasons to justify this ruling. First, Rav Papa lived after Rav Huna, and therefore he is a later authority ("Basra") and the Halachah always follows the later Amora. Second, the Gemara later (10a) teaches that if a person wants, he may pay for someone's ox that his ox killed with the flesh of dead oxen. The Gemara implies that even if one has Kesef, he may still pay with dead oxen (Shaveh Kesef). As the NIMUKEI YOSEF points out, most Rishonim follow this ruling.

(b) RABEINU TAM (cited by Tosfos DH Rav Huna) rules like Rav Huna. Why does he not rule like Rav Papa, who is the later Amora? The ROSH suggests, first, that perhaps Rabeinu Tam rules like Rav Huna because the Gemara places his statement after Rav Papa's, implying that Rav Huna's is the conclusive ruling. Alternatively, perhaps Rabeinu Tam understood that Rav Huna and Rav Papa are not arguing with each other (see Tosfos). Rather, Rav Papa -- who says that all Shaveh Kesef is considered Meitav -- is explaining why a person does not have to pay with the *best* Subin that he has when he has no Kesef. He explains that when it comes to Shaveh Kesef, there is no significant difference between the best quality and the worst quality of a product. However, Shaveh Kesef is certainly less desirable than Kesef or land, and, therefore, if the Mazik has Kesef or land, the Torah requires that he pay with the Kesef or land and not with Shaveh Kesef.

(c) RASHI in Gitin (48b, DH Min ha'Idis, and 49a, DH Hacha b'Mai Askinan) writes that if a person has Kesef, he may not pay with land (and certainly not with Shaveh Kesef). It is only when he has no Kesef that he may pay with land (or with Shaveh Kesef). The NIMUKEI YOSEF here quotes a similar ruling in the name of the RAMAH.

However, this ruling seems to contradict the statements of both Rav Huna and Rav Papa! (See RASHASH in Gitin.)

It seems that Rashi and the Ramah are ruling like Rav Papa. They maintain, though, that all of the Amora'im -- except for Rav Huna -- considered Kesef to be a better form of payment than land. Rav Huna is the one who suggests that one may pay with Kesef or with land, and that they are equal forms of payment. Accordingly, Rav Papa (7b) was only explaining why it is that when a person has no Kesef, he may pay with either Meitav Sadeh or with any quality of Shaveh Kesef. He explained that it is not necessary to pay with Meitav (the highest quality) of Shaveh Kesef since all Shaveh Kesef, aside for land, is considered to be Meitav. However, neither Shaveh Kesef nor Meitav of land is considered as preferable a payment as Kesef.

Rashi in our Sugya does not seem to be explaining Rav Papa in this way. In a number of places he implies that it is the *Mazik's* decision whether to pay with land or with any other form of payment (Rashi 2b, DH b'Meitav; 5a, DH Tachas Nesinah; 6b, DH Lo Ba). This is especially clear from Rashi earlier (7a, DH mi'Da'ato), where he explains that according to the Havah Amina of the Gemara, if the Mazik troubles the Nizak to bring him to Beis Din in order to collect compensation for the damages, then the Mazik may not pay with Shaveh Kesef, but rather he must pay with *Kesef*. As the RASHASH points out, Rashi should have written that he must pay with "*Meitav* [Karka]" (since the Gemara was trying to resolve a contradiction between the verse that allows payment with Shaveh Kesef and the verse that requires payment with "Meitav Sadehu;" some manuscripts actually have the word "Meitav" in the text of Rashi, instead of the word "Kesef). It seems that Rashi considers Meitav Karka and Kesef to be equal forms of payment, and the only question of the Gemara is whether Shaveh Kesef is an equally valid form of payment (according to Rav Papa, it is an equally valid form of payment, and according to Rav Huna, it is not).

HALACHAH: The TUR (CM 419) and the RAMBAM (Hilchos Nizkei Mamon 8:10) rule like the ROSH and RIF, that a Mazik may pay with Shaveh Kesef if he prefers.

However, the Rambam and Tur add an ambiguous statement that "if the Mazik has Shaveh Kesef, then Beis Din does not confiscate his land for the payment of the damage." The Acharonim differ over the interpretation of this statement.

