BAVA KAMA 21-25 - 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.

[a - 21 lines; b - 48 lines]

b)[line 1]וסיים בנזקי גופוV'SIYEM B'NIZKEI GUFO- and it concludes with [a reference to] damage directly caused by he himself (see Background to 22:49:b)

1)[line 3]טמון באש דפטר רחמנא היכי משכחת לה?TAMUN BA'ESH D'PATAR RACHMANA HEICHI MISHKACHAS LAH?- how is it possible to find an application of that which the Torah exempts one from paying when his fire consumes that which is covered or hidden inside another item (i.e., a haystack; see 60a)? [Since it is as if he who ignited the fire shot an arrow and directly caused the damage, it is unreasonable to apply special exemptions!] (see also Insights #'s 1 and 2)

2a)[line 4]שנפלה דליקה לאותו חצרNAFLAH DELEIKAH L'OSO CHATZER- the fire began in that courtyard [that belonged to he who ignited it]

b)[line 4]ונפלה גדר שלא מחמת דליקהV'NAFLAH GADER SHE'LO MACHMAS HA'DELEIKAH- and the fence [surrounding the courtyard, which would have contained the fire] fell as a result of something other than the fire

3)[line 7]כלו ליה חציוKALU LEI CHITZAV- lit. his arrows have ended; i.e., that which the fire has spread cannot be attributed to his original ignition

4)[line 7]גלויGALUY- that which is out in the open [and not Tamun]

5)[line 9]שהיה לו לגודרה ולא גדרהHAYAH LO L'GADRAH V'LO GADRAH- he ought to (i.e., he had time to) have fenced in [the fire before it spread] and he did not do so

6)[line 10]ולא טפח באפיהLO TAFACH B'APEI- he did not close [the door] in front of it [properly such that it was unable to escape]

7)[line 13]לחייבו בארבעה דבריםL'CHAIVO B'ARBA'AH DEVARIM (CHOVEL B'CHAVEIRO - Restitution Made by One who Physically Damages Another)

(a)One who wounds his fellow Jew is obligated in up to five distinct payments. These are:

1.NEZEK (Damages) - He must pay for the depreciation of his victim. This is assessed by determining the difference between his value on the slave market before he was damaged and his current slave market value.

2.TZA'AR (Pain) - He must pay for the pain caused to his victim. This is assessed as the amount the victim would have been willing to pay in order to forego the pain (Bava Kama 85a). Therefore, this payment depends upon both the financial situation and threshold for pain of the victim (RAMBAM Hilchos Chovel u'Mazik 2:9).

3.RIPUY (Medical Expenses) - He must foot all medical bills until his victim is completely healed of his wounds.

4.SHEVES (Unemployment) - He must reimburse his victim for the time period during which he is unable to earn an income. Sheves is evaluated as the minimum wage - defined as that paid to one who guards a field from birds - no matter the actual earning power of the victim (Mishnah, Bava Kama 83b).

5.BOSHES (Shame) - The degree of Boshes depends upon the social status of he who caused the embarrassment and he who was embarrassed. The shame of a distinguished individual is greater than that of a less distinguished individual, and the shame caused by a less distinguished individual is greater than that caused by a distinguished individual (ibid.). (Some Rishonim maintain that the shame caused by an average individual is greater than the shame cause by either a more or less dignified individual - RASHI to Kesuvos 40a, RAN.) Due to its nature, only one who intentionally damaged another is obligated in Boshes.

(b)Not every one of these five payments applies to every case. It is possible to become obligated in only one or any other combination of these payments.

(c)One is responsible only for the Nezek caused by his animal. A person is therefore responsible for four more categories of damage when he himself causes damage - namely, Tza'ar, Ripuy, Sheves, and Boshes - than when his animal causes damage (26a).

(d)Since Rebbi Yochanan maintains that damage caused by one's fire is considered as if he himself directly caused it, he will be responsible for Nezek, Tza'ar, Ripuy, and Sheves when applicable if his fire harmed a person. Boshes will never apply since he did not intend for his fire to cause the damage. According to Reish Lakish, however, since one's fire is akin to his possession that caused damage, he who ignited the fire will never be responsible for more than Nezek. See Insights #'s 1 and 2 for reasons why our Gemara seems to ignore other, more obvious differences between the opinions of Rebbi Yochanan and Reish Lakish.

8)[line 16]מאי בעי כלב התם?MAI BA'I KELEV HASAM?- what is the dog doing there? [It should have been unable to get to the properly guarded coal!]

