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.


QUESTION: The Gemara cites a Beraisa which states that if the Shor of a Cheresh, Shoteh, or Katan gores someone else's Shor, "Rebbi Yakov pays Chatzi Nezek." The Gemara asks, what is Rebbi Yakov paying for? It was not his ox that gored! The Gemara answers that the Beraisa should read instead, "Rebbi Yakov says [that one] pays Chatzi Nezek."
If the Tana of the Beraisa made such an obvious mistake, why does the Gemara quote the original version of the Beraisa? The Gemara should have emended the Beraisa and quoted the corrected version in the first place! (HAGAHOS YA'AVETZ)
(a) The YA'AVETZ answers that even when the Gemara emends the text of a Beraisa by saying "Ela Eima..." ("rather, say..."), it does not mean that the original version was a mistake. Rather, it means that the intention of the Beraisa is as such, and even without emending it the Beraisa may be read in a way that conveys this meaning.
The Ya'avetz explains that Rebbi Yakov was the Av Beis Din, and in that capacity he was considered responsible for Yesomim (see beginning of 37a). Therefore, he acted as the Apotropos (custodian) for the Yesomim who came to his court. When their Shor gored, he paid out of his own funds to cover their obligation of Chatzi Nezek (as the Gemara earlier requires the Apotropos to pay; according to Rebbi Yochanan, he paid out of the estate of the Yesomim).
TOSFOS in a number of places (see Yevamos 25b, DH b'Omer) makes a similar point regarding the word "b'Omer" in the Gemara's explanation of a statement of a Tana or Amora. The Gemara does not mean to say that the person actually said it, but that this is what he meant by what he did say. TOSFOS (Kesuvos 4b, DH u'Mi; Bava Metzia 45b, DH Mai) and the RAN (Nedarim 46a, DH Teni Nadar) write that the same sometimes applies when the Gemara says "Teni"; it does not mean to correct the wording of the Beraisa but merely to explain the meaning of the Beraisa. The same explanation is given for the word "Eima" (the term used by the Gemara here) by Tosfos in Bava Basra (80b, DH Taritz v'Eima); it does not mean that the wording of the Beraisa is incorrect and must be fixed, but that one should understand the intention of the words of the Beraisa as such.
RAV YOSEF ENGEL in BEIS HA'OTZER (1:179), in a lengthy discourse, gives two explanations for the Gemara's usage of the word "Eima" in dozens of places. When the Gemara says that the words of a Beraisa "should say" -- "Eima" -- something else, it means either that this is the intention of the words of the Beraisa without any emendation, or that the Beraisa's statement holds true without the emendation and it is teaching something else (through Kabalah). The VILNA GA'ON (end of DIVREI ELIYAHU, "Kelalim") takes this further and says that when the Gemara uses the term, "Chesurei Mechasra v'Hachi Katani," it does not mean to change the original text of the Tana, but rather the original text remains valid, and the Gemara means either that the words of the Tana can be read to mean what the Gemara says that it means, or the original words of the Tana teach a different point. This understanding of "Chesurei Mechasra" was actually proposed before the Vilna Ga'on, by RABEINU BACHYE (Shemos 34:27).
(b) The PANIM YAFOS (end of Vayishlach) suggests an interpretation with a Kabalistic connotation of the original reading of the Beraisa. The Beraisa teaches that Yakov Avinu and his descendants are suffering for the half-damage (Chatzi Nezek) for which Yakov Avinu was responsible.
On the verse, "v'Achos Lotan Timna" -- "the sister of Lotan was Timna" (Bereishis 36:22), Rashi explains that Timna wanted to marry into the family of the Avos. When she was not accepted by Yakov or his children, she went and became the Pilegesh (concubine) of Elifaz, son of Esav. The ARIZAL writes that the wisdom that is found among the nations (see Eichah Rabah 2) comes from the wisdom that was rejected and was left "behind" the wisdom of Hash-m that He granted to Yisrael. The Panim Yafos asserts that this is alluded to in the above verse. The letters that spell "Lotan" are each one letter "behind" the letters of "Chochmah." The word "sister" also alludes to Chochmah (Mishlei 7:4; see Berachos 57a). Timna, who represents the "rejected wisdom" of the nations, first approached Yakov Avinu to rectify and perfect that wisdom. Yakov Avinu was able to help her only partially, by rectifying the "Taf" and "Mem" of "Timna," by virtue of his being an "Ish Tam" (Bereishis 25:27), which is why "Yakov Avinu Lo Mes" ("Tam" and "Mes" comprise the letters "Taf" and "Mem"), since he overpowered the opposing forces with that half of "Timna." However, he was not able to rectify the letters "Nun" and "Ayin" of "Timna," and therefore Timna took that part of the remaining wisdom to the nations of the world by marrying Elifaz. "Ayin" and "Nun" are the root letters of "Ani," and that is why Elifaz was able to take away all of the possessions of Yakov, leaving him an "Ani," a poor person, since he had control over the "Ayin-Nun" of Timna. When the Egyptians said, "Havah Nischakmah Lo" -- "Let us make ourselves wise over them" (Shemos 1:10), they were using this wisdom to cause "Inuy" (from "Ayin-Nun"), affliction, to the Jewish people.
This is what the Beraisa alludes to when it says that "Rebbi Yakov pays half of the damage" -- Yakov Avinu is responsible for the damage caused by the other half of Timna whom he rejected.
