BAVA BASRA 2-8 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the 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 Rav Weiner -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.






(Beraisa): If the wall between a vineyard and a grain field broke, we tell the owner to repair it. If it breaks again, we tell him to repair it. If he decided not to repair it, the grapes and grain become forbidden; and he pays for the grain.


Bava Kama 62a (Shmuel): (If we do not know how much Levi stole from David, it was enacted that David swears how much was taken and he collects.) Similarly, if one's stack was burned, he can swear what was inside and collect, according to R. Yehudah.


Question (Ameimar): Was a similar enactment made for a Moser (Ploni incited the kingdom to take Yakov's property)?


Surely, the opinion that exempts for Garmi (semi-direct ways of causing damage) exempts also this is. We ask according to the opinion that obligates for Garmi. Can Yakov swear what was taken, and collect?


(Rabah): If Reuven burned Shimon's loan document, he is exempt. He can say 'I burned a mere piece of paper!'


(Rav Dimi bar Chanina): R. Shimon and Chachamim argue about this. R. Shimon holds that Davar ha'Gorem l'Mamon (something without intrinsic value, but its loss causes a loss of money) is like money. He obligates for burning documents. Chachamim exempt, for Davar ha'Gorem l'Mamon is unlike money.


Question (Rav Huna brei d'Rav Yehoshua): R. Shimon said k'Mamon Dami for something that once had value, like stolen Chametz during Pesach. We never find that R. Shimon obligates for something that never had intrinsic value!


(Ameimar): The one who obligates for Garmi obligates the full value of the document. The opposing opinion obligates paying the value of the paper.


100a: Reish Lakish showed a coin to R. Elazar, and said 'I rely on you.'


R. Elazar: Do you expect me to pay if I am wrong? You yourself say that R. Meir obligates for Garmi (but the Halachah does not follow him)!


Reish Lakish: No, the Halachah follows R. Meirl


(Beraisa): If the wall between the vines and the grain broke, and Reuven decided not to fix it, this forbids the grain, and he is liable.


116b: A man was Moser the Reish Galusa. Rav Nachman obligated him. Rav Huna bar Chiya asked if this was letter of the law, or a fine.


Rav Nachman: Our Mishnah teaches this. If the land that Reuven stole was taken due to Reuven, he must give another field to Shimon. This is when Reuven showed it.


Rav Yosef (to Rav Huna): What difference does it make if it is letter of the law, or a fine?


Rav Huna: We may learn to other cases only if it is letter of the law.




Rambam (Hilchos Chovel u'Mazik 7:7): One who causes to harm to property pays full damage from his best property, like other damagers. Even though he did not do the final damage, since he is the first cause, he is liable.


Rambam (8:1): If one was Moser another's property, he must pay from his best property. If he died, we collect from his heirs, like other damages.


Teshuvos Maimoniyos (Nezikim 4): The distinctions given between Gerama and Garmi are difficult. The Ritzva says that Garmi is a fine, like the Yerushalmi. Any damage that would be common if not for the fine is Garmi.


Beis Yosef (DH u'Mah she'Chosav v'Ri): Similarly, the one who obligates for unnoticeable damage holds that this is a fine to deter people from doing so. Perhaps R. Meir obligates for Garmi b'Shogeg, just like he fines one who was Metamei or mixed Terumah with Chulin b'Shogeg.


Tosfos (54a DH Chamor): According to R. Yehudah, it was enacted that whose stack was burned can swear what was inside and collect (62a). Ameimar asked whether a similar enactment was made for a Moser, according to the opinion that obligates for Garmi. This shows that Garmi is mid'Rabanan. If it were mid'Oraisa, Moser would be no different than burning!


Rebuttal (Yam Shel Shlomo 9:26): Perhaps it is mid'Oraisa, but Chachamim enacted only for damaging the property itself. Also, Garmi is uncommon. The Ritzva says that Garmi is a fine, lest people damage this way, just like Chachamim decreed about unnoticeable damage. Perhaps R. Meir fines even b'Shogeg, like one who was Metamei or mixed Terumah with Chulin b'Shogeg. Also the Mordechai, from Maharam, says that Garmi is mid'Rabanan. The Ri disproved this; one who despaired of fixing his fence is liable, even without intent to damage. Also he loses (his grapes)!


Ramban (Kuntres d'Garmi DH umi'Shum): Some bring a proof from the Yerushalmi, which fines one who tore a document. However, the Bavli calls it Dina d'Garmi, i.e. it is not a fine. We would not fine the son of one who burned documents! R. Ila'a did not intend to damage when he ruled about a coin, but if he erred, he would have been liable. We fine only for Mezid!


