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BAVA KAMA 36-37 - 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 - 35 lines; b - 40 lines]

1a)[line 4]שמע מינהSHEMA MINA- we see from that [which the Mishnah states that "they are both obligated", which obviously refers to the two animals that may have caused the damage]

b)[line 4]שוורים תמים שהזיקוSHEVARIM TAMIM SHE'HIZIKU, RATZAH MI'ZEH GOVEH RATZAH MI'ZEH GOVEH- if two Tamim caused damage [in a case in which a) only one of the two did, but we are not sure which one it was (RASHI); b) witnesses testify that both animals contributed to the damage (TOSFOS DH Shema Mina)], one may collect from either one (and one may therefore collect the entire amount even if, for example, one is lost)

2)[line 6]במועדיןB'MU'ADIN- [a case] in which [both animals] are Mu'adim [and the obligation to pay is therefore not related to the value or presence of the animal ("Min ha'Aliyah")]

3)[line 10]סוף סוף דמי תורא מעליא בעי לשלומיSOF SOF, DEMEI TORA ME'ALYA BA'I LI'SHELUMEI!- ultimately, he must pay for the full value of an ox [whether it was his large ox or small ox that gored the animal of the Nizak]!

4a)[line 13]חייבים חייב גברא מיבעי ליה"CHAYAVIM"? CHAYAV GAVRA MIBA'I LEI!- "they are responsible"? The Mishnah should have written that the owner is responsible [since the obligation to pay is not related to the value or presence of a Mu'ad]!

b)[line 13]ותו מאי שניהםV'SU, MAI "SHENEIHEM"?- and furthermore, what is the reference to "both of them"? [There is only one owner!]

5)[line 15]שותפין נינהוSHUTFIN NINHU- [the owner of the ox that attacked and the owner of the ox that was gored] are partners [in the ox that attacked]

6)[line 15]דאיתנהו לתרוייהוISNEHU L'TARVAIHU- both [oxen that may have attacked] are present (and this is the implication of "Sheneihem Chayavim" in our Mishnah)

7)[line 16]דלא מצי מדחי ליהLO MATZI MADCHI LEI- [the Mazik] cannot forestall [the Nizak by claiming that he may not have the animal that caused the damage]

8a)[line 17]מצי אמר ליהMATZI AMAR LEI- [the Mazik] is able to say to [the Nizak]

b)[line 17]זיל אייתי ראיה דהאי תורא אזקך ואשלם לךZIL AISI RE'AYA D'HAI TORA AZKACH VA'ASHALEM LACH- go and bring a proof that it was this [remaining] ox that damaged you[rs] and I will pay you. RASHI explains that according to Rebbi Yishmael, even in this case the Mazik must pay the Nizak since he owes him money as opposed to a share in the Shor ha'Mazik. TOSFOS DH v'Rebbi maintain that Rebbi Yishmael would agree that in this case the Mazik is exempt, but that this is obvious. According to Rebbi Akiva, however, one might have thought that since the Nizak is a partner with the Mazik, he owns one of the two animals and the Mazik the other. If this had been true, then the Nizak would have been equally able to claim that the Mazik must bring proof that it was not his animal that was lost.

PEREK #4 SHOR SHE'NAGACH ARBA'AH VA'CHAMISHAH

9)[line 20]שור שנגח ארבעה וחמשה שווריםSHOR SHE'NAGACH ARBA'AH VA'CHAMISHAH SHEVARIM- if an ox gored four or five oxen [and yet remained a Tam, since in between these episodes it refrained from goring other oxen even when presented with an opportunity to do so (see Mishnah and Gemara to Daf 37)]

10)[line 21]לאחרון שבהםACHARON SHEBA'HEM- the last of [the Nizakim]. The opinion of Rebbi Meir is explained fully in the Gemara.

