BAVA KAMA 96 (1 Elul) - Dedicated l'Iluy Nishmas Esther Chaya Rayzel (Friedman) bas Gershon Eliezer (Yahrzeit: 30 Av, Yom Kevurah: 1 Elul) by her daughter and son-in-law, Jeri and Eli Turkel of Raanana, Israel. Esther Friedman was a woman of valor who was devoted to her family and gave of herself unstintingly, inspiring all those around her.

[a - 29 lines; b - 50 lines]

1)[line 1]הא דמסיק ביה כשיעור ארעא ושבחאHA D'MASIK BEI K'SHIUR AR'A U'SHEVACHA- that [which Shmuel ruled that a creditor need not pay the purchaser for the Shevach is a case] in which he was owed by [the debtor] an amount equal to the value of the land and the additional value

2)[line 3]אי אית ליה זוזי ללוקח לא מצי מסלק ליה לבעל חובIY IS LEI ZUZEI L'LOKE'ACH LO MATZI MESALEK LEI L'VA'AL CHOV- [even] if the purchaser has money [equal in value to the land] he may not remove the creditor [from his claim to the land]

3)[line 4]שפירSHAPIR- [that which the creditor may appropriate the Shevach and pay for it against the will of the purchaser even when he is not owed that amount of money] is satisfactory

4)[line 8]גריוא דארעא שיעור שבחאיGERIVA D'AR'A SHIUR SHEVACHA'I- a measure of land equal in value to that which I caused the land to appreciate

5)[line 9]שויה ניהליה אפותיקיSHAVYA NIHALEI APOTIKI - he made it a designated security (APOTIKI)

(a)One may designate one of his possessions or parcels of land as a security for a debt. Although the item does not yet pass into the possession of the creditor, he holds a Shibud (lien) on it such that even if the debtor sells the item or otherwise passes it from his possession the creditor may claim it in lieu of the debt. Such an item is termed an "Apotiki." This is a contraction for "Apo Tehei Ka'i" - "upon this shall [the debt] stand". Since the debt is now dependant upon the Apotiki, should the Apotiki be lost, stolen, or rendered forbidden then the creditor has lost all rights to collect.

6)[line 10]פרעוןPIRA'ON- collection

7)[line 11]השביחHISHBI'ACH- the item appreciated in value

8)[line 12]הורישHORISH- he bequeathed it

9)[line 13]בתר דבעיא, הדר פשטהBASAR D'VE'AYA, HADAR PASHTAH- after he asked [the question], he subsequently answered it

10)[line 15]תקנתא לעובד כוכבים ניקו ונעבודTAKANTA L'OVED KOCHAVIM NEIKU V'NA'AVOD?- shall we enact a decree to benefit a Nochri?

11)[line 16]זבניהZAVNEI- he sold it

12)[line 17]מחמתMACHMAS- lit. because of; based upon the actions of

13)[line 18]הדרHADAR- subsequently [went]

14)[line 21]תיקוTEIKU - An Unanswered Question

(a)The Gemara often leaves a question unanswered with the word "Teiku". The PRI MEGADIM (Igeres preceding his introduction to Orach Chaim, #9) cites three explanations for this term:

1.[this question shall remain] sealed in its container (ARUCH, Erech Tik)

2.let [the question] stand ("Tehei Ka'I"; MUSAF HA'ARUCH)

3.Tishbi Yetaretz Kushyos v'Ibayos - Eliyahu ha'Navi will answer difficulties and questions (TOSFOS YOM TOV, end of Eduyos)

15)[line 21]דיקלאDIKLA- a date-palm

16)[line 21]קטליהKATLEI- lit. he killed it; i.e., he chopped it down

17)[line 21]שדיא מארעא לארעא דידיהSHADYA ME'AR'A L'AR'A DIDEI- he threw it from [the] land [where it had been growing] to his own land

18)[line 22]מיקריMIKRI- it is called

19)[line 23]דיקלא ועביד גוביDIKLA V'AVID GUVEI- [if he stole] a date-palm and cut it cross-sections (O.F. tronches)

20)[line 23]מיהתMIHAS- still

21)[line 24]כשוריKESHUREI- beams

22a)[line 24]רברביRAVREVEI- large

b)[line 24]זוטריZUTREI- small

23)[line 25]קצוצייתאKETZUTZYASA- boards

24)[line 25]לוליבאLULIVA- a Lulav; the branch of a date-palm

25)[line 26]הוציHUTZEI- double leaves of a palm branch that have been stripped from its spine