9)[line 16]בשחתרBESHE'CHATAR- (the Gemara answers) [our Mishnah is discussing a case] in which [the dog] dug [under the door]

10)[line 18]סתם דלתות חתורות הן אצל כלבSTAM DELASOS CHATUROS HEN ETZEL KELEV- it is normal for a dog to dig under doors [since otherwise the action would be one of Keren and the owner of the dog would be responsible for no more than half-damages]. Although the action of the dog is not unusual, the owner of the coal is considered to have properly guarded it since people do not normally take preventative measures beyond locking their door (TOSFOS DH beshe'Shimer).

11)[line 19]בגדיש דעלמאB'GADISH D'ALMA- on a Gadish belonging to a third party [which burned down as a result]

12)[line 20]"וּבִעֵר בִּשְׂדֵה אַחֵר--מֵיטַב שָׂדֵהוּ וּמֵיטַב כַּרְמוֹ, יְשַׁלֵּם."... U'VI'ER BI'SDEI ACHER ..."- "... or it shall graze in the field of another, [he shall make restitution with the best of his field or the best of his vineyard]" (Shemos 22:4). This verse implies that one is responsible to pay for that which his animal ate only when it grazed in the domain of the owner of the fodder.

13)[last line]תפשוט דפי פרה כחצר הניזק דמיTIFSHOT D'FI PARAH K'CHATZER HA'NIZAK DAMI- let us determine that the mouth of a cow [that is grazing in the field of another] is considered as the domain of he who is suffering the loss [and not the domain of the owner of the cow]


14)[line 2]לימא ליה, "מאי בעי רפתך בפומא דכלבאי?"LEIMA LEI, "MAI BA'I RIFTECHA B'FUMA D'CHALBA'I?"- let [the Mazik] say to [the Nizak], "What is your bread (i.e., the Chararah) doing in the mouth of my dog?" (see Insights)

15)[line 6]שנתחככה בכותל להנאתהNISCHACHECHAH B'KOSEL L'HANA'ASAH- [the animal] rubbed against a wall in a manner beneficial to it (e.g., to scratch an itch)

16)[line 7]טנפה פירות להנאתהTINFAH PEIROS L'HANA'ASAH- [the animal] soiled produce in a manner beneficial to it [such as a) by rolling upon them (RASHI); b) by defecating upon them (RABEINU CHANANEL to 3a)] (see RASHI to 18b DH d'Dachik)

17a)[line 8]והא בעינא, "כַּאֲשֶׁר יְבַעֵר הַגָּלָל עַד-תֻּמּוֹ"HA BA'INA, "KA'ASHER YEVA'ER HA'GALAL AD TUMO"- [How could these cases be those to which the verse refers to? In order for damage to qualify as Shen] we require "[... and I will remove the remnant of the house of Yerav'am] as [one] removes dung until it is eliminated" (Melachim I 14:10). This verse refers to teeth since a) "Galal" ("dung") is related to "Meguleh" ("revealed"), hinting to teeth which are sometimes revealed and sometimes hidden (RASHI to 2b, first explanation); b) teeth "destroy" ("Bi'ur") food in the first stage of its conversion into dung (RASHI to 2b, second explanation); c) "Galal" ("dung") is related to "Gelal" ("white marble"; e.g., Ezra 6:4). This hints to teeth, which resemble white marble (RABEINU CHANANEL, cited by TOSFOS to 2b DH Ka'asher)

b)[line 9]וליכא!V'LEIKA!- and [in these cases the wall or the produce] are not [fully destroyed]!

18)[line 9]דשף צלמיD'SHAF TZALMEI- [the case of the animal that rubbed against the wall is one] in which it [completely] rubbed out a form [carved upon the stone]

19)[line 10]דפסעי פסועיD'FAS'EI PESU'EI- [the case of the animal that soiled produce is one] in which a) it flattened [the produce such that it became irretrievable]; b) it spilled liquid [which was thereby ruined]

20)[line 10]שיסה בו את הכלבSHISAH BO ES HA'KELEV- if one incited a dog [belonging to another] against a third party

21)[line 15]דאפקיה לניביה וסרטיהAFKEI L'NIVEI V'SARTEI- [the inciter] bared its teeth and scratched him [such that no part of the victim ever entered the airspace of the dog's mouth]

22)[line 15]השיך בוHESHICH BO- if one [fatally] attacked another with the [venomous] fangs of a live snake