11)[line 22]מותרMOSAR- something remaining [after the half-damage has been paid]

12)[line 22]לשלפניוSHE'LEFANAV- [the Nizak] before him

13)[line 23]והאחרון אחרון נשכרHA'ACHARON ACHARON NISKAR- [the Nizakim] gain [reimbursement] in reverse order

14)[line 25]ואין הנבלה יפה כלוםEIN HA'NEVEILAH YAFEH KLUM- the carcass is worthless

15)[line 25]זה נוטל מנה וזה נוטל מנהZEH NOTEL MANEH V'ZEH NOTEL MANEH- [the Mazik] takes [a share of the ox worth] one hundred Zuz and [the Nizak] takes [a share of the ox worth] one hundred Zuz

16)[line 27]האחרון נוטל מנהHA'ACHARON NOTEL MANEH- the latest [Nizak] takes [a share of the ox worth] one hundred Zuz [since each of the two previous owners must give up Chatzi Nezek, which amounts to fifty Zuz each]

17)[line 30]דינר זהבDINAR ZAHAV- a golden Dinar [worth twenty-five Zuz]

18)[line 31]מתניתין מניMASNISIN MANI?- according to who[se view] does [the opinion of Rebbi Meir in] our Mishnah follow?

19a)[line 31]כר' ישמעאלK'REBBI YISHMAEL- according to the opinion of Rebbi Yishmael [who maintains that the Mazik owes the Nizak money as opposed to a share of his animal]

b)[line 32]כר' עקיבאK'REBBI AKIVA- according to the opinion of Rebbi Akiva [who maintains that the Mazik owes the Nizak a share of his animal]

36b----------------------------------------36b

20)[line 1]יחזיר לשלפניו לכולם מבעי ליה[YACHZIR] L'CHULAM MIBA'I LEI!- [Rebbi Meir] should have ruled that [the remainder] returns to all of [the previous Mazikim, as Rebbi Shimon does]!

21)[line 4]שתפסו ניזק לגבות הימנוTAFSO NIZAK LI'GVOS HEIMENU- the Nizak seized [the animal] in order to collect from it [and prevent its owner from hiding it, slaughtering it, etc.]

22)[line 5]כשומר שכרSHOMER SACHAR (ARBA'AH SHOMRIM)

(a)There are "Arba'ah Shomrim" ("Four Custodians") — four classes of those who guard the item of another. Their level of responsibility for the object they guard varies according to what, if anything, they receive from the agreement.

(b)There are four classifications of damages that can occur to an item. These are:

1.PESHI'AH - damage incurred through negligence

2.GENEIVAH O AVEIDAH - theft or loss

3.ONES - damage incurred through an unavoidable accident

4.MESAH MACHMAS MELACHAH - death as a result of normal, expected use

(c)The four Shomrim and the degree of responsibility for which they are held accountable are:

1.SHOMER CHINAM - one who guards an item and receives no compensation. He is liable to pay for damages only in the case of Peshi'ah. He is exempt in the case of Geneivah or Aveidah, and certainly in that of Ones. A Shomer Chinam has no permission to use the item that he is guarding; if he does so, he is responsible even for Onsim.

2.SHO'EL - one who borrows an item with intent to utilize it. He is liable to pay for damages in cases of Peshi'ah, Geneivah or Aveidah, and Ones. He is exempt only in a case of Mesah Machmas Melachah, or if the damage was incurred while the owner of the item was working for the borrower ("Be'alav Imo").

3.NOSEI SACHAR or SHOMER SACHAR - one who receives compensation for guarding an item. He is liable to pay for damages in cases of Peshi'ah and Geneivah or Aveidah, but not in a case of Ones. A Shomer Sachar has no permission to use the item that he is guarding; if he does so, he is responsible even for Onsim.

4.SOCHER - one who rents an item. Rebbi Meir rules that his level of responsibility is identical to that of a Shomer Chinam. Rebbi Yehudah maintains that his level is equal to that of a Shomer Sachar.

(d)When a Shomer claims that he is exempt from paying damages since they occurred in a manner for which he is not accountable, he is not exempt until he supports his claim with an oath. A Shomer Chinam, for example, may swear that he was not negligent; a Shomer Sachar may swear that the item was Ne'enas; and a Sho'el may swear that the item was damaged in the normal manner of usage. In addition, a Shomer Chinam and a Shomer Sachar must swear that they did not use that which they were guarding (Shemos 22:6-14; Bava Metzia 93a).

