THE ARGUMENT OF R. YAKOV AND R. YEHUDAH
Question (R. Acha bar Abaye): Granted, Abaye holds that R. Yakov and R. Yehudah argue (Beraisa #1 must discuss a Mu'ad, for R. Yakov holds that we do not appoint an Apotropos to collect from a Tam);
But Rava holds that all agree (that we appoint an Apotropos to collect from a Tam). He should establish Beraisa #1 to discuss a Tam, not a Mu'ad!
If R. Yakov holds like R. Yehudah (who says that minimal guarding does not suffice for a Tam (Mishnah, 45b), the case would be that) he guarded it minimally. If he holds like R. Eliezer ben Yakov (in the coming Beraisa), he did not guard it at all.
(Beraisa - R. Eliezer ben Yakov): A Tam or Mu'ad is exempt if it was guarded minimally.
(Summation of question): The Chidush would be that we appoint an Apotropos to collect from a Tam!
Answer (Ravina): Rava established the Beraisa to discuss a Mu'ad, so it teaches that when an animal becomes Mu'ad, it retains liability for half-damage like a Tam.
Answer #2 ((to Question 3:h, 39b) - Ravina): R. Yakov and R. Yehudah argue about whether or not a change in Reshus changes the status of the ox.
The case is, a Cheresh, lunatic or child owned a Mu'ad ox. He became healthy or grew up.
R. Yehudah says, the ox is still Mu'ad (a change in Reshus does not change its status);
R. Yakov says, it is now Tam.
(Beraisa): An Apotropos pays from the Aliyah (not from the animal). He does not pay Kofer (ransom for a Mu'ad that killed a person).
Question: Who is this Tana, who holds that Kofer is for atonement, and orphans do not need atonement?
Answer (Rav Chisda): It is R. Yishmael (the son of R. Yochanan ben Berokah);
(Beraisa): "He (the owner of the ox that killed) will give the redemption of his soul" - the value of the victim;
R. Yishmael says, he gives the value of the (owner of the) damager.
Suggestion: Chachamim hold that Kofer is a payment for damage; R. Yishmael holds that it is a Kaparah (atonement).
Rejection (Rav Papa): No, all hold it is a Kaparah. They argue about how we assess the payment.
Question: Why do Chachamim obligate the value of the victim?
Answer: The Torah writes Shisa (an assessment) regarding compensation for causing a fetus to die, and regarding Kofer. Just like regarding a fetus, we evaluate the victim's value, also regarding Kofer.
R. Yishmael learns from "he will give the redemption of his soul" (the damager needs to redeem his soul).
Chachamim agree (that the damager needs to redeem his soul), but the payment is like the value of the victim.
Question (R. Acha bar Yakov #1): How does the ox of two partners pay Kofer?
Each cannot pay. The Torah said (one) Kofer, not two!
Each cannot pay half. The Torah discusses (full) Kofer, not half-Kofer!
Question #2 (R. Acha bar Yakov - Mishnah): The Gizbar (treasurer of Hekdesh) take securities from people who pledged Erchin (to give to Hekdesh an amount based on a person's age and gender), but not from people obligated to bring Korban Chatas or Olah.
Does he take securities from people liable to pay Kofer?
Since it is a Kaparah, people are concerned to bring it, it is like Chata'os and Olos, so he need not take securities;
Or, since it is paid to a person, and not to Hekdesh, people take it lightly, so he takes securities!
Alternatively, he himself did not damage, he takes it lightly, so we take a security from him!
Rav Nachman: I am still struggling with the first question!
RESPONSIBILITY OF A BORROWER
(Beraisa): If Reuven lent an ox to Shimon and told him that it is Tam, and it was found to be Mu'ad (and it damaged), each pays half-damage.
If it was Tam and became Mu'ad while with Shimon and he returned it (and then it damaged), Reuven pays half-damage, and Shimon is exempt.
Question: In the first case, why does Shimon pay half? He can say that he didn't know that it is a gorer!