26)[line 27]חופיאCHUFYA- a broom (O.F. escove) fashioned from detached double palm leaves that have been split down the middle

27)[line 27]שרשוראSHARSHURA- a rope woven from half-palm leaves

28)[line 28]הדר סתר ליהHADAR SASAR LEI- he can subsequently take it apart [at which point it will once again be a Chufya]

29)[line 28]נחלקה התיומת, מהו?NECHLEKAH HA'TEYOMES, MAHU? If the twin central leaf (of the Lulav) became split, what is the Halachah? (ARBA'AH MINIM)

(a)Every adult Jewish male must hold four types of branches or fruits on the first day of Sukos. These four species consist of Pri Etz Hadar (an Esrog; a citron, which is closely related to the lemon), Kapos Temarim (a Lulav; a branch from a palm tree cut prior to the opening and spreading of its leaves), Anaf Etz Avos (Hadasim; myrtle branches) and Arvei Nachal (Aravos; willow branches) (Vayikra 23:40). It is customary to hold one Esrog, one Lulav, three Hadasim, and two Aravos. The Esrog is held in the left hand, whereas the other three species are held together in the right.

(b)According to Torah law, these species must be taken only on the first day of Sukos; this is the case anywhere but in the Beis ha'Mikdash. Once the Beis ha'Mikdash was destroyed, Rebbi Yochanan ben Zakai decreed that all of Klal Yisrael should take them for all seven days of Sukos in commemoration of the way in which they were taken in the Mikdash.

(c)Our Gemara asks what the Halachah is if one steals a Lulav on Sukos and then splits (Nechlekah) the Teyomes (the central leaf; see Insights for other definitions of a Teyomes). Does such an action render the Lulav invalid for the Mitzvah, in which case it has a different name (a "Lulav Pasul") and the thief acquires it? Or is such a Lulav still valid?

30)[last line]ניטלהNITLAH- if it was removed


31)[line 5]עפראAFRA- earth [suitable for brick-making]

32)[line 5]לבינתאLEVEINASA- a brick

33)[line 6]הדר משוי ליה עפראHADAR MESHAVEI LEI AFRA- he can subsequently [smash it and] render it earth

34)[line 9]פנים חדשות באו לכאןPANIM CHADASHOS BA'U L'CHAN- lit. a new face has arrived; i.e., it is a different entity [since no two bricks have exactly the same dimensions]

35)[line 10]נסכאNASCHA- a metal ingot [usually of precious metal]

36a)[line 14]שחימיSHECHIMEI- tarnished [coins]

b)[line 14]חדתיCHADTEI- new [coins]

37)[line 16]מידע ידיע שיחמייהוMEIDA YEDI'A SHICHMAIHU- their tarnish is still evident

38a)[line 19]טלהTLEH- a lamb

b)[line 19]אילAYIL- a ram

39)[line 20]קנאוKAN'O- he acquired it. This does not mean that the thief now owns the animal due to that which it has undergone a Shinuy. Rather, he owns it only insofar as he need not pay Arba'ah va'Chamishah if had slaughtered it or sold it (see next entry).

40)[line 20]טבח ומכרTAVACH U'MACHAR - he slaughtered or sold it - circumstances under which a thief must make restitution for more than what he stole (GENEIVAH: ARBA'AH VA'CHAMISHAH)

(a)One who steals an object from his fellow Jew must return it to its owner. If he no longer has it, or if is no longer in its original state, then he must make restitution for its value at the time of the theft (Vayikra 5:23). Under certain circumstances, a thief must pay double the value of that which he stole. The first payment is the "Keren" (principle), and the second payment is called "Kefel" (double).

(b)Only a Ganav - one who steals an item only when he is sure that its owner is not there to see - is liable to pay Kefel. A Gazlan - a robber who forcibly separates people from their possessions - never pays Kefel. The Gemara (79b) explains that the Torah treats the crime of the Ganav more seriously since he demonstrates that his fear of man is greater than his fear of G-d.

(c)If the object stolen was a live sheep or ox, and the thief either slaughtered (Tavach) or sold (Machar) it, the Torah places an even stiffer fine upon him. In the case of a stolen sheep that was slaughtered or sold, he must compensate the owner four times its value, whereas in the case of a stolen ox that was slaughtered or sold he must compensate the owner five times its value. Chazal (79b) explain that the Torah was more lenient with one who steals a sheep than with one who steals an ox since he has already suffered through the demeaning experience of walking while carrying a sheep on his shoulders. One who stole an ox, by contrast, presumably led the ox on foot behind him.