(e)The Nizak in the case of our Gemara becomes a Shomer Sachar when he seizes the animal. He benefits from his custodianship, since he thus prevents the Mazik from acting in a way that would prevent him from collecting his due. Our Mishnah discusses a case in which the animal then went on to damage another animal, in which case the Shomer Sachar is held responsible for not properly guarding the animal under his jurisdiction.

23)[line 7]יחזיר לבעלים מבעי ליהYACHZIR L'VE'ALIM MIBA'I LEI- [Rebbi Meir] should have ruled that [the remainder] returns to the owner [since he is not responsible for the latest damage caused by his animal]!

24)[line 8]אם יש בו מותר בנזקיוIM YESH BO MOSAR B'NIZAKAV- if there is a remainder [from what is owed to he who currently is responsible for the ox] after the damage [caused to the latest Nizak is paid for]

25)[line 9]משום פשיעת שומרין נגעו בהMISHUM PESHI'AS SHOMRIN NAG'U BAH- it is due to the negligence of [the respective Nizakim who became] custodians that [Rebbi Meir in our Mishnah] rules as he does

26)[line 18]אתאןASA'AN- [this ruling] brings us

27)[line 20]אמריAMREI- [the scholars in the Beis ha'Midrash discussing this Mishnah] said

28)[line 20]איןIN- indeed [the Reisha follows the opinion of Rebbi Yishmael and the Seifa that of Rebbi Akiva]

29a)[line 21]שיננאSHINENA!- sharp one! alt. well-learned one!

b)[line 21]שבוק מתניתין ותא בתראיSHEVOK MASNISIN V'SA BASRAI- forego [the attempt to ascribe] our Mishnah [to one Tana] and follow my [explanation]

30)[line 24]התוקע לחבירו נותן לו סלעHA'TOKE'A L'CHAVEIRO NOSEN LO SELA (CHOVEL B'CHAVEIRO)

(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)The Beraisa cited in our Gemara discusses one who is Toke'a ba'Chaveiro. This refers either to a) one who hits another next to his ear, or b) one who yells into the ear of another. Aside from Nezek, Tza'ar, Ripuy, and Sheves (when and if they apply), one must pay for Boshes — the embarrassment caused by the damaging act. How much one is responsible for Boshes in this case is the subject of a Tana'ic disagreement. (See TOSFOS DH Nosen for two differing explanations of how this disagreement is not as far-reaching as it first seems to be.)

31a)[line 28]סלע צוריSELA TZURI- a Sela in circulation in Tzur (Tyre). A Sela Tzuri is worth four Zuz. The denominations in Tzur were identical to those of Kesef Medinah, but were eight times their value.

b)[line 28]סלע מדינהSELA MEDINAH- a Sela of provincial coinage. A Sela Medinah is worth half a Zuz. Provincial denominations were identical to those in circulation in Tzur, but were one eighth of their value.

32)[line 29]תניתוהTENISUHA- we learned [the answer to your question] in a Mishnah

33)[line 30]תני תנאTANI TANA- a Tana [generally] teaches in a Mishnah

34)[line 30]נפלוג ונתני עד תריסר וסלעNIFLOG V'NISNI AD TEREISAR V'SELA!- let [the Tana of our Mishnah] further divide and teach [a case in which the ox gores another time, in which case the last Nizak would receive 100 Zuz, the previous Nizak would receive 50 Zuz, the one before that 25 Zuz, and the original Mazik and Nizak each] twelve [Zuz] and a Sela [Medinah]!

35)[line 31]תנא כי רוכלא ליתני וליזילTANA KI RUCHLA LISNI V'LEIZIL?- must the Tana continue to teach [every possible case] as a traveling merchant [a) counts through his wares one by one so as to display them (RASHI to Nazir 21a); b) counts his money (RASHI to Erchin 23b)]?

