OUTLINES OF HALACHOS FROM THE DAF
Prepared by Rabbi P. Feldman of Kollel Iyun Hadaf, Yerushalayim daf@dafyomi.co.il http://www.dafyomi.co.il
1) MAY A DAMAGER GIVE METALTELIM IF HE HAS MONEY?
(a) Gemara
1. 7a (Abaye) Contradiction: "From the best of his
field and vineyard he will pay" teaches that only
Idis may be paid. A Beraisa learns from "he will
return" that Shavah Kesef (something worth money)
may be given, even bran!
2. Answer (Rav Papa): All Metaltelim are considered
Meitav. If they can't be sold here, they can be sold
elsewhere. Land cannot be sold elsewhere. Therefore,
one who pays with land must give Idis, so it will be
easy to sell.
3. 9a (Rav Huna): Damages are paid with money or Idis.
4. Question (Rav Nachman - Beraisa): "He will return"
teaches that (anything) worth money may be given,
even bran.
5. Answer: The Beraisa discusses when the damager has
no money or land. It teaches that he need not sell
his things in order to pay with money.
6. 10b - Question (Rav Kahana, to Rav): Without "the
carcass will be to him", could we really think that
the damager must keep the Neveilah?! A Beraisa
learns from "he will return" that any Shavah Kesef
may be given, even bran. The damager can pay with
any carcass if he wants, all the more so with the
victim's carcass!
7. 14b (Beraisa): 'Shavah Kesef' (in the Mishnah)
teaches that Beis Din collects only if the damager
has land.
8. (Rav Ashi): 'Shavah Kesef' connotes that is not
actual money. Everything except land is considered
money, for it can be taken elsewhere and sold.
9. Question (Rav Yehudah bar Chinena - Beraisa): "He
will return" includes anything worth money, even
bran (even if the damager has no land)!
10. Answer (Rav Huna brei d'Rav Yehoshua): We collect
from orphans only if they inherited land. (From the
damager himself, we collect from anything.)
(b) Rishonim
1. Rif (2a): All Metaltelim are considered Meitav, for
they can be sold elsewhere. A Beraisa learns from
"he will return" that any Shavah Kesef may be given,
even bran. Even though Rav Huna disagrees, we hold
like Rav Papa, who is Basra.
i. Nimukei Yosef: The Meforshim rule like Rav
Papa, that all Metaltelim are Meitav. The Ramah
says that only one without money may pay bran.
The same applies to a borrower or one who must
return money of a mistaken sale, who is like a
robber, who is one of the 24 Avos Nezikin. One
may give Metaltelim because they can be sold
anywhere. We seek to enable the victim to get
the money of his damage. Therefore, if the
damager has money, he must pay money. The same
applies to a creditor. A creditor collects only
Beinonis land lest he lend with intent to
collect Idis. This applies only to land, for a
lender is sure to collect it (even if the
borrower sells it). It does not apply to
Metaltelim and money, so a lender has the upper
hand regarding them.
ii. Question (Chidushei Anshei Shem 4): Rav Papa
says that one may give bran, i.e. even if he
has money!
iii. Shach (CM 419:3): The Ramah holds that money is
different (than other Metaltelim). However, if
so, we should need a verse to permit paying
with the carcass, even if the damager has
money!
2. Rosh (1:5): Rashi explains that Rav Huna teaches
that one with land or money may not pay with
Metaltelim. Also the Rif says that Rav Papa argues
with Rav Huna. R. Tam rules like Rav Huna. If he has
money or Meitav, he pays with it. If not, all
Metaltelim are Meitav. If R. Tam held that Rav Papa
argues with Rav Huna, he would rule like him, for he
is Basra. Rather, he holds that Rav Papa just
answered the contradiction. He explains the verses
simply; they discuss paying with Meitav or money.
Alternatively, Rav Papa argues with Rav Huna. Rav
Ashi (the Gemara) put Rav Huna's answer last, even
though Rav Huna preceded Rav Papa, to shows that the
Halachah follows Rav Huna. The Rif's opinion is
primary. Rav Kahana was a Talmid of Rava; he is
Basra, and he and Rava hold like Rav Papa. If he
held like Rav Huna, the verse must teach that he can
pay with the carcass even if he has money! The
primary text of Rav Huna says 'money or Meitav.' He
explains that the Mishnah requires Meitav, but money
is like Meitav.
i. Question (Shach CM 419:3): Rav Kahana was a
Talmid of Rav! Rav Papa was later than Rava and
Rav Kahana! Surely, Rav Papa argues with Rav
Huna. Rav Kahana holds that no verse is needed
to teach that he may pay with the carcass, even
if the damager has money!
ii. R. Akiva Eiger: There was another Rav Kahana in
the days of Rava. Surely he asked the question,
for above Rav Kahana learned from "Ed
ha'Tereifah"!
iii. Note: Perhaps the Shach held that the first Rav
Kahana asked the question, for in our text, Rav
Kahana asked Rav. (In the Rosh's text, he asked
Rava.)
3. Rambam (Hilchos Nizkei Mamon 8:9): Beis Din first
collects for the victim from the damager's
Metaltelim. If this does not suffice, the rest is
collected from his best land. As long as Metaltelim
are found, even bran, we do not take land.
i. (Gra CM 419:1): He holds that Rav Huna teaches
that the damager may give what he wants;
'money' includes Metaltelim. He and Rav Papa do
not argue.
4. Rosh (ibid.): If a borrower has Metaltelim and land,
he must give Metaltelim if the creditor wants. Since
he lent money, he collects whatever is closest to
money, i.e. Metaltelim. If they cannot be sold here,
they can be sold elsewhere. Even so, we evaluate
them only for what the lender can sell them for
immediately in his house, without need to go to
cities or markets. If not, people would be loathe to
lend.
i. Beis Yosef (CM 389 DH keshe'Ba'in...): The Tur
holds that the same applies to damages. Even
though these reasons (he lent money, and lest
people be loathe to lend) do not apply to
damages, Chachamim did not distinguish.
(c) Poskim
1. Shulchan Aruch (419:1): Beis Din first collects
Metaltelim for a victim of damage. As long as
Metaltelim are found, even bran, we do not take
land. Even if he has money, he may pay with bran,
for all Metaltelim are Meitav.
i. Gra (1,3): This is unlike R. Tam, who rules
like Rav Huna (that one must pay with money or
Meitav). We hold like Rav Papa (who allows
paying with bran). The Ramah holds that one who
has money may not give Metaltelim. The Rambam
holds that Rav Huna includes Metaltelim in
'money', and teaches that the damager may give
what he wants. He and Rav Papa do not argue.
ii. Shach (1): A victim has better collection power
than a creditor, who may demand Metaltelim. A
victim is worse only regarding money (the
damager may pay Metaltelim even if he has
money) because it says "Yashiv". It does not
say so regarding a creditor, so he must return
money, like he borrowed.
See also:
WHO DECIDES IF LAND OR METALTELIM WILL BE PAID? (Bava Kama 2)
WITH WHAT MAY A THIEF PAY? (Bava Kama 5)
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