The BEIS YOSEF infers from this statement that the Rambam is ruling that payment of Kesef or Shaveh Kesef is preferable to payment of Meitav Karka (this is the opposite of the way Rabeinu Tam rules). This is also the understanding of the SHACH (CM 419:2) and the NIMUKEI YOSEF (Bava Basra 92a) cited by the Shach. The Shach finds a source for this ruling in the Gemara later (14a), which implies that Shaveh Kesef is an equally acceptable form of payment as Kesef, while Karka is not.

The Shach and the VILNA GA'ON add that the Rambam might have understood this to be the intention of Rav Huna in our Sugya as well. Rav Huna, who says "Kesef or Meitav," means that one may pay with Kesef, and if *he does not have Kesef*, then he may pay with Karka. The Gemara asks that Shaveh Kesef is also as valid a form of payment as Kesef! It answers that Shaveh Kesef is as good as Kesef, and only when the Mazik has no Kesef or Shaveh Kesef is he allowed to pay with Karka.

According to this way of understanding Rav Huna's statement, Rav Huna does not argue with Rav Papa. Both agree that Shaveh Kesef is considered like Kesef. (According to this interpretation, it is not clear how Rav Asi's statement that Kesef is like Karka is in agreement with Rav Huna, as the following Sugya asserts. See NACHALAS DAVID.)

Other Acharonim explain the words of the Tur and Rambam differently. They explain that the Tur and Rambam simply mean that the Mazik may choose to pay with whatever form of payment that he prefers. They are assuming that the Mazik would not want to part with his land if he can use some other form of payment, and therefore they write that Beis Din cannot confiscate the Mazik's land against his will unless he has no other means with which to pay for the damage. (See BACH, citing the MAGID MISHNAH; ME'IRI here; SEFER ME'IRAS EINAYIM. The VILNA GA'ON infers from a slight difference of wording between the Rambam and the Tur that the Rambam is ruling the first way (like the Beis Yosef), and that the Tur is ruling the second way (like the Bach).)

According to this interpretation, the Rambam is in agreement with the Rif, and the Mazik may choose any form of payment that he prefers.

9b

QUESTION: The Gemara teaches that one should spend up to a third of the value of a Mitzvah in order to beautify the Mitzvah (making it more "Mehudar"). The Gemara adds that in Eretz Yisrael they said that when a person spends up to a third, "it is from his own," and anything more than that "is from Ha'Kadosh Baruch Hu." This implies that a person will be rewarded if he spends more than a third for beautifying a Mitzvah, but not if he spends up to a third.

This is problematic, though, because if there is reward in this world, then both should be rewarded in this world. On the other hand, if there is no reward in this world for Mitzvos, then neither one should be rewarded in this world! (See Kidushin 39b-40a.)

ANSWERS:

(a) RABEINU CHANANEL explains that "from Ha'Kadosh Baruch Hu" has nothing to do with the reward that a person receives for beautifying a Mitzvah. Rather, it means that more than a third is voluntary, while up to a third is obligatory, and a person will be punished if he does not spend that much.

Alternatively, the Gemara means that a person should only spend more than a third if he sees that Hashem has given him enough money to do so. He is not allowed to take money out of funds designated for his own needs, if his funds are limited.

(b) The RASHBA writes that if a person spends more than a third for beautifying a Mitzvah, Hashem will return to him that amount of money that he spent for the Mitzvah. The Rashba seems to be referring to the Gemara in Beitzah (16a) that writes that Hashem repays a person any money that is spent for Se'udas Shabbos and for teaching Torah to one's children. The Ritva there adds that this applies to money spent for any Mitzvah. Perhaps the Rashba learns that this applies only to money added to beautify a Mitzvah, and the Gemara cites the Se'udah of Shabbos and Talmud Torah as examples because a person often spends more than he needs to for such Mitzvos.

(c) RASHI does not seem to learn like either of these answers, and nor does TOSFOS who writes explicitly that a person "will receive Peros in this world" for spending more than a third, implying that he will receive *reward* and not just *compensation*. The Acharonim explain that Rashi and Tosfos hold that although a person does not receive reward for a Mitzvah in this world, he does receive reward for any efforts he expends in order to beautify a Mitzvah, or for the Zerizus that he expends in order to fulfill a Mitzvah. (See LIKUTEI REBBI TZADOK HA'KOHEN, end of SEFER SICHAS MALACHEI HA'SHARES, p. 102; KOL ELIYAHU #16.)