36)[line 32]מאי הוי עלהMAI HAVEI ALAH?- what is the final ruling [regarding whether the Sela that one owes for Boshes according to the Tana Kama is a Sela Tzuri or a Sela Medinah]?

37)[line 32]פשטוהPASHTUHA- they answered it

38)[line 34]דבריהםDIVREIHEM- the words of the Rabanan [cited in Mishnayos]

39)[line 35]ההוא גבראHA'HU GAVRA- that man [who had been victimized]

40)[line 35]הואיל ופלגא דזוזא הוא, לא בעינאHO'IL U'FALGA D'ZUZA HU, LO BA'INA- since [the payment of my Boshes] is [only] half a Zuz, I do not want it

41)[line 36]נתביהNEISVEI- give it

42)[line 36]הדרHADAR- subsequently

43)[line 37]ניהליNIHALI- to me

44)[line 37]איזיל ואברי ביה נפשאיEIZIL V'AVRI BEI NAFSHA'I- I will go and [use it to purchase medicinal items with which to] heal myself

45)[line 39]אנן יד עניים אנןANAN YAD ANIYIM ANAN- we (i.e., Beis Din) act as the hand of the poor (as Rav Yosef was a treasurer of Tzedakah; see 93a)

46)[last line]יתומים אינן צריכין פרוזבולYESOMIM EINAN TZERICHIN PRUZBUL - orphans do not require a Pruzbul (a document that enables one to collect loans after Shevi'is) (PRUZBUL)

(a)All outstanding loans become null and void upon the onset of the Shemitah year (see Background to Gitin 53:39) (Devarim 15:2). This is known as Hashmatas Kesafim, and it is in effect mid'Oraisa only when the Yovel year (see Background to Gitin 48:1) is observed. It applies mid'Rabanan both in and out of Eretz Yisrael in all years, however.

(b)Most Rishonim rule that the loans become void at the end of the Shemitah year, on the last day of the month of Elul (e.g., RAMBAM Hilchos Shemitah v'Yovel 9:1-4).

(c)Hillel ha'Zaken saw that in his generation, people were reluctant to loan money before Shemitah for fear that they would lose their money. Such inaction constitutes a transgression of a negative prohibition (Devarim 15:9). Hillel therefore instituted a "Pruzbul". Taking its name from the Greek "Pruz" (benefit) and "Buli" (the wealthy), this document effectively enables one to collect his loans even after Shemitah has passed (see Mishnayos Shevi'is 10:3 and 6).

(d)A Pruzbul document must be filed with Beis Din before the end of Shemitah. In it, one states that all of his loans are handed over to Beis Din. (Shevi'is 10:4). Since it is Beis Din that has control of the loans, the original lender does not transgress when he collects his loans. Rather, it is as if Beis Din has collected the loans and then given them over to the lender.

(e)One may only hand his loans over to Beis Din if the borrower owns land. This is because it is unusual for one to loan money to someone who does not own land to back up the loan, and the Rabanan did not institute a Pruzbul for unusual loans (RASHI to Gitin 37a DH Ela and to Bava Basra 27a DH Pruzbul).

(f)In many places, RASHI explains that the mechanism through which a Pruzbul works is that Beis Din utilize their power of "Hefker Beis Din Hefker" (the authority of Beis Din to declare any property ownerless) to "collect" the loans immediately (RASHI to Kesuvos 89a DH Pruzbul, to Gitin 32b DH Mosrani, and to Bava Basra 27a DH Pruzbul).

(g)An alternate understanding of the mechanism through which a Pruzbul works is that since no one may stop Beis Din from collecting the loans whenever they wish to, the loans are Halachically considered collected immediately. This is also why the borrower must own land. Land is always available to be collected from. Movable objects may be hidden from Beis Din, and they are therefore not useful as the basis for a Pruzbul (see TOSFOS to ibid., RASHBAM to Bava Basra 65b, and RASHI to Bava Kama 12a DH Chal).

(h)It is not necessary for orphans to hand over their loans to Beis Din through a Pruzbul, since Beis Din is already looking out for their welfare and is in charge of their estate.

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