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
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BAVA KAMA 28-29 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the ninth Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.
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1) ONE MAY TAKE THE LAW INTO HIS OWN HANDS
(a) Gemara
1. 27b (Rav Chisda) Question: David and Levi were
partners in a pit of water. Each day, one would
water his field from it. Once, Levi was using it on
David's day. David protested, to no avail. He hit
Levi with the handle of a shovel. How much must he
pay for this?
2. Answer (Rav Nachman): He can hit him 100 times, and
he is exempt! All agree that one may take the law
into one's own hands to avoid a loss.
3. (Rav Yehudah): One may not take the law into his own
hands;
4. (Rav Nachman): One may do so.
5. All permit when needed to avoid a loss. They argue
about when there is no loss. Rav Yehudah forbids,
for he can go to Beis Din. Rav Nachman permits.
Since he acts properly, he need not exert himself to
go to Beis Din.
6. Question (Beraisa): If Reuven's ox came upon Levi's
ox to kill it, and Levi removed his ox from
underneath, and Reuven's ox fell and died, Levi is
exempt.
i. Suggestion: The case is, Reuven's ox is an
established gorer. Levi would not have lost
money, for Reuven would have been liable to pay
full damage!
7. Answer: No, Reuven's ox is Tam, so Levi would have
received only half damage.
8. Question (Seifa): If Levi knocked Reuven's ox off
Levi's ox, and it died, Levi must pay. (If the ox is
Tam, why must Levi pay? He would have lost!)
9. Answer: Levi should have removed his ox without
knocking off Reuven's ox.
10. Question (Beraisa): If Reuven filled Shimon's
courtyard with jugs of wine and oil, Shimon may
break jugs on his way out and on his way in.
11. Answer (Rav Nachman bar Yitzchak): He may break jugs
on his way to Beis Din, and when he goes to obtain
proofs that he will need in Beis Din.
12. Question (Beraisa): "You will cut off her hand (of
one who grabbed a man by his private parts to save
her husband)" means that she must pay.
i. Suggestion: The case is, she had no other way
to save her husband.
13. Rejection: No, she could have saved in another way.
14. Bava Metzi'a 6a (Abaye): When two are holding a
Talis, they swear because we are concerned lest one
of them grabbed the Talis in order to collect an old
debt.
15. Question: If this is the concern, each should get
half without an oath!
16. Correction: Rather, perhaps one grabbed it to
collect a Safek old debt.
17. Question: If so, we should be concerned lest he
swear mi'Safek!
(b) Rishonim
1. Rif: In monetary laws, the Halachah follows Rav
Nachman, who says here that one may take the law
into his own hands.
i. Nimukei Yosef (DH Me'ah): We learn from here
that also a Shali'ach Beis Din may hit one who
does not comply, if necessary. Surely, one of
the parties has no greater rights than a
Shali'ach Beis Din!
ii. Nimukei Yosef (DH v'Ha): If he cannot prove
that it is his (and his opponent does not
admit), if he hit him he is liable.
iii. Nimukei Yosef (DH mid'Nokat): The Beraisa
discusses filling his Chatzer (or Reshus
ha'Rabim) with jugs. If there was room to walk,
one who broke them is liable. Reuven had no
right to put them in Shimon's Chatzer, and
Shimon may take them out, but he may not break
them.
iv. Nimukei Yosef (DH Lo): We learn from the woman
who saved her husband that even when there is a
loss, if one could have saved without damaging,
but he saved by damaging or embarrassing, he is
liable.
2. Rambam (Hilchos Sanhedrin 2:12): One may take the
law into his own hands if he has the power. Since he
acts according to Halachah, he need not toil to come
to Beis Din, even if he would not lose by doing so.
Therefore, if his opponent complained and brought
him to Beis Din and it is found that he did
properly, we do not undo what he did.
3. Rosh (3:3): If Reuven sought to steal Shimon's item
and Shimon hit him to stop him, or if Shimon saw his
item with Reuven and hit him until he let Shimon
have it, the Amora'im do not argue. If there is a
loss, e.g. perhaps the water in the pit will be
finished and the field will be ruined, or a woman
who has no other way to save her husband, one may
take the law into his own hands and he is exempt. He
is exempt for hitting the other person if he had no
other way to save his property. They argue about a
case when he could get his money through Beis Din,
and merely saves himself toil. Rav Yehudah holds
that one may not hit another to save himself toil.
Rav Nachman holds that since he can prove that he
acts properly, he may save even through hitting if
there is no other way. If he cannot prove that it is
his, he cannot say 'it is mine, and I hit to save my
money.' The Halachah follows Rav Nachman in monetary
laws. Also, we challenged Rav Yehudah and gave poor
answers.
i. Hagahos Ashri: If Reuven's ox came upon Levi's
ox to kill it, and Levi knocked Reuven's ox off
and it died, Levi must pay, even if it is Tam.
Levi should have removed his own ox, for it is
not so much harder than knocking off Reuven's
ox. If Reuven filled Reshus ha'Rabim or
Shimon's courtyard with jugs, Shimon may break
them. It is a toil to stack them; he need not
go around.
4. Rosh (Teshuvah 64:1): One may take the law into his
own hands only regarding a particular item that is
his, like Rabbeinu Meir explained. However, if one
seized property due to a claim of another debt, he
is not called a thief, like we say in Bava Metzi'a
(6a). If one grabbed Ploni's Talis because Ploni
owes him a loan, he is not suspected of stealing. If
he swore that the Talis is his, it is not a false
oath.
(c) Poskim
1. Shulchan Aruch (CM 4:1): One may take the law into
his own hands. If Shimon saw that Reuven has
Shimon's item that he stole, he may take it from
him. He may hit him until he lets Shimon have it
(Rema - if he cannot save any other way), even if
there is no loss if he would wait until he takes him
to Beis Din. This is if he can prove that he takes
according to Halachah.
i. SMA (2 and Shach 3): If he cannot prove that it
is his, he may not seize it in front of
witnesses. He may seize it not in front of
witnesses, and he will be believed in Beis Din
through a Migo (Teshuvas Rosh 64:1, 106:1).
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