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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.

1)OXEN THAT DO NOT PAY

(a)(Mishnah): If a healthy person's ox gored the ox of a Cheresh (deaf-mute), lunatic or child, he is liable;

1.If the ox of a Cheresh, lunatic or child gored a healthy person's ox, he is exempt.

(b)If the ox of a Cheresh, lunatic or child gores, Beis Din appoints an Apotropos (overseer). Witnesses testify in front of the Apotropos.

(c)R. Meir says, when the Cheresh or lunatic becomes healthy, or the child grows up, the ox reverts to being Tam;

(d)R. Yosi says, it keeps its status.

(e)An Itztadin ox (one that is trained to gore in stadiums) is not killed - "when (an ox) will gore (...it will be stoned)", not when it is incited to gore.

(f)(Gemara) Question: The Mishnah says that if the ox of a Cheresh, lunatic or child gored a healthy person's ox, he is exempt. I.e., we don't appoint an Apotropos to collect from a Tam ox;

1.Contradiction (Seifa): If the ox of a Cheresh, lunatic or child gores, Beis Din appoints an Apotropos, and witnesses testify in front of the Apotropos (to collect from it)!

(g)Answer (Rava): If the ox of a Cheresh, lunatic or child is established to gore, Beis Din appoints an Apotropos, and witnesses testify in front of the Apotropos to make the ox Mu'ad. Future gorings are paid for from the Aliyah (i.e., not from the ox itself).

(h)Question: After it is Mu'ad, who pays?

(i)Answer #1 (R. Yochanan): The child pays.

(j)Answer #2 (R. Yosi bar Chanina): The Apotropos pays.

(k)Question: Did R. Yochanan really say that the child pays?!

1.(Rav Yehudah): Beis Din collects from orphans' property only to pay off a loan (from a Nochri) on interest.

2.(R. Yochanan): They collect only for a loan on interest, or to pay a Kesuvah (this exempts the orphans from feeding the widow).

(l)Answer #1: We must switch the opinions of R. Yochanan and R. Yosi bar Chanina.

(m)Objection (Rava): If so, R. Yosi bar Chanina obligates the child for future gorings. This is wrong!

1.R. Yosi bar Chanina was a judge. He descended to the depth of judgment. Surely he did not say this!

(n)Answer #2 (Rava): Do not switch the opinions. A damager is an exception to the normal rule;

1.R. Yochanan says we collect from the child. If we would collect from the Apotropos, no one would agree to be an Apotropos!

39b----------------------------------------39b

2.R. Yosi bar Chanina says that we collect from the Apotropos. When the child grows up, the Apotropos collects from him.

2)COLLECTING FROM PEOPLE WHO ARE NOT HERE

(a)Tana'im argue about whether or not we appoint an Apotropos to collect from a Tam.

1.(Beraisa - Sumchus): If Reuven became deaf or insane, or went overseas, his ox is Tam until witnesses testify (three times) in front of him (when he is well);

2.Chachamim say, we appoint an Apotropos, and witnesses testify in front of the Apotropos;

3.Sumchus says, if Reuven recovered, grew up or returned from overseas, his ox reverts to be Tam until witnesses testify in front of him;

4.R. Yosi says, the ox keeps its status.

(b)Question: Sumchus said 'his ox is Tam (until witnesses testify). What does this mean?

1.Suggestion: Witnesses do not testify to make it Mu'ad (in his absence).

2.Rejection: The Reisha says 'his ox reverts to be Tam.' This shows that it became Mu'ad!

(c)Answer: Rather, 'his ox is Tam' - it is in its Temimus (entirety). I.e. we do not appoint an Apotropos to collect from a Tam ox in Reuven's absence (but we accept testimony to make it Mu'ad);

1.Chachamim argue, and say that we appoint an Apotropos to collect from a Tam!

(d)Question: What do they argue about in the Seifa?

(e)Answer: They argue about whether a change in Reshus (jurisdiction) changes status of the ox.

1.Sumchus says that a change in Reshus changes its status. R. Yosi says that it does not.

3)R. YAKOV'S OPINION

(a)(Beraisa #1): The ox of a Cheresh, lunatic or child gored;, R. Yakov pays half-damage.

(b)Objection: Why should R. Yakov pay?!

(c)Correction: Rather, R. Yakov says that it pays half- damage.

(d)Question: What is the case (in which R. Yakov needed to teach that it pays half-damage)?

1.If it is Tam, this is obvious. Every Tam pays half-damage!

2.Suggestion: It is Mu'ad.

3.Rejection: If it was guarded well, it is exempt. If it was not guarded, it pays full damage!

(e)Answer (Rava): Really, it is Mu'ad. It was guarded, but not well guarded;

1.R. Yakov holds like R. Yehudah, who says that when an animal becomes Mu'ad, it retains the obligation to pay for half-damage like a Tam;

2.He holds like R. Yehudah, that a Mu'ad is exempt if one guarded it minimally (so he is exempt from the additional half that a Mu'ad pays);

3.He holds like Chachamim, that we appoint an Apotropos to collect from a Tam (so he pays this half).

(f)Objection (Abaye): R. Yakov does not hold like R. Yehudah!

1.(Beraisa #2 - R. Yehudah): If the ox of a Cheresh, lunatic or child gored, it is liable;

2.R. Yakov says, it pays half-damage.

(g)Answer (Rabah bar Ula): They don't argue. R. Yakov explains R. Yehudah.

(h)Question: According to Abaye, what do they argue about?

(i)Answer #1: They argue about a Mu'ad that was not guarded at all. R. Yakov holds like R. Yehudah regarding one law, but not regarding another.

1.He agrees that when an animal becomes Mu'ad, it retains liability to pay half-damage like a Tam;

2.R. Yehudah holds that we appoint an Apotropos to collect from a Tam. R. Yakov holds that he is appointed only to collect the extra half-damage of Mu'ad.

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