Rebuttal (Shach CM 386:1): The Ramban says that perhaps the Yerushalmi exempts Garmi. This is wrong. Reish Lakish (Kil'ayim 31a) fines one who forbade through Kil'ayim, like R. Meir! Elsewhere, R. Yochanan says that it is a fine, for land cannot be stolen. The Rema (388:2) obligates a Moser's son only if Beis Din judged his father. Despair from fixing the fence is negligence. It is like intent to damage, like the Ramban says about one who erred about a coin (he should have learned before ruling)!


Yam Shel Shlomo (ibid.): One may rely on the Ramban, for the Rosh agreed with him. Also, we say that R. Meir Da'in (judges) Dina d'Garmi, not that he fines. Also, this is like we say about R. Noson, that the Halachah follows him because he descended to the depth of the Din.


Shach (ibid.): We do not say 'R. Meir obligates for causing damage', rather, he is Da'in Dina d'Garmi. This implies that it is not mid'Oraisa. Indeed, if it is a fine we do not fine the son! We exempt a Moser if he was forced. If Garmi were mid'Oraisa, he would be liable, like for all damages. The Ramban says that Chachamim were lenient about (damage through) speech, and did not obligate for Ones. Why should they exempt it? Why didn't Rav Nachman prove that Garmi is a fine from the exemption of Moser b'Ones? Perhaps he never heard the Beraisa. Or, one could reject the proof; perhaps the Tana exempts for Garmi (even without Ones); he teaches that he is liable even b'Ones if he himself gave over the money. This is why Rava needed to teach that he is liable without Ones (lest one explain that the Tana exempts for Garmi). We said (98b) that even R. Shimon, who holds that Davar ha'Gorem l'Mamon k'Mamon Dami, would exempt for a document, for it never had intrinsic value. Ameimar taught that the opinion that obligates for Garmi pays the full value of the document. If it were mid'Oraisa, what is his source? Perhaps R. Meir holds like R. Shimon, and exempts! It is difficult to say that Ameimar argues with what was said above. Also, if he argues it should have said 'Ameimar Omar (said)', and not 'Omar Ameimar.'




Shulchan Aruch (CM 386:1): We hold like R. Meir, who obligates for Garmi.


Shach (1): The Ramban elaborated about the differences between Gerama and Garmi, for he holds that it is mid'Oraisa. Really, it is mid'Rabanan; we obligate only what is common. The Tur and Shulchan Aruch hold that it is letter of the law. Most hold, like the Yerushalmi, that it is only a fine: Tosfos, the Mordechai, R. Avigdor, the Nimukei Yosef, Maharam and RI'az. Smag agrees, but he obligates a Moser's heirs, which connotes that it is mid'Oraisa (62a). The Terumas ha'Deshen was unsure. Even if most held like the Ramban, heirs could say 'we hold that those who say that it is only a fine.' The Rambam obligates one who was Shogeg, and heirs. If Garmi were mid'Oraisa, it would apply even if he did not touch what was damaged!


Shach (1): Rav Huna asked if Moser is liable letter of the law. Rav Nachman answered 'it is the law of our Mishnah.' Those who say that Garmi is a fine explain 'i.e., it is a fine.' The Magid Mishneh says that the Rambam holds that Moser is not a fine; Rav Hai Gaon, the Ramban and Rashba agree. The Rambam says that Rav Nachman did not prove this from our Mishnah. Perhaps it is a fine! This is correct. Rav Yosef asked 'what difference does it make if it was letter of the law, or a fine?' Had Rav Nachman answered that it is letter of the law, Rav Yosef would not have mentioned 'or a fine.'


Shach (1): The Ramban says that Garmi must be a fine, for we learn from it. His main proof is from Shmuel. The Halachah follows him in monetary laws, and Shmuel holds that a Mishnah (Gitin 52b) obligates for mixing another's wine with wine of idolatry, and also for mixing Terumah and Chulin, for we can not derive one fine from another. This is no proof. The Rambam (Hilchos Chovel 7:2,6) rules like Rav; I defended this in 385:1.


Gra (10): If Garmi were a fine, only judges with Semichah in Eretz Yisrael could collect it. However, Rafram and Rav Nachman enforced it! Really, it is not a fine. Even if it were, we collect it in Chutz la'Aretz, like common damage in which the victim loses money (Rashba 117a).

See also: