BAVA KAMA 76 (10 Av) - Dedicated by Rabbi Dr. Eli Turkel of Ra'anana, Israel, in memory of his father, Reb Yisrael Shimon ben Shlomo ha'Levi Turkel. Isi Turkel, as he was known, loved Torah and worked to support it literally with his last ounce of strength. He passed away on 10 Av 5740.
 

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BAVA KAMA 76 (18 Adar) - Dedicated by Reb Gedalya Weinberger of Brooklyn, NY, in memory of his father, Reb Chaim Tzvi ben Reb Shlomo Weinberger, on the day of his Yahrzeit. Reb Chaim Tzvi, who miraculously survived the Holocaust, raised his children with a strong dedication to Torah and its study.

1)

TOSFOS DH TASHLUM DE'KEFEL

' "

(Summary: Tosfos reconciles Resh Lakish earlier in the Perek with this statement.)

( :) ' ' " ' - ...

(a)

Implied Question: Earlier (on Daf 68b) where Resh Lakish establishes the Mishnah of 'Ganav ve'Hikdish ve'Achar-kach Tavach, Meshalem Kefel' - where the owner declared it Hekdesh when it was already in the hands of the Ganav ...

.

(b)

Answer: There too, what he means is 'Tashlum de'Kefel'.

2)

TOSFOS DH ELA A'HEKDESH LECHAYAV

' "

(Summary: Tosfos establishes this Sugya like Rebbi Yochanan.)

' , , ( :) ' '.

(a)

Clarification: This entire Sugya goes according to Rebbi Yochanan, and not according to Resh Lakish (on Daf 68b), who establishes the Mishnah where the owner declare it Hekdesh when it was already in the hands of the Ganav.

3)

TOSFOS DH VE'HASHTA TURA DE'SHIMON

' "

(Summary: Tosfos reconciles the Sugya later in the Perek with this statement.)

' , ' ' ' ...

(a)

Implied Question: And when the Gemara says later 'Ganav ve'Hikdish, Chayav Arba'ah va'Chamishah, since it is akin to selling it to a private person ...

, .

(b)

Answer: It is speaking about Kodshei Bedek ha'Bayis, which are no longer called on the name of the owner.

, ", " ...

(c)

Chidush: And as for Kodshei Mizbe'ach, says the Ri, even though they are still called after the name of the owner, and the Hekdesh is not therefore akin to a sale ...

" " ' ' ...

1.

Chidush (cont.): Nevertheless, according to the opinion that 'Yi'ush is not Koheh', it is considered Yi'ush and Shinuy R'shus in that the Hekdesh takes effect after the Yi'ush ...

( :) ' ' ", " ' ' ...

2.

Source: As is implied earlier (on Daf 66b) where Abaye wants to prove to Rabah that 'Yi'ush is not Koneh' from "Korbano", ve'Lo ha'Gazul' ...

, " ' , .

3.

Source (cont.): Yet the Gemara says there that Hekdesh takes effect, even though it has not yet considered 'Yi'ush and Shinuy ha'Shem' - on account of 'Yi'ush and Shinuy R'shus'.

4)

TOSFOS DH VE'REBBI SHIMON HA AMAR SHECHITAH SHE'EINAH RE'UYAH LO SH'MAH SHECHITAH

' "

(Summary: Tosfos explains why this statement is confined to the opinion that holds 'Ein Shechitah Ela li'Besof'.)

" ' ... '

(a)

Clarification: This is only needed according to those who hold 'Ein Shechitah Ela i'Besof' ...

" ' ' " ' ' , ' ' '...

1.

Reason: Because according to those who hold 'Yeshnah li'Shechitah mi'Techilah ve'ad Sof' (above, Daf 72a) one could ask even if Rebbi Shimon would hold 'Shechitah she'Einah Re'uyah Sh'mah Shechitah', why he is Chayav Arba'ah va'Chamishah on Shechutei Chutz ...

, , .

2.

Reason (cont.): Since, the moment he Shechts the first bit, he renders it Asur, and the rest of the Shechitah is not performed on the owner's animal.

5)

TOSFOS DH SHECHITAH SHE'EINAH RE'UYAH HI VE'LO SH'MAH SHECHITAH

' "

(Summary: Tosfos clarifies the statement and elaborates.)

, " " ...

(a)

Clarification: Which is not considered a Shechitah regarding Arba'ah va'Chamishah, which we learn from "Tevo'ach Tevach va'Hachen" ...

...

1.

Clarification (cont.): But not regarding the La'av of Shechutei Chutz ...

.

2.

Reason: Since this is how the Torah renders one Chayav.

", ' ' , , ?

(b)

Question: Why does he (Rebbi Shimon) consider this a 'Shechitah she'Einah Re'uyah', seeing as one is able to redeem it during the Pirchus, when it is subject to 'Ha'amadah & Ha'arachah'?

" ( .)...

1.

Source: As the Gemara says in the second Perek of Chulin (Daf 30a) ...

!

2.

Reason: And there is no greater belmish than Shechitah!

, ...

(c)

Refuted Answer: It is not a S'vara to say that since it became Pasul it is no longer subject to redemption ...

, ...

1.

Refutation: Because that makes sense by a P'sul that needs to be burned, such as Pigul, which is not subject to redemption because there is a Mitzvah to burn it ,,,

( ' .) ' , ' ...

2.

Source: As the Gemara says in Perek Kol Sha'ah (Pesachim, Daf 24a) 'Kol she'be'Kodesh Pasul, ba'Eish Yisaref' ...

...

3.

Refutation (cont.): But Shechitas Chutz is not subject to burning but to burial (which is not a Mitzvah) ...

( .) ' , , ' .

4.

Refutation (concl.): As the Gemara says in Perek Ad Kamah (in Bechoros, Daf 28a) 'If someone who is not an expert examines a B'chor, and it is subsequently Shechted on his instructions, it must be buried'.

, ...

(d)

Answer #1: According to the opinion, however, that only considers a Mefarcheses alive if it is either a Yisrael who Shechts a Tamei animal, or a Nochri even if he Shechts a Tahor one, since it is not a proper Shechitah ...

' , ' " (' . ) ...

1.

Reason: Since the case of 'Shachat bah Shenayim O Rov Shenayim, ve'Adayin Mefarcheses, Harei hi ke'Chayah', cited in the second Perek of Chulin (Daf 30a & 30b [See Mesores ha'Shas]) is not a Mishnah anywhere ...

( ' .) '

2.

Reason (cont.): In fact it is synonymous with the Gemara in 'ha'Or ve'ha'Rotev' (Ibid. Daf 121a) 'Shonim Yisrael bi'Teme'ah ... '.

, , , , ...

(e)

Answer #1 (cont.): But there where the Shechitah is Kasher, Mefarcheses is not considered alive, we can answer here that Shechitas Chutz is not redeemable, because it is a proper Shechitah which takes it out of the realm of Neveilah, and also to permit it to be eaten if it could be redeemed ...

" , " ' " , ' (' :)...

1.

Answer #1 (cont.): Since here we currently hold like to Rebbi Shimon, according to whom both Rebbi Yochanan and Resh Lakish agree that 'Kodshei Mizbe'ach were subject to Ha'amadah & Ha'arachah', as the Gemara says in the last Perek of Temurah (Daf 32b) ...

.

2.

Answer #1 (concl.): And they only argue according to the Rabanan.

" ' ' ...

(f)

Question: Nevertheless, the Kashya remains according to Resh Lakish in the Rabanan, who holds that 'Kodshei Mizbe'ach were not subject to Ha'amadah & Ha'arachah', as the Gemara says there

?

1.

Question (cont.): In that no Tana anywhere states that they can be redeemed?

, ...

(g)

Refuted Answer: It is a Dochek to say that it is only mi'de'Rabanan that they cannot be redeemed, since he made the blemish with his hands ...

?

1.

Source: Like other cases of 'Matil Mum be'Kodshim', which cannot be Shechted and permitted by virtue of that blemish (See Tosfos Shantz in Shitah Mekubetzes).

", , ...

(h)

Answer (to Original Question): A blemish that occurs whilst the animal is alive is considered a blemish via which it can be redeemed, but not one that occurs after it is dead.

(.) ' , ; , , ... '

1.