QUESTIONS: A Beraisa teaches that a person who gives a Shor or Bor to a Cheresh, Shoteh, or Katan to guard is Chayav for any damage that it does. If he gives an Esh to a Cheresh, Shoteh, or Katan, he is exempt from any damages that occur.

The Gemara asks what the difference is between a Shor or Bor and an Esh. Reish Lakish explains that the Beraisa is discussing a "Gacheles," an ember, when it refers to "Esh," and it is discussing a Shor that is tied up and a Bor that is covered. The reason why one is exempt for giving the Gacheles to a Cheresh, Shoteh, or Katan is because the Gacheles becomes extinguished by itself. RASHI explains that the Shor is prone to break out of the rope that is holding it, and the cover of the Bor is prone to collapse if left unattended. Since the Cheresh is not capable of watching it properly so that it does not cause damage, it is as if the owner left the Shor or Bor alone with no one to guard it, and therefore the owner is Chayav for any damage that it does. In contrast, when a Gacheles is left alone and unguarded, it will become extinguished before causing any damage, and therefore the owner is exempt.

Rebbi Yochanan argues with Reish Lakish and explains that the Esh for which one is exempt is a "Shalheves," a live flame, and the Shor and Bor are untied and uncovered, respectively. The reason why one is exempt for damage caused by the Shalheves is because "the Cheresh's actions were involved."

Rashi explains that the damage that the Shalheves caused was accomplished through the involvement of the Cheresh who brought the fire to the grain which it burned. We cannot obligate the owner of the Esh, because he did not cause the damage alone, but rather it was the Cheresh's contribution to the act that caused the damage. The Shor and Bor, on the other hand, which were left unguarded, caused damage without the involvement of the Cheresh.

There are a number of questions on this Sugya.

First, how could Rashi write, according to Reish Lakish, that if one leaves a Bor covered, that he is Chayav for any damage caused by the cover collapsing? The Mishnah (52a) says clearly that even if one digs a pit, it suffices to cover it with a strong cover, and one does not have to worry that it will cave in unexpectedly! (TOSFOS DH Shor)

Second, according to Reish Lakish, why does the Beraisa say that one is Chayav for leaving a Shor or Bor in the hands of a Cheresh, Shoteh, or Katan, while one is exempt for leaving an Esh with him? The Beraisa should say simply that one is Chayav for leaving a Shor or Bor *unguarded*, while he is exempt if he leaves an Esh (Gacheles) unguarded since it will become extinguished before it causes damage, as Rashi himself writes later (10b, DH Peshita)! (RABEINU PERETZ)

Third, the Gemara later (59b) -- in which Rebbi Yochanan originally makes his statement that one is exempt when he leaves even a Shalheves with a Cheresh -- says that Rebbi Yochanan agrees that one is Chayav for leaving an Esh in the hands of a Cheresh when he leaves a torch together with combustible material in the hands of the Cheresh, because in such a case it is clearly the owner's negligence (in leaving a flame and combustible material with the Cheresh) that causes the damage. In what way, though, is it more clear that his act caused the damage when he leaves combustible material with the fire? Even a flame, a Shalheves, without fuel can cause damage when left alone, as we see from the words of Reish Lakish, who says that only a Gacheles, and not a Shalheves, can be left unguarded without fear that it will cause damage.

If Rebbi Yochanan argues with Reish Lakish on this point and maintains that a Shalheves will also become extinguished by itself, then he should compare Shalheves, too, to a Bor that is covered and to a Shor that is tied up (just like Reish Lakish compares a Gacheles to such a Shor and Bor)! (TOSFOS DH ul'Rebbi Yochanan)

ANSWERS:

(a) According to Rashi, when Reish Lakish discusses a covered Bor and a bound Shor, he is referring to a Bor that is covered with a weak covering, and a Shor that is bound with a weak rope. The Mishnah exempts the owner only if he covers it with a proper, strong cover (RA'AVAD; see Tosfos).