(c) The Rishonim explain that Rebbi Yakov's intention is to teach that one pays only Chatzi Nezek and not all of the Nezek. He does not mean to teach that one must pay half and not nothing. Rashi and Tosfos explain that this is evident from the fact that Rebbi Yakov adds the words "Chatzi Nezek" and does not say merely that "one is obligated."
Actually, Rebbi Yakov does not use the term "Mechayev Chatzi Nezek," but rather "Meshalem Chatzi Nezek." The reason for this is that he uses this term in the Beraisa later in reaction to Rebbi Yehudah who says "Mechayev." He cannot use the same word as Rebbi Yehudah, since he is explaining (or arguing with) Rebbi Yehudah, and therefore he uses the word "Meshalem." The word "Meshalem," however, cannot be used by itself, since "Meshalem" does not mean a ruling of obligation or exemption, but rather it refers to an amount that must be paid. Therefore, the word "Meshalem" must always appear with an amount that must be paid. Why, then, does the fact that he adds the words "Chatzi Nezek" imply that Rebbi Yakov intends to exclude Nezek Shalem? Perhaps he adds the words "Chatzi Nezek" because he uses the term "Meshalem" and must complete his sentence!
Perhaps it is for this reason that the Beraisa omits the word "Amar" and instead says that "Rebbi Yakov pays Chatzi Nezek," using the word "Meshalem" as a transitive verb (which means that he "makes others pay") similar to the word "Mechayev." If "Meshalem" is used in such a manner, it does not need to be associated with an amount ("Chatzi Nezek") but can mean simply that the person is obligated, just like the word "Mechayev." It is from the fact that the Beraisa omits the word "Amar" that we may infer that the emphasis is on paying Chatzi Nezek as opposed to paying Nezek Shalem (in contrast to emphasizing Chatzi Nezek as opposed to being exempt altogether).
QUESTION: The Gemara cites a Beraisa in which Rebbi Yakov states that if the Shor of a Cheresh, Shoteh, or Katan gores someone else's Shor, the Apotropos must pay only Chatzi Nezek (and not Nezek Shalem; see RASHI DH b'Mai Askinan, and TOSFOS DH Iy). Rava explains that Rebbi Yakov intends to teach that even if the Shor is a Mu'ad, he is obligated to pay only Chatzi Nezek as long as he guarded the Shor with a "Shemirah Pechusah," a minimal amount of Shemirah. This is because Rebbi Yakov rules that the owner of a Shor Tam is obligated if it does damage while being guarded with a "Shemirah Pechusah," and he rules that the "Tzad Tamus," the Tam-element of the Shor, remains in the Shor even when it becomes a Mu'ad.
If Rebbi Yakov's main point is that it suffices to guard a Mu'ad with a "Shemirah Pechusah" and therefore the owner pays only Chatzi Nezek (for the Tzad Tamus in it) and not Nezek Shalem, why does he teach this Halachah only with regard to a Shor that belongs to a Cheresh, Shoteh, or Katan? This Halachah should apply regardless of who owns the Shor, and Rebbi Yakov should have taught this Halachah with regard to an ordinary Shor of an ordinary owner. (PNEI YEHOSHUA)
(a) The PNEI YEHOSHUA answers that one might have thought that Beis Din is more lenient when the Shor belongs to a Cheresh, Shoteh, or Katan. One might have thought that in order to encourage people to become Apotroposim for the animals of a Cheresh, Shoteh, and Katan, Beis Din exempts the Apotropos even for the damage caused by the Tamus-part of the animal when it was guarded with a "Shemirah Pechusah." Otherwise, people would refrain from becoming Apotroposim, because they will need to guard the animals with a "Shemirah Me'ulah." Rebbi Yakov teaches that even when the Shor belongs to a Cheresh, Shoteh, or Katan, the Apotropos must still pay for the "Tzad Tamus."
(b) The Gemara later (40a) concludes that Rebbi Yakov actually may intend to teach simply that a Shor Tam of a Cheresh, Shoteh, or Katan must pay Chatzi Nezek because of the rule that "Ma'amidin Apotropos l'Tam." (See Tosfos DH ad'Mukei.)
The Gemara explains that the reason why Rava said that Rebbi Yakov obligates one to pay Chatzi Nezek when the Shor is a Mu'ad, and an Apotropos guards it with a "Shemirah Pechusah," is that it was clear to Rava that Rebbi Yakov agrees with Rebbi Yehudah's opinions regarding "Tzad Tamus" and "Shemirah Pechusah," just as he agrees with Rebbi Yehudah's opinion regarding the obligation of an Apotropos to pay for damages of a Tam.
Accordingly, Rava might not mean to say that the Beraisa of Rebbi Yakov actually discusses a Shor Mu'ad that damaged while it was being guarded with a "Shemirah Pechusah." Rather, he might mean simply that Rebbi Yakov's ruling would be valid even if the Shor was a Mu'ad and the owner guarded it with a "Shemirah Pechusah," since Rebbi Yakov agrees with Rebbi Yehudah's opinions. However, Rava agrees that the Beraisa of Rebbi Yakov indeed discusses a Shor Tam, and that it teaches that an Apotropos must pay for the damages of a Tam, and that is why Rebbi Yakov mentions the damages caused by the Shor of a Cheresh, Shoteh, or Katan. (M. KORNFELD)