Source: As the Beraisa specifically states at the end of Temurah (Daf 33a) 'If they died without blemish, they must be buried; but it they are blemished, they can be redeemed, since they do not require Ha'amadah & Ha'arachah'.

' '.

2.

Source (cont.): Nevertheless, 'If they died without blemish, they must be buried'.

6)

TOSFOS DH SHE'LO LE'SHEM BA'ALEIHEN

' "

(Summary: Tosfos discusses the Machlokes between Ravin and Rav Dimi.)

" ' ' .

(a)

Explanation #1: The same will apply to 'she'Lo li'Sheman'.

, ' ' .

(b)

Explanation #2: Or perhaps he (Ravin) even calls that too 'she'Lo le'Shem Ba'aleihen', seeing as the owner has not fulfilled his obligation.

' ' .

(c)

Ravin: And he considers it a Dochek to establish it where 'the blood spilt' (as Rav Dimi does).

' ... '

(d)

Implied Question: Rav Dimi, on the other hand, establishes it where 'the blood spilt' ...

...

(e)

Answer: Since he prefers to establish it by all Kodshim for which one is responsible ...

[] , .

1.

Answer (cont.): And 'she'Lo le'Shem Ba'aleihen' will not apply to a Korban Pesach and a Korban Chatas, which she'Lo li'Sheman renders Pasul.

76b----------------------------------------76b

7)

TOSFOS DH VE'RESH LAKISH AMAR ETC.

' " " '

(Summary: Tosfos clarifies Resh Lakish'a statement.)

' ...

(a)

Clarification: Resh Lakish is not referring to our Sugya ...

' ...

1.

Reason: Because, according to him, it is unnecessary to say that Rebbi Shimon refers to something else ...

(' :) , .

(b)

Clarification (cont.): But according to his own words earlier (on Daf 68b), that the Mishnah speaks where 'the owner declared the animal Hekdesh when it was already in the hands of the Ganav', he now estsablishes the case where he Shechted Ba'alei-Mumin outside the Azarah.

8)

TOSFOS DH BE'SHOCHET BA'ALEI MUMIN BA'CHUTZ

' "

(Summary: Tosfos cites a Machlokes between Rashi and Rabeinu Tam with regard to how this speaks.)

' ...

(a)

Explanation #1: Rashi explains that it is speaking about animals that are initially blemished ...

, ...

1.

Reason: Because if the declaration of Hekdesh preceded their blemish, they will no longer be subject to redemption once they have been Shechted ...

" (' :)- ' ' , ' ...

2.

Source: Since Resh Lakish holds , according to Rebbi Shimon in the last Sugya in Temurah (Daf 32b), that 'Kodshei Mizbe'ach were included in 'Ha'amadah & Ha'arachah', and that once they have been Shechted they are no longer able to stand ...

.

3.

Source (cont.): But by an animal that is initially blemished he concedes (that it was never subject to Ha'amadah ve'Ha'arachah).

, , ' ' ...

(b)

Explanation #2: Rabeinu Tam however, maintains that during the Pirchus (as it shudders in its death-throes), whilst the animal is able to stand, it is subject to 'Ha'amadah & Ha'arachah'.

" (' . ).

1.

Source: As the Gemara says in the second Perek of Chulin (Daf 30a & 30b).

, ( )...

(c)

Qualification: According to those however, who explain that by a complete Shechitah, Pirchus is not effective, as Tosfos explained (on Amud Alef, DH 'Shechitah') ...

' .

1.

Proof for Explanation #1: We will have to establish it by an animal that was initially blemished, as Rashi explained.

9)

TOSFOS DH VE'HALO Z'RIKAH MATERES

' "

(Summary: Tosfos clarifies the the Kashya and elaborates.)

' ' ...

(a)

Clarification: The Gemara asks according to the opinion that establishes the case where the blood spilt ...

' ' , , , ' ' .

1.

Reason: Since according to the opinion that it speaks where it was sacrificed not in the name of the owner, seeing as it was Shechted and the blood sprinkled be'Kashrus, it was a Shechitah Re'uyah even without the reason of 'Kol ha'Omed Lizarek ke'Zaruk Dami'.

