BAVA KAMA 39 - Dedicated in memory of Max (Meir Menachem ben Shlomo ha'Levi) Turkel, by his children Eddie and Lawrence and his wife Jean Turkel/Rafalowicz. Max was a warm and loving husband and father and is missed dearly by his family and friends. His Yahrzeit is 5 Teves.

[a - 35 lines; b - 52 lines]

1)[line 1]ונתביה לענייםV'NEISVEI L'ANIYIM?- And [why then did the Chachamim not institute that the Kenas] be given to the poor [in which case the Kusim would still distance themselves from the main body of Jewry since they would feel slighted, but the sinner would not benefit]?

2)[line 2]ממון שאין לו תובעיםMAMON SHE'EIN ALAV TOV'IM - Money Which no Individual may Claim

(a)That which must be given to any one of a large group, such as any of the twenty-four Matnos Kehunah (priestly gifts) which must be given to a Kohen or Ma'asros which must be given to either Leviyim or the poor, is in the category of Mamon she'Ein Lo Tov'im. This means that while the owner has an obligation to give the Matanah, no single individual may claim it in court. This is because the owner can always claim that he will give it to another individual in the group.

(b)For this reason, if one damages or steals Mamon she'Ein Lo Tov'im, he cannot be obligated by Beis Din to pay. One will, however, be held responsible in heaven for his action if he does not make reparations.

(c)Rav Mari explains that if one were obligated to give the equivalent of the Kenas that he owes to a Na'arah Kusis to the poor, he would still gain as a result of his sin. This is because he would be able to keep the money for himself, claiming that he planned on giving the amount to a different Ani.

3)[line 3]פקחPIKE'ACH- one who is in full control of his faculties

4a)[line 3]חרשCHERESH- a deaf mute

b)[line 4]שוטהSHOTEH- lit. a fool; one who is deranged (see Background to Gitin 70:66 for more specific parameters of a Shoteh)

5)[line 7]אפוטרופוסAPOTROPOS- a steward [appointed to represent the interests of the orphans]

6)[line 8]נתפקחNISPAKE'ACH- became a Pike'ach; i.e., gained the ability to hear and speak

7)[line 8]נשתפהNISHTAFEH- came to his senses

8)[line 10]חזקתוCHEZKASO- its current state [of a Mu'ad]

9)[line 10]שור האצטדיןSHOR HA'ITZTADIN- a bull that opposes a matador in a bullfight

10)[line 11]"[וְ]כִי יִגַּח [שׁוֹר אֶת אִישׁ... סָקוֹל יִסָּקֵל הַשּׁוֹר...]", ולא שיגיחוהו"[V']CHI YIGACH [SHOR ES ISH... SAKOL YISAKEL HA'SHOR...]," V'LO SHE'YAGICHUHU- "[And] if [an ox] shall gore [a man... stone the ox...]" (Shemos 21:28), [which implies that the ox is killed only if it chose to gore on its own] and not that they incited it to gore

11)[line 14]לתם לגבות מגופוL'TAM LI'GVOS MI'GUFO- to collect from the body of a Tam (i.e., to collect no more than the worth of the damaging animal (see Background to 2:28; see also end of 33a)

12)[line 19]נגחניןNAGCHANIN- animals accustomed to goring (i.e., Mu'adim)

13)[line 21]משוינןMASHVINAN- lit. we equate them with; i.e., we change their status to

14)[line 21]הדרHADAR- subsequently

15)[line 22]מעלייהME'ALIYAH- lit. from his best [possessions]; i.e., the full value of the damage [regardless of the value of the damaging animal]

16)[line 25]אין נזקקין לנכסי יתומיןEIN NIZKAKIN LE'NICHSEI YESOMIM- Beis Din does not attend to [collect] the property of orphans [who are under the age of Bar Mitzvah in order to pay those to whom they owe money since a) they are not obligated in Mitzvos (RASHI); b) since Beis Din may not collect from an individual unless they are present, and a minor is not Halachically "present" in Beis Din (TSOFOS DH v'Rebbi)]

17)[line 26]רבית אוכלת בהןRIBIS OCHELES BA'HEN- interest is eating away at them (since their father had taken a loan from a Nochri)

18)[line 27]כתובת אשהLI'CHESUVAS ISHAH - a wife's marriage contract (KESUVAS ISHAH)

(a)When a man marries (Nisu'in) a woman who was a Besulah (virgin) at the time of her Kidushin (betrothal), he must give her a marriage document stipulating that she is to receive 200 Zuz from him or his estate should he divorce her or die. 200 Zuz are equivalent to the value of 960 grams of silver. This document is called a Kesuvah (lit. "written"). Tana'im disagree as to whether this obligation is mid'Oraisa (Biblical) or mid'Rabanan (Rabbinic) in origin (Kesuvos 10a).

(b)If the bride had been widowed or divorced and is therefore a Be'ulah (not a virgin) than she receives a different Kesuvah. The Kesuvah of a Be'ulah guarantees only 100 Zuz to the bride in the case of the dissolution of the marriage. There is no question that the obligation to give this document is mid'Rabanan in origin (Kesuvos 10b). A widow is termed an "Almanah" due to that which her Kesuvah is written for the amount of a "Maneh" (one hundred Zuz) (ibid.).

(c)If a woman is younger than three at the time of her Kidushin, she always receives 200 Zuz. This is because her hymen grows back even when broken at this young age, and she is therefore by definition a Besulah.

(d)The amounts detailed above are only the minimum required to be written into a Kesuvah. One may voluntarily add any amount onto his wife's Kesuvah, and doing so is considered a way of honoring her.

19)[line 28]מזוניMEZONEI - one's obligation to provide his wife with sustenance (MEZONOS)

(a)A man has certain obligations toward his wife. He is obligated in some of these mid'Oraisa, and some mid'Rabanan. Certain of these conditions of marriage are written into every Kesuvah (Jewish marriage contract; see previous entry), and they are all enforced by Beis Din. His Torah obligations include:

1.One must provide his wife with marital relations (Shemos 21:10).

2.One must provide her with clothing.

3.One must provide her with sustenance (Mezonos).

(b)Some opinions maintain that these last two obligations are mid'Rabanan in nature (see Kesuvos 47b and RAMBAN ibid.). According to those who maintain that Mezonos is a Rabbinic institution, the Rabanan established a reciprocal institution as well. In return for that which one must support his wife, all of her earnings belong to her husband.

(c)The Amora'im differ over whether the primary object of this joint decree was to benefit the husband or to benefit the wife (Kesuvos 58b). Rav Huna, quoting his Rebbi Rav, maintains that the latter is true. Rava explains that since the wife is the main beneficiary, it is her prerogative to forgo her rights to Mezonos and in turn retain that which she acquires. This is referred to as her ability to say, "Eini Nizones v'Eini Osah" - "I do not wish to be supported nor produce."

(d)If a woman is widowed, she receives Mezonos from her late husband's estate for as long as she has neither asked to receive the amount promised to her in her Kesuvah nor made an attempt to get remarried.

20)[line 28]איפוךEIPUCH- (the Gemara answers) switch [the opinions of Rebbi Yochanan and Rebbi Yosi bar Chanina]

21)[line 31]משוית ליה לרבי יוסי בר חנינא טועהMASHVIS LEI L'REBBI YOSI BAR CHANINA TO'EH?- you are willing to make Rebbi Yosi bar Chanina into one who has erred [in that he forgot the Halachah that Beis Din does not attend to the property of orphans]?

22)[line 32]דיינא הוא, ונחית לעומקיה דדינאDAINA HU, V'NACHIS L'UMKEI D'DINA- he is a judge [in Beis Din], and plumbs the depth of the law

23)[line 34]מזיק שאניMAZIK SHANI- a case in which [that which belongs to the orphans causes] damage is an exception [to the rule that Beis Din does not collect from their property]


24)[line 1]ממנעי ולא עבדיMIMNE'EI V'LO AVDEI- they will refrain from accepting [the position of Apotropos]

25)[line 2]חוזרין ונפרעיןCHOZRIN V'NIFRA'IN- [Apotropsin] then return and exact payment

26)[line 4]תנאי היאTENAI HI- is the subject of a disagreement between Tana'im

27)[line 6]מדינת היםMEDINAS HA'YAM- lit. a land overseas; a distant place

28)[line 14](אמרו) [אמרי](AMRU) (AMREI)- [the scholars in the Beis ha'Midrash discussing this Beraisa] said (the YA'AVETZ corrects the Girsa)

29)[line 15]לא מייעד כללLO MEYA'ED KLAL- it never attained the status of a Mu'ad to begin with

30)[line 17]תמימותוTEMIMUSO- its state of being complete

31)[line 22]רשות משנהRESHUS MESHANEH- [whether or not a change in] ownership changes [the status of a Mu'ad back into that of a Tam] (similar to the Machlokes in our Mishnah between Rebbi Meir and Rebbi Yosi)

32)[line 26]ר' יעקב מאי עבידתיה?REBBI YAKOV MAI AVIDTEI?- What did Rebbi Yakov do? (see Insights)

33)[line 29]כלל כלל לא בעי לשלומיKLAL KLAL LO BA'I SHELUMEI- he should not be responsible to pay for any of it [since the animal escaped due to circumstances beyond his control (an Ones)]

34a)[line 32]שמירה פחותהSHEMIRAH PECHUSAH- a lesser degree of guarding, equivalent to a closed door that will withstand a wind of average strength (a Ru'ach Metzuyah)

b)[line 33]שמירה מעולהSHEMIRAH ME'ULAH- a greater degree of guarding, equivalent to a closed door that will withstand even an uncommonly strong wind (a Ru'ach she'Einah Metzuyah)

35)[line 34]צד תמות במקומה עומדתTZAD TAMUS BI'MEKOMAH OMEDES - The Half of the Animal that is a Tam Remains in Place

(a)An ox that has either never gored another animal or that has done so no more than twice is termed a Tam. Should such an ox gore another animal, then its owner need only pay half of the damages, as such behavior is unusual among oxen. Furthermore, he need not pay any more than the worth of his own ox ("mi'Gufo") (Shemos 21:35).

(b)If an ox has gored the same species of animal three times or more, and its owner was informed and duly warned to guard his ox after each time, then the ox is termed a Mu'ad. Since its owner has been negligent, he must make full restitution for the damages caused by his animal, even if this amounts to more that the value of his animal ("Min ha'Aliyah") (Shemos 21:36).

(c)According to the opinion which maintains that "Tzad Tamus bi'Mekomah Omedes", the owner of a Mu'ad pays Min ha'Aliyah only for the second half of the damages. The first half, for which he was responsible even when his animal was a Tam, remains in place - and he therefore need pay only mi'Gufo.

36)[line 36]מועד סגי ליה בשמירה פחותהMU'AD SAGI LEI B'SHEMIRAH PECHUSAH- it is sufficient to guard a Mu'ad to a lesser degree [but not a Tam (see 45b)]

37)[line 36]וסבר לה כרבנן דאמרי מעמידין אפוטרופוס לתם לגבות מגופוV'SAVAR LAH K'RABANAN D'AMREI MA'AMIDIN APOTROPOS L'TAM LI'GVOS HEIMENU- and he agrees with the Rabanan who maintain that Beis Din appoints an Apotropos to collect from the body of a Tam [and he therefore rules that it is only the first half-damage of the Tam that is paid for]

38)[line 38]ולא פליגי?V'LO PELIGI?- and do [Rebbi Yakov and Rebbi Yehudah] not disagree [in any of these matters]?

39)[line 41]מה שמחייב ר' יהודה פירש ר' יעקבMAH SHE'MECHAYEV REBBI YEHUDAH PIRESH REBBI YAKOV- Rebbi Yakov [merely] explained the degree to which Rebbi Yehudah obligated [and they indeed do not disagree]

40)[line 43]לא נטריה כללLO NATREI KLAL- he did not guard it whatsoever

41)[line 44]בחדאB'CHADA- in one [ruling]

42)[line 45]דאילו ר' יהודה סבר...D'ILU REBBI YEHUDAH SAVAR...- that whereas Rebbi Yehudah maintains... According to the DIKDUKEI SOFRIM, the correct Girsa here is "d'Amar". This is because "d'Ilu" implies that Rebbi Yakov disagrees with Rebbi Yehudah, and regarding the Halachah of Tzad Tamus bi'Mekomah Omedes they are in agreement.

43)[line 51]שפירSHAPIR- [that which Rebbi Yakov discusses a case involving a Mu'ad] is satisfactory [since it is only in such a case that his ruling is novel]

44)[last line]אדמוקי לה במועד, נוקמא בתם!AD'MUKI LAH B'MU'AD, NUKMA B'TAM!- instead of establishing [the case] as one involving a Mu'ad, establish it as one involving a Tam!