(d)A thief is responsible to pay Arba'ah va'Chamishah only if he slaughtered or sold the same animal that he stole. Therefore, if between the theft and the slaughter or sale the animal had matured into an adult, he will be absolved of these extra payments.

41)[line 20]שלו הוא טובח שלו הוא מוכרSHE'LO HU TOVE'ACH, SHE'LO HU MOCHER- it is his own [animal] that he has slaughtered, it is his own [animal] that he has sold [regarding his responsibility to pay Arba'ah va'Chamishah

42)[line 21]פדנא דתוריPADNA D'SOREI- a pair of oxen

43)[line 22]אזלAZAL- he went

44)[line 22]כרב בהו כרבאKARAV BEHU KERAVA- he used them to plow furrows

45)[line 23]אהדרינהו (למריה) [למרייהו]AHADRINHU (L'MAREI) [L'MARAIHU]- he returned them to their owner

46)[line 23]זילו שומו שבחא דאשבחZILU SHUMU SHIVCHA D'ASHBACH- go and assess the increase in value [to the land] that [the oxen] brought about

47)[line 24]תורי אשבח, ארעא לא אשבח?TOREI ASHBACH, AR'A LO ASHBACH?- [did] the oxen improve [the field], [and] the land [itself] did not contribute to the added value?

48)[line 24]מי קאמינא נשיימו כוליה? פלגא קאמינא!MI KA'AMINA NESHAIMU KULEI? PALGA KA'AMINA!- did I say to assess all of [the added value]? I meant [to assess] half [of the added value]!

49)[line 25]קא הדרה בעינאKA HADRA B'EINA- it is returning intact

50)[line 26]כי יתיבנא בדינא, לא תימא לי מידיKI YASIVNA B'DINA, LO TEIMA LI MIDI- when I sit in judgment, say nothing to me

51a)[line 27]אמר הונא חברין עלאיAMAR HUNA CHAVRIN ALA'I- Huna our colleague said regarding me

b)[line 27]אנא ושבור מלכא אחי בדינאANA U'SHEVOR MALKA ACHEI B'DINA- I and Shevor Malka (lit. King Shapur, king of Persia; here a reference to Shmuel, whose Halachic opinion is followed in monetary laws) are equals (lit. brothers) in monetary law

52a)[line 28]גזלנא עתיקא הואGAZLANA ATIKA HU- he is a chronic (lit. old) thief

b)[line 28]ובעינא דאיקנסיהU'VA'INA D'IKNESEI- and I wish to fine him

53)[line 29]הזקינהHIZKINAH- it aged [and therefore depreciated in value]

54)[line 29]בעבדים אומר לו, "הרי שלך לפניך"BA'AVADIM OMER LO, "HAREI SHE'LECHA LEFANECHA"- regarding Nochri slaves he may say to him, "Here is what is yours" [since they are compared to land, which cannot be Halachically stolen (see 117b and Background to 95:16)]

55)[line 30]מטבעMATBE'A- a coin

56)[line 30]נסדקNISDAK- it cracked

57)[line 30]הרקיבוHIRKIVU- they rotted

58)[line 30]החמיץHECHMITZ- it turned into vinegar

59)[line 31]נפסלNIFSAL- it was taken out of circulation

60)[line 31]תרומה ונטמאתTERUMAH, V'NITMEIS (TERUMAH)

(a)After a crop that is grown in Eretz Yisrael is harvested and brought to the owner's house or yard, he must separate Terumah Gedolah from the crop and give it to a Kohen. Terumah is one of the twenty-four Matnos Kehunah (gifts given to Kohanim by non-Kohanim). Although the Torah does not specify how much to give, the Rabanan set the requirement at one fortieth, one fiftieth, or one sixtieth of the total crop, depending on the generosity of the landowner. Until Terumah and Ma'asros (tithes) have been properly separated, produce is termed "Tevel" and may not be eaten.

(b)Terumah must be eaten by Kohanim or their wives, unmarried daughters, and Nochri slaves, when they are Tehorim. If the wife of a Kohen is not herself the daughter of a Kohen, she may eat Terumah only as long as her husband or at least one of their joint descendants is alive (Vayikra 22:11, Bamidbar 18:11; see Nidah 44a).

(c)A Kohen may eat Terumah only as long as it remains Tahor. The only options a Kohen has with Terumah that has become Tamei are to feed it to his animals or to burn it.