( ' : ) ' ' ...

(b)

Implied Question: Even though in Perek Oso ve'es B'no (Chulin, Daf 80b & 81a) the Gemara wants to say that the Shechitah of all Kodshim is considered Shechitah she'Einah Re'uyah ...

, , " ...

(c)

Answer: The Maskana of the Gemara is that as long as the blood is ultimately sprinkled, it is a Shechitah Re'uyah, even if it did not stand to be sprinkled ...

' ' , ' ' ...

1.

Example: For example, Oso ve'es B'no which was Mechusar Z'man, since we do not say according to Rebbi Shimon 'ke'Zaruk Dami' unless it is a Mitzvah to sprinkle it ...

( : )- ' , ' , , ...

(d)

Proof #1: As the Gemara says in Perek ha'Menachos ve'ha'Nesachim (Meenachos, Daf 101b & 102a) 'All very well the Parah, stands to be redeemed' - meaning that if one finds a better one than it, it is a Mitzvah to redeem it'.

' , ' ? .

1.

Proof #1 (cont.): 'But there is no Mitzvah to redeem the Menachos?'

' (' :) ' - ' .

2.

Proof 2: Also in Kerisos (in Perek Asham Taluy, Daf 24b) the Gemara specifically says 'Say that Rebbi Shimon only says his Din regarding something that stands to be sprinkled'.

' "" ' ...

(e)

Answer (cont.) Alternative Text: And the text in the Gemara (in Chulin) reads as follows: 'But Rava (quoting Rav Hamnuna) said 'Malkos of Oso ve'es B'no does not apply to Kodshim' ...

? , , , " . '

1.

Answer (cont.): 'Why is that? Because, seeing that, as long as the Dam has not been sprinkled, the Basar is not permitted, the moment the animal is Shechted, the subsequent Hasra'ah is a Hasra'as Safek, which is not considered a Hasra'ah, and he does not therefore receive Malkos' ...

' ' ,; , .

2.

Answer (concl.): Implying that according to the opinion that Hasra'as Safek Sh'mah Hasra'ah', he does receive Malkos, in which case it is a Shechitah Re'uyah, provided the blood is ultimately sprinkled.

' ' ,' .

(f)

Explanation #2: Rashi there explains that the correct text is 'Ein Malkos Oso ve'es B'no Noheg be'Kodshim', and no more.

, .

1.

Explanation #2 (cont.): And it is a Shechitah she'Einah Re'uyah, not because it is a Hasra'as Safek but because it is Mechusar Z'man.

", , ' , ' , " " , " ...

(g)

Question: If it is Mechusar Z'man, and one is forbidden to Shecht it because of 'Oso ve'es B'no', he ought to receive Malkos on account of "Lo Sishchatu", seeing as Oso ve'es B'no applies to Kodshim, and since it is only applicable via a Shechitash she'Einah Re'uyah ...

, ?

1.

Question (cont.): It must be a Gezeiras ha'Kasuv that it is like a Shechitah Re'uyah to be Chayav on it ...

' ," , ,

2.

Precedent: Similar to Shechutei Chutz, which, although with regard to other issues, it is considered a Shechitah she'Einah Re'uyah, regarding Shechutei Chutz one is Chayav, since the Isur cannot be based on any other source.

" ?

3.

Question (concl.): And the same ought to apply here?

", ( :) - " ... ... "

(h)

Question: Why does the Gemara in the last Perek of Zevachim (Daf 113b) find it necessary to preclude Rove'a and Nirva from the realm of Shechutei Chutz from the fact that the Torah writes "ve'el Pesach Ohel Mo'ed ... " ...

' ' ?

1.

Question (cont.): Why do we not already know that since it is a Shechitah she'Einah Re'uyah' on accound of an external Isur?

.

(i)

Refuted Answer #1: And it is a Dochek to say that the Pasuk is only needed according to the Rabanan but not according to Rebbi Shimon?

" " " , .

(j)

Refuted Answer #2: Some commentaries want to answer that even though generally we learn from "Tavo'ach Tevach ve'Hachein", by Shechuti Chutz it is a Sevara that we should learn it from Shechutei Chutz itself.

", , , " ( . ) ( : ), ' ' ...