23)[line 17]כשתימצי לומרKESHE'TIMTZI LOMAR- lit. when you find to say; i.e., it is reasonable to explain

24)[line 18]ארס נחש בין שיניו הוא עומדERES NACHASH BEIN SHINAV HU OMED- lit. the venom of a snake stands between its teeth; i.e., a snake releases its venom involuntarily

25a)[line 19](מכיש) [משיך] בסייף(MAKISH) [MESHICH] B'SAYIF (MISOS BEIS DIN - The Death Penalties Administered by Beis Din)

(a)One who transgresses certain sins, after receiving a proper warning and in front of two witnesses, receives the death penalty from Beis Din. The members of Beis Din fulfill a positive commandment when they administer this punishment to one deserving of it, as the Torah states, "And if a man has committed a sin punishable by the death penalty, he should be put to death ..." (Devarim 21:22). The third-most stringent of these is Hereg (death), also known as Sayif (sword).

(b)One who is convicted of an Aveirah punishable by death by the sword has his head severed in Beis Din by the witnesses to his crime (Sefer ha'Chinuch #50). Sins for which Hereg is administered include the worship of Avodah Zarah along with other inhabitants of an Ir ha'Nidachas, and murder (Sanhedrin 76b).

(c)Beis Din are strongly encouraged to act leniently and find a loophole so as not to administer the death penalty (Devarim 13:15). A Beis Din that puts a sinner to death as often as once every seven years is considered a murderous Beis Din. According to Rebbi Elazar ben Azaryah, this applies to a Beis Din that puts a sinner to death as often as once in seventy years (Mishnah, Makos 7a).

b)[line 19]ונחש פטורV'NACHASH PATUR- and the snake is exempt [from the death penalty; see below, entry #27]

26)[line 20]ארס נחש מעצמו מקיאERES NACHASH ME'ATZMO MEKI- a snake releases its venom of its own volition

27)[line 21]נחש בסקילהNACHASH BI'SEKILAH (SHOR HA'NISKAL - A Stoned Ox)

(a)The term "Shor ha'Niskal" - lit. an ox that is stoned - may refer to any animal or bird that is determined by Beis Din to deserve stoning. The owner of a Shor ha'Niskal may not receive any benefit from his animal once the death sentence has been issued.

(b)There are three categories of Shor ha'Niskal:

1.An animal that killed a person (Shemos 21:28-31; Sanhedrin 2a);

2.An animal that had relations with a human (Vayikra 20:15-16; Sanhedrin 2a). This includes both a Rove'a (male animal) and a Nirva (female animal). Such animals are put to death for two reasons: so that others not sin with them in a similar manner, and so as to avoid disgracing previous sinners by reminding all who see them of the sin that had been committed (Sanhedrin 54a);

3.When the Torah was given, Har Sinai was declared off-limits not only to all people other than Moshe Rabeinu, but even to animals and birds. Any animal or bird that stepped foot on the mountain was to be stoned (Shemos 19:13; Sanhedrin 15b). This Halachah, of course, applied only during that one period in history.

28)[line 23]חיוואיCHIVA'I- my snake

29)[line 23]לענין קטלא לא אמרינןL'INYAN KETALA LO AMRINAN- regarding [whether or not an animal is put to] death [for killing a person] we do not say ["What was he doing in the mouth of my animal?" to exempt it even if Pi Parah is k'Chatzer ha'Mazik]

30)[line 24]ומנא תימרא?U'MENA TEIMRA?- and how do we know to say [that an animal is put to death in such a case]?

31)[line 26]הכופרKOFER - Redemption Paid by one whose Animal Killed Another

(a)An animal that kills a person is put to death by stoning. The owner of the animal is not obligated in any other form of restitution, but he may not receive any benefit from his animal once the death sentence has been issued (Shemos 21:28; 41a).

(b)If the animal had killed before, however, and its owner had been informed and duly warned to guard his animal after each time, then the ox is termed a Mu'ad. If a Mu'ad kills a person, then his owner is liable to Misah b'Yedei Shamayim (death delivered through natural means; see Background to Yevamos 3:27). He may, however, redeem himself by paying "Kofer" to the children or heirs of the dead man (Shemos 21:29-30). The amount paid as Kofer is either his own value or the value of the dead man, depending upon the various opinions of the Tana'im (Makos 2b). If a Mu'ad kills a Nochri slave, then the Kofer is set by the Torah at thirty Sela'im, and it is paid to the slave's owner (Shemos 21:32).

(c)The Tana'im disagree as to how many times an animal must kill before it is termed a Mu'ad. Rebbi is of the opinion that it is so after it has killed twice, whereas Raban Shimon Ben Gamliel maintains that it becomes a Mu'ad only after it has killed three times (see, for example, Yevamos 64b).

32)[line 30]הנהו עיזי דבי תרבוHANHU IZEI D'VEI TARBU- there were goats belonging to the house of the family of Tarbu

33)[line 30]דהוו מפסדיHAVU MAFSEDEI LEI- they were causing him a loss [by grazing upon the produce growing in his fields]

34)[line 32]זיל אימא להו למרייהו דליצנעינהוZIL EIMA LEHU L'MARAIHU D'LITZNE'INHU- go tell their owners to restrain (lit. to hide) them

35)[line 33]לגדור מר גדירא בארעיה!LI'GDOR MAR GEDEIRA B'AR'EI!- let Mar (a third-person term of respect, here used to refer to Rav Yosef) build a fence around his land [to keep the goats out]! TOSFOS DH Yachlei maintains that the Halachah certainly was that the owners of the goats were required to restrain their animals; Abaye made his claim since he wished to avoid a confrontation.

36)[line 33]ואי גדרV'IY GADAR- and if [it were true that one is not required to restrain his animals but rather that the owner of the field is required] to build a fence [to keep them out]

37)[line 34]כשחתרהKESHE'CHATRAH- [a case] in which [the animal] dug [under the fence]

38)[line 35]דנפיל גודא בליליאNAFIL GUDA B'LEILYA- the fence fell in the night [in which case the owner of the fence was unaware that he needed to rebuild it]

39)[line 35]מכריזMACHRIZ- announced

40)[line 36]דסלקין לעילא ודנחתין לתחתאהD'SALKIN L'EILA UD'NACHASIN L'SACHTA'AH- those who go up [from Bavel to Eretz Yisrael] and those who go down [from Eretz Yisrael to Bavel should be aware of the following Halachah]

41)[line 37]עיזי דשוקאIZEI D'SHUKA- goats designated for slaughter on the upcoming market day

42)[line 37]דמפסדיD'MAFSEDEI- that cause a loss [to others by consuming their produce - even that in the public domain]

43)[line 37]מתרינן במרייהו תרי ותלתא זמניןMASRINAN B'MARAIHU TREI U'TELASA ZIMNIN- we warn their owners two or three times [to restrain their animals]

44)[line 38]אי ציית, צייתIY TZAYIS, TZAYIS- if they listen, then fine

45)[line 39]תיב אמסחתא וקבל זוזךTIV A'MASACHTA V'KABEL ZUZACH- go to the butcher's market and receive your money; i.e., since they are to be slaughtered, the victim may demand that they be slaughtered even before the market day, even though this causes their owners to suffer a loss

46)[line 41]משיחזור בוMISHE'YACHZOR BO- when it retracts [its earlier behavior by ignoring an opportunity to gore]

47)[line 43]שלשה פעמיםSHELOSHAH PE'AMIM- three times [even if they all occur on one day]

48)[line 44]ממשמשין בוMEMASHMESHIN BO- touching [and thereby provoking] it

49)[line 45]"[אוֹ נוֹדַע כִּי שׁוֹר נַגָּח הוּא] מִתְּמוֹל שִׁלְשֹׁם וְלֹא יִשְׁמְרֶנּוּ בְּעָלָיו ...""[O NODA KI SHOR NAGACH HU] MI'TEMOL SHILSHOM V'LO YISHMERENU BE'ALAV ..."- "[But if it is known that the ox was one accustomed to goring] from the day before and the day before that and its owner has not guarded it ..." (Shemos 21:36). this verse refers to Mu'ad.

50)[line 47]אתאן לנגיחה רביעיתASA'AN L'NEGICHAH REVI'IS- this brings us to the fourth goring [and its owner is therefore not responsible to pay full damages until that time]

51)[last line]"ולא ישמרנו" האידנא, חייב"V'LO YISHMERENU" HA'IDNA, CHAYAV- "and he has not guarded it" this [third] time, he is responsible [to pay full damages for a) that third goring (RASHI); b) the following fourth goring. The only difference between Abaye and Rava is how to determine the Halachah, not what the Halachah actually is. (TOSFOS DH v'Lo)]