61)[line 31]חמץ, ועבר עליו הפסחCHAMETZ, V'AVAR ALAV HA'PESACH - [he stole] Chametz, and left it in his possession, violating the prohibition against owning Chametz on Pesach (BAL YERA'EH / BAL YIMATZEI)

(a)Aside from the prohibition against eating Chametz or Se'or (sourdough; a very heavily fermented dough that is mixed with fresh dough as a leavening agent) on Pesach, two Mitzvos prohibit owning Chametz or Se'or over Pesach. These are "Bal Yera'eh" - a prohibition against allowing Chametz or Se'or to be seen in one's possession (Shemos 13:7), and "Bal Yimatzei" - a prohibition against allowing Chametz or Se'or to be found in one's possession (Shemos 12:19).

(b)The Rishonim discuss whether the prohibition of Bal Yera'eh applies only to Chametz or Se'or which is actually seen on Pesach, or if it applies even to Chametz or Se'or which could theoretically be seen. Bal Yimatzei, on the other hand, applies to all Chametz or Se'or in one's possession, whether it is revealed or hidden away.

(c)Mid'Rabanan, it is prohibited to eat or derive any Hana'ah (benefit) from Chametz or Se'or that was in the possession of a Jew during Pesach.

(d)Our Mishnah discusses a case of one whose stolen Chametz remained in his possession through Pesach.

62)[line 32]נתעבדה בה עבירהNIS'AVDAH BAH AVEIRAH - a sin was committed with it (ROVE'A V'NIRBA / NE'EVAD)

[I] ROVE'A / NIRBA - Animals that had Relations with a Human

(a)A Rove'a (male animal) or Nirba (female animal) that had relations with a human is stoned (Vayikra 20:15-16; Sanhedrin 2a). The owner of these animals may not receive any benefit from his animal once the death sentence has been issued.

(b)Such animals are put to death both 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).

(c)These animals are sentenced only if there were two valid witnesses to the act. If there was only a single witness, or if it was the owner who came to Beis Din to acknowledge the action of his animal, then the animal is left alive. It is, however, unfit to be offered as a Korban.

[II] NE'EVAD - A Worshipped Animal

(a)A "Ne'evad" is an animal before which a person bowed down, worshipping it as Avodah Zarah. It is unfit to be offered as a Korban. It remains permitted for personal use, however, as live animals do not become prohibited for such when worshiped.

63)[line 32]נפסלה מעל גבי המזבחNIFSELAH ME'AL GABEI HA'MIZBE'ACH- it became unfit to be offered as a sacrifice upon the Mizbe'ach [due to an invalidating blemish (Mum; see Background to Sotah 45:68). Although the Mum is obvious, unlike the other examples listed in this part of the Mishnah, it is not an obviously damaged animal since not all animals are offered as Korbanos (RASHI). TOSFOS (to 88a DH ha'Tzorem) maintains that the animal discussed in our Mishnah is one that has been designated as a Korban, but that the thief is exempt from paying for it since the Mum developed on its own.

64)[line 32]היתה יוצאה ליסקלHAYESAH YOTZ'AH LISAKEL - the ox was being led out to be stoned (SHOR HA'NISKAL)

(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 Nirba (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.

(c)Only a Shor ha'Niskal that was observed by two valid witnesses when involved in the implicating act is put to death. If there was only a single witness, or if it was the owner who came to Beis Din to acknowledge the action of his animal, then the animal is left alive. It may not, however, be offered as a Korban.

65)[line 33]אומר לו, "הרי שלך לפניך"OMER LO, "HAREI SHELCHA LEFANECHA"- he may say to him, "Here is what is yours" [since the stolen has not been obviously damaged]

66)[line 34]כחשהKICHSHAH- if it depreciated in value

67)[line 34]לא הדר בריאLO HADAR BARI- it will not subsequently become fully healthy

68)[line 35]מר קשישא בריה דרב חסדאMAR KESHISHA BREI D'RAV CHISDA- a) the elder of Rav Chisda's two sons [who had the same name] (RASHI to Kesuvos 89b DH Mar Keshisha; see Bach ibid.); b) the younger of Rav Chisda's two sons [who was born in Rav Chisda's old age] (TOSFOS to Bava Basra 7b DH Mar Yenukah).

69)[line 40]שביקSHAVIK- leave

70)[line 41]ברייתא איפכא תניאBERAISA IPCHA TANYA- a Beraisa teaches [these same two opinions in the names of] the opposite [authors] (This Beraisa was quoted on 95a)

71a)[line 42]תניTANI- taught

b)[line 43]אתניהISNAYA- learned

72)[line 44]כי לא אפיך, חדא מקמי חדאKI LO APICH, CHADA MIKAMEI CHADA- we do not reverse [a Mishnah due to that which a Beraisa contradicts it] when one [Mishnah] confronts one [Beraisa]

73)[line 45]המחליף פרה בחמור וילדהHA'MACHALIF PARAH BA'CHAMOR V'YALDAH (KINYAN CHALIPIN)

(a)One who wishes to acquire an object must perform a Ma'aseh Kinyan - an action that effects the transfer of an object into one's possession.

(b)Metaltelin (chattel; movable goods) may be acquired through one of the following actions:

1.HAGBAHAH - lifting;

2.MESHICHAH - lit. pulling, which includes causing the object to move in any way;

3.CHATZER - having the object contained within one's domain (see Mishnah, Bava Basra 42a);

4.CHALIPIN - barter;

5.MESIRAH - lit. handing over, such as the reigns of an animal or the tie-lines of a boat.

(c)A Kinyan Chalipin is useful when one wishes to acquire an object that is not present or one that is difficult to manipulate directly. This Kinyan can take one of two forms:

1.A true barter, in which two items of equal value are exchanged;

2.A symbolic exchange, in which an object of little value is used to acquire an object of value. This type of Chalipin is referred to as a Kinyan Sudar, since a scarf (Sudar) is often handy and therefore used to effect the Kinyan. The Sudar is taken briefly in order to effect the Kinyan and then returned to its owner. Amora'im disagree as to whether a Kinyan Sudar requires the seller to give a Sudar to the purchaser, who receives the item of greater value along with it, or if the purchaser gives a Sudar to the seller, who receives the item of greater value in return. The Halachah follows the latter opinion (Bava Metzia 47b).

(d)The Beraisa cited by our Gemara discusses a case in which one person bartered his donkey for another's cow. The cow was not there at the time. Afterward, the cow was discovered to have given birth, and it was unclear as to whether it had done so before the Chalipin and the calf belonged to the seller or if it had done so following the Chalipin and the calf belonged to the purchaser. The Beraisa discusses a case of Chalipin as opposed to one in which one purchased a cow that was not there at the time since Metaltelin cannot be purchased through an cash exchange (Kidushin 26a).

74)[line 45]המוכר שפחתוHA'MOCHER SHIFCHASO- one who sells his Nochri maidservant [who is not there at the time (as a Nochri slave can be purchased through a cash exchange; Kidushin 22b)

75)[line 46]הלהHALAH- the other person

76)[line 46]זכה בהZACHAH BAH- [he who has laid claim to the offspring] gains the right to it [since a) the silence of the other implies that he is unsure, and a confident claim wins over an unsure claim (Bari v'Shema Bari Adif); b) according to the opinion that a confident claim does not win over an unsure claim, the silence of the other implies that he agrees with the other's claim (TOSFOS DH va'Halah)]

77)[line 48]כל הנשבעין שבתורה נשבעין ולא משלמיןKOL HA'NISHBA'IN SHEBA'TORAH NISHBA'IN V'LO MESHALMIN- all those required to swear by the Torah swear to exempt themselves [from paying, as opposed to swearing in order to extract money]. The reason why he is required to swear by the Torah in this situation is that he has partially agreed to a debt claimed by another (Modeh b'Miktzas ha'Taina; see Background to Gitin 48:32). This is possible in a case in which the hand of the Nochri maidservant has been severed, and the purchaser claims an uninjured maidservant and her child. The seller in turn counters with an offer to pay for the injury but not the child (see Bava Metzia 100b).

78)[line 49]אין נשבעין לא על העבדים ולא על הקרקעותEIN NISHBA'IN LO AL HA'AVADIM V'LO AL HA'KARKA'OS- one does not swear upon claims of Nochri slaves or land [but rather the burden of proof rests upon he who wishes to extract the object from the (ha'Motzi me'Chaveiro Alav ha'Re'ayah) (Bava Metzia 56a)]. From this Halachic opinion we see that it is the Chachamim who rule that Nochri slaves are Halachically compared to land.

79)[line 49]האי "הלכה כר' מאיר" "הלכה כרבנן" מיבעי ליה!HAI "HALACHAH K'REBBI MEIR" "HALACHAH K'RABANAN" MIBA'I LEI!- that [statement of Rav that] "the Halachah follows Rebbi Meir" ought to have been "the Halachah follows the Rabanan" [since Rav switched the two opinions]!