(k)

Refutation: The Ri however, refutes that because, if so, If someone Shechta a T'reifah Chulin animal in the Azarah, why does Rebbi Shimon, at the end of the second Perek of Kidushin (Daf 58a & 58b) and in 'Kisuy ha'Dam' (Chulin, Daf 85b & 85a) render it Mutar be'Hana'ah because it is a Shechitah she'Einah Re'uyah ...

, ...

1.

Refutation (cont.): Why not learn from Chulin ba'Azarah itself that it is always a Shechitah she'Einah Re'uyah ...

...

2.

Reason: Since Rebbi Shimon holds that Chulin she'Nishchatah ba'Azarah is Asur mi'd'Oraysa ...

.

(l)

Conclusion: It must therefore be because it is nevertheless crucial for there to be no other P'sul.

10)

TOSFOS DH VE'HALO PEDIYAH MATERES

' "

(Summary: Tosfos clarifies the Kashya according to both Rashi and Rabeinu Tam.)

, , ...

(a)

Question: What is the Gemara's Kashya? Perhaps it is speaking where it has already been redeemed ...

, ' ; , , ( : )?

1.

Question (cont.): Seeing as one is permitted to redeem it after the Shechitah, according to Rashi who explains that that it speaks by an animal whose blemish preceded the Hekdesh. Consequently, since it is ultimately redeemed, it is a Shechitah Re'uyah, as is evident in Chulin (Daf 80b & 81a)?

", ...

(b)

Answer #1: According to Rabeinu Tam however, who maintains that it speaks where the Hekdesh preceded the blemish ...

" ...

1.

Implied Question: Even though during the Pirchus it would have been possible to redeem it ...

, .

2.

Answer: Under normal circumstances, the Ganav would not be aware that it was Hekdesh until some time later, by which time the Pirchus would have already ceased.

, ?

(c)

Question (concl.): But according to Rashi, the Kashya remains?

- , ...

(d)

Answer #2: Even according to him however, one can answer that S'tam, the Geneivah, the Shechitah and all that is connected with it are done in secret, and they tend to eat the animal straight after the Shechitah

, .

1.

Answer #2 (cont.): Consequently, the Ganav probably does not know that it is Hekdesh until it has been eaten, at which point it can no longer be redeemed.

11)

TOSFOS DH KOL HA'OMED LIZ'ROK KE'ZARUK DAMI

' "

(Summary: Tosfos reconciles the Sugya in Oso ve's B'no with the Sugya here.)

, ( . ) ' ... ' ' ;'

(a)

Introduction to Question: In Perek Oso ve'es B'no (Chulin, Daf 80a & 80b) Rebbi Oshaya establishes the entire Mishnah there not like Rebbi Shimon ... ' until the Halachah 'Kodshim bi'Fenim (ha'Rishin Kasher u'Patur, ha'Sheini Sofeg es ha'Arbayim)'

" , " ... '

1.

Introduction to Question (cont.): 'Indeed, Rebbi Shimon elsewhere says 'Shechitah she'Einah Re'uyah, Lo Sh'mah Shechitah' ...

' , ; ' ?

2.

Introduction to Question (cont.): 'Because as long as the blood has not been sprinkled, the blood of the second animal is not permitted; Then why does he receive Malkos and why is it Pasul'?

, ...

3.

Introduction to Question (concl.): In other words, we ought to reckon the first one as if he had killed it, and the second one will then be completely Kasher?

? , , ' ' ?

(b)

Question: Why does he (Rebbi Oshaya) reckon it a Shechitah she'Einah Re'uyah? Granted, the Basar only becomes permitted after the Z'rikas ha'Dam, but why is it not considered sprinkled from the time of the Shechitah, based on the principle 'Kol ha'Omeid Lizarek, ke'Zaruk Dami'?

, ' ...

(c)

Answer #1: Rabeinu Tam therefore explains that Rebbi Oshaya does not hold of 'Kol ha'Omeid Lizarek, ke'Zaruk Dami' ...

(' :) ' ; , ... '

1.