Answer #1 (Rav): The case is, he knew that it was a gorer (but not that it had gored three times).
Question: Still, he can say that he intended to borrow only a Tam!
Answer: In any case, he would be responsible for half- damage. That is all we ask him to pay!
Question: Shimon can say, a Tam pays only from itself (not from my money)!
Answer: In any case, if the animal was collected, Shimon could not return it and would need to compensate Reuven!
Objection: Shimon can say, if it were Tam, I could have admitted to the damage, to be exempt!
Even according to the opinion that half-damage is not a fine (and even one who admits pays), he could have hidden the animal from Beis Din, to evade payment! (Tosfos - i.e. therefore he could have persuaded the victim to agree to a small payment).
Answer #2: Rather, the case is, Beis Din seized the animal.
Question: If so, why does Reuven pay half? He can say, you put my animal in (allowed it to be taken to) a place from where I cannot retrieve it!
Answer: Shimon can say, even had I returned it to you, Beis Din would have taken it.
Question: Reuven can say 'I could have hidden the animal!'
Answer #1: That doesn't help for a Mu'ad.
Question: That answer is only if Reuven has other property that Beis Din can collect from. If Reuven has no other property, what can we say?
Answer #2: Shimon can say, just like I owe you (the return of your animal), I owe the victim (since you owe him), due to R. Nasan's law (so you cannot blame me for letting Beis Din take it);
(R. Nasan): "He will give to the one he sinned against" teaches that if Levi owes David and David owes Moshe, we take from Levi to pay Moshe.
A CHANGE IN RESHUS
(Beraisa): If it was Tam and became Mu'ad while with Shimon and he returned it (and then it damaged), Reuven pays half-damage, and Shimon is exempt.
Question: The Seifa holds that a change in Reshus changes status of the ox, and the Reisha says that it does not!
Answer #1 (R. Yochanan): Different Tana'im taught the two clauses.
Answer #2 (Rabah): It is all like one Tana. The Reisha teaches that a change in Reshus does not change status of the ox;
The reason for the Seifa is that Shimon's negligence cannot cause Reuven's ox to be considered Mu'ad by Reuven.
Answer #3 (Rav Papa): It is all like one Tana. The Seifa teaches that a change in Reshus changes status of the ox;
The reason for the Reisha is that it is always considered Reuven's ox (giving it to someone else who will guard it is not a change in Reshus).
AN OX TRAINED TO GORE
(Mishnah): An Itztadin (stadium) ox is not killed...
Question: May it be offered for a Korban?
Answer #1 (Rav): Yes, for it was forced (to gore).
Answer #2 (Shmuel): No, for a sin was done with it.
Question (Beraisa): "From the animals" excludes a Rove'a or Nirva (an animal that had Bi'ah with a woman or man; it may not be offered). "From the cattle" excludes an animal that was worshipped. "From the flock" excludes an animal designated for idolatry. "And from the flock" excludes a gorer (that killed).
R. Shimon: The Torah needs to exclude both a Rove'a and a gorer, for each has different laws.
A Rove'a has the same law whether or not it was forced. This does not apply to a gorer.
A gorer pays Kofer, but a Rove'a does not.
Suggestion: R. Shimon said the law of Rove'a is the same whether or not it was forced, but this is not true about a gorer. This refers to (being disqualified for) a Korban.
Answer: No, it refers to being killed.
Support: Presumably, it does not refer to a Korban. The Torah did not explicitly say that it is disqualified only if it was not forced (and R. Shimon considers this distinction obvious).
(Beraisa): A gorer pays Kofer, but a Rove'a does not.
Question: What is the case (in which a Rove'a does not pay Kofer)?
If it killed through Bi'ah, why is this be different than killing with its horns?
If it had Bi'ah and did not kill, it is exempt from Kofer because it did not kill (this is not a stringency of a gorer)!
Answer #1 (Abaye): Really, it had Bi'ah and did not kill. The woman (with whom it had Bi'ah) was killed by Beis Din.
One might have thought that this is like killing her. The Beraisa teaches that this is not so.