Why, then, does Reish Lakish mention that the Bor is covered at all, if a Bor with an insufficient cover is the same as Bor with no cover? He should compare the Gacheles to an uncovered pit, since a weak cover does not accomplish anything! (RABEINU PERETZ)

The answer is that Reish Lakish wants the Shor and Bor to be similar to a Gacheles. Even though a Gacheles will soon become extinguished, it can still cause damage before it becomes extinguished. Nevertheless, since the time in which it can cause damage is limited, we do not expect it to actually cause damage during that time. In this sense, the Gacheles can be compared to a Bor that is covered with a weak cover. There is a chance that the Bor will cause damage because the cover might cave in, but its damage is not certain to occur, in contrast to an uncovered Bor. The Beraisa is distinguishing between a partial protection in *quality* (in the case of Shor and Bor) and a partial protection in *quantity* (in the case of Esh, where it is considered guarded from the time that it becomes extinguished, and thus is not expected to do damage). The partial protection of a Shor and Bor is not sufficient protection to exempt the owner, because the possibility that it will do damage (by breaking loose from its rope, or by its cover caving in) is continual and will not come to an end (like a Gacheles, which will eventually become extinguished).

The GILYON cited by the Shitah Mekubetzes answers the second question, regarding why the Beraisa needs to mention that the owner gave his item to a Cheresh, Shoteh, or Katan altogether. The Beraisa wants to teach that even when one gives the Gacheles to a Cheresh, Shoteh, or Katan, he is exempt because he did not need to expect that the Cheresh would take the fire and use it to cause damage. Although the Cheresh does not guard the flame, we do not expect that he will use it to cause damage. Therefore, if he does cause damage with it, the owner is exempt. (See also RASHI DH Me'amya.)

Regarding the third question, according to Rashi it seems that the difference between a Shalheves and a torch with combustible material is that even though the Shalheves, if left unguarded, will cause damage to anything that approaches it, nevertheless it cannot approach, on its own, property that is resting elsewhere. Therefore, if it causes damage to grain that is not adjacent to it, it can do so only through the help of the Cheresh. The owner is exempt, because he had no reason to suspect the Cheresh of bringing the fire close to someone else's property. On the other hand, the case in which one is Chayav when he leaves a torch with combustible material in the hands of the Cheresh refers to a case where is when the combustible material leads to the grain that was damaged. If the fire does damage, the owner is Chayav, even if the Cheresh brings it to the grain, since the fire would have spread there by itself. (See ME'IRI (59b) in the name of "Yesh Mefarshim.")

(Reish Lakish, on the other hand, holds that even a Shalheves can also damage property that is not near it, because flames tend to jump haphazardly. See RABEINU YEHONASAN MI'LUNIL, cited by the Shitah Mekubetzes (59b).)

(b) TOSFOS takes a different approach to the Sugya. Tosfos explains that the cover of the Bor is a strong cover. Had the Bor not been given over to a Cheresh to guard, the owner would be exempt. When the Bor is given over to a Cheresh, though, the owner is Chayav, because the Cheresh is likely to remove the cover of the pit and cause damage with the Bor, since the Bor was entrusted to him. Thus, and thus the owner was negligent in giving him the Bor to guard.

This answers the first two questions. Giving the Shor or Bor to a Cheresh is worse than leaving the Shor or Bor by itself.

Tosfos understands the difference between a Shalheves and a torch with combustible material to be that a Cheresh *is* able to guard a Shalheves, but he is *not* able to guard a torch with combustible material. The Cheresh can only provide preventative protection by ensuring that no new element should cause the fire to do damage, but rather the fire should remain as it is. The Cheresh cannot provide active protection by stopping a fire that is already spreading (or a Shor which is untied, or a Bor which is uncovered and which will cause damage unless one covers it). (TALMID RABEINU PERETZ cited by the Shitah Mekubetzes)

This explains why Rebbi Yochanan compares a Shalheves to an open Bor, since both are prone to do damage when not guarded. Nevertheless, one is exempt for damage caused by the Shalheves, because the Cheresh is able to guard it. Therefore, if any damage that the Cheresh causes was unexpected, and the owner is exempt from liability for the damage.

According to this approach, Rebbi Yochanan would certainly exempt the owner of a Shor that is tied and a Bor that is covered when he gives them to a Cheresh to watch. Rebbi Yochanan maintains that a Cheresh can even *guard* an easily-guarded item, and thus he is certainly not suspected of undoing the protection that is already in place (in contrast to the view of Reish Lakish).

The RASHBA offers a similar explanation for the Gemara. (However, it is possible that the Rashba exempts the owner of the Shalheves not because he may rely on the Cheresh to guard the flame, but because anytime the Cheresh involves himself in the damage that is caused, the owner is automatically exempt from liability.)