Answer #1 (cont.): But like the Tana of the Mishnah there (Daf 81b) who says that 'Rebbi Shimon declares Paturr someone who Shechts an animal that is found to be a T'reifah, or someone who Shechts a Paras Chatas' ...

' " , " , " .' "

2.

Answer #1 (cont.): 'He does not render him Chayav on account of "Oso ve'es B'no", since it is a Shechnitah she'Einah Re'uyah, and he does not hold of "Kol ha'Omeid li'Fedos ke'Paduy Dami" '.

' , ' ' ' ; ' , , '' .

3.

Answer #1 (concl.): And the Gemara there queries this from the Beraisa 'Parah Metamei Tum'as Ochlin', and it replies that 'Paras Chatas is not a Mishnah/Beraisa'. But Rebbi Oshaya holds the opposite - the Mishnah is correct, but not the Beraisa of 'Parah'.

", ' ' ' , " ( : )...

(d)

Answer #2: Rebbi Oshaya holds that, since we do not say 'ke'Zaruk Dami' until the blood has been received in a cup, as is implied in the first Perek of Pesachim (Daf 13b & 14a)

...

1.

Reason: Since it is a Mitzvah to postpone the sprinkling until all the Dam ha'Nefesh has been received (Zevachim, Daf 25a) ...

, ' ' .

(e)

Answer #2 (cont.): Consequently, at the conclusion of the Shechitah, when not all the blood has been received, we will not say 'ke'Zaruk Dami'.

", ' , ', ' " " , .

(f)

Answer #3: Rebbi Oshaya holds that, even if it is ke'Zaruk at the time of Shechitah, since with the Shechitah alone the Basar is not permitted - but only because it is 'ke'Zaruk', it is not similar to "Tavo'ach Tevach ve'Hachein", in which case it is a Shechitah she'Einah Re'uyah.

", ' ' ( : ) ' ' ' " ? '

(g)

Proof: And this fits in nicely, since the Gemara at the beginning of 'ha'Menachos ve'ha'Nesachim' (Menachos, Daf 101b & 102a) asks on Rebbi Oshaya 'Indeed, Rebbi Shimon says elsewhere 'Kol ha'Omeid Lizarek, ke'Zaruk Dami? ...

, .

1.

Proof (cont.): Only the Sugya here considers it a Shechitah Re'uyah; and that is also the conclusion there.

' , ' ; , ...

(h)

Answer #3 (cont.): Similarly, just as the Gemara asks there on Rav Hamnuna, it could also have asked on Rebbi Oshaya, and likewise it could have given the same answer.

, , " .

1.

Answer #3 (concl.): In that, the reason that he does not establish the Mishnah like Rebbi Shimon is because according to Rebbi Shimon, the second one would not receive Malkos, since it is a Hasra'as Safek.

" ' ? '

(i)

Rabeinu Tam: Rabeinu Tam however, does not have the text 've'Sheini Amai Sofeg es ha'Arba'im, u'Pasul?' ...

, , , .

1.

Reason: Seeing as the second one is duly Pasul, since the blood of the first one having been sprinkled be'Hechsher, the Shechitah of the first one is a Shechitah Re'uyah, in which case the second one is Mechusar Z'man.

' ? ' ...

(j)

Rabeinu Tam (cont.): The correct text therefore is 'Amai Sofeg es ha'Arba'im?' - and no more ...

, . ...

1.

Rabeinu Tam (cont.): And the Kashya is based on the second one, as to why he receives Malkos, seeing as it is a Shechitah she'Einah Re'uyah ...

" , ? , .

2.

Rabeinu Tam (cont.): Because it is a Hasra'as Safek, since he may not sprinkle the blood. And seeing as there is no Mitzvah to sprinkle it, it is not considered 'ke'Zaruk'.

' , , ' ' '?

(k)

Question #1: The Gemara asks why it is not obvious that he does not receive Malkos, as how can he, seeing as it is a Hasra'as Safek?'

, , ? ... '

1.

Question #2: Moreover, it is forbidden to sprinkle the blood, in which case it is obvious that the Shechitah will not be concluded? And it replies 'Kodshim ... '.

' , .

(l)

Conclusion: Now the Gemara can only ask (from the Beraisa) on Rav Hamnuna, but not on Rebbi Oshaya.