KESUVOS 41 (30 Tishrei) - dedicated by Reb Mordechai Rabin (London/Yerushalayim) l'Iluy Nishmas his father, ha'Gaon Rav Gedalya Rabinowitz of Manchester, England (and in his later years, Bnei Brak, Israel). Hearing a Shiur of his was an unforgettable experience as his many Talmidim, both Bnei Yeshiva and Ba'alei Batim, can attest.

[41a - 45 lines; 41b - 43 lines]

1)[line 2]על פי עצמוAL PI ATZMO- based on his own admission

2)[line 4]תשלומי כפלTASHLUMEI CHEFEL (a thief's double restitution)

(a)If a thief surreptitiously steals an object from a fellow Jew, and is found guilty of the theft in court based on the testimony of valid witnesses, he must return the object (if it is still in its original state) or its value (if it is not) to its owner (Vayikra 5:23). In addition, the thief is obligated to pay the victim of the theft the value of the stolen object a second time. Restitution of the value of the stolen object is called "Keren," and the additional payment is known as "Kefel."

(b)Only a thief ("Ganav"), who steals surreptitiously, pays Kefel, and not a robber ("Gazlan"), who brazenly burglarizes and takes the possessions of others by force. Chazal explain that the Torah punishes a thief more stringently than a robber because of the disrespect he shows for the Creator by taking care to avoid the eyes of man, while not being bothered in the least by the eye of the One Above that is constantly watching (Bava Kama 79b).

(c)A thief does not pay Kefel unless he makes a "Kinyan," an act of acquisition, on the object that he steals (e.g. by lifting it up, bringing it into his own property, drawing it towards himself in a semi-secluded area, etc.). If he simply broke or ruined another person's object without making a Kinyan on it first, he is not considered to be a "Ganav" but a "Mazik" ("one who causes damage"), and he does not pay Kefel.

(d)A thief does not pay Kefel if he steals Shetaros (bills of ownership or promissory notes). Most Tana'im hold that a thief does not pay Kefel if he steals land or slaves (Bava Kama 117b).

(e)Kefel, like any other payment that involves over-compensation for a monetary loss, is considered a "Kenas" (penalty) rather than "Mamon" (compensation). As is true of every Kenas, a thief does not have to pay Kefel if he admits to his theft of his own accord. Only if witnesses testify to his guilt in court must he pay. If he admits to the theft of his own accord, and later witnesses testify to his guilt in court, the Amora'im argue as to whether or not he must pay the Kefel (Bava Kama 74b-75a — he is exempted from payment, according to the lenient opinion, only if his admission took place under specific circumstances). Until he is obligated to pay the Kefel in court, the thief is fully exempt from paying Kefel, and does not even have a moral obligation to pay it on his own accord (RASHBA Bava Kama 74b, see also RAMBAN in Milchamos at the end of the third Perek of Kesuvos).

3)[line 4]ותשלומי ארבעה וחמשהTASHLUMEI ARBA'AH VA'CHAMISHAH

See Background to 33:14.

4)[line 17]ניחא לה לדידהNICHA LAH L'DIDAH- if she prefers [to endure the bad reputation in order to obtain the Kenas payment]

5)[line 23, 25]פלגא ניזקא ממונאPALGA NIZKA MAMONA / KENASA HU

(a)An ox (or other animal) that gores one or two times is referred to as a Tam. The owner only pays half the value of the damages (Chatzi Nezek) that his ox causes through goring, with a maximum of the full value of the ox that gored. If the ox gored three times and the owner was informed and warned to guard his ox each time, the ox is termed a Mu'ad. If the ox damages from then on, the owner has to pay the full value of the damages (Nezek Shalem) that his ox causes through goring. He is held more liable since it is now evident that the ox's nature has changed to that of a harmful and injurious animal, and its owner therefore knows that he must guard it well.

(b)The Amora'im argue (Bava Kama 16a) as to why the Torah decreed that the owner of a Tam pays Chatzi Nezek and not Nezek Shalem. One opinion holds that by law he should pay Nezek Shalem because he did not guard his ox properly, but the Torah was lenient (since the ox has not been proven to be a harmful animal) and exempted him from half of the damages. According to this opinion, Chatzi Nezek is "Mamona" (compensation) and not "Kenasa" (a fine imposed by the Torah). The other opinion feels that by law the owner should be entirely exempted from paying the first three times that his ox causes damage, since oxen are relatively docile and do not have to be constantly watched to prevent them from causing damage. Even so, the Torah imposed upon him a fine of Chatzi Nezek, so that he should guard his ox more carefully in the future. According to this opinion, Chatzi Nezek is Kenasa and not Mamona.

(c)The distinction between the payment of Mamon and the payment of Kenas occurs when the owner of the ox admits, without the testimony of witnesses, that his ox caused damage. According to the opinion that maintains Palga Nizka Mamona, he must pay for half of the damages. But the opinion that maintains Palga Nizka Kenasa rules that he is exempt from payment since a person does not have to pay Kenas if he admits to his guilt of his own accord.

6)[line 26]שוורים לאו בחזקת שימור קיימיSHEVARIM LAV B'CHEZKAS SHIMUR KAIMEI- oxen are not considered docile and have to be constantly watched to prevent them from causing damage

7)[line 31]כי היכי דנינטריה לתוריהKI HEICHI D'NINTEREI L'SHOREI- so that he will guard his ox

8)[line 32]סימן היזיק מה והמית כללSIMAN HIZIK MAH V'HEMIS KLAL- this is a mnemonic device that describes the following four Sugyos with the opening words of the Sugyos, respectively.

1.Hizik refers to ha'Nizak veha'Mazik b'Tashlumin... (line 33);

2.Mah Bein Tam l'Mu'ad... (line 43);

3.v'Hemis refers to Hemis Shori Es Ploni... (Amud Beis, line 2);

4.Klal refers to Zeh ha'Klal, Kol ha'Meshalem... (Amud Beis, line 9)

9)[line 37]פחת נבילהPECHAS NEVEILAH- the depreciation in value of the carcass of the dead animal

10a)[line 43]שהתם משלם חצי נזק מגופוHA'TAM MESHALEM CHATZI NEZEK MI'GUFO- the owner of a Shor Tam only pays half the value of the damages that his ox causes, with a maximum of the full value of the ox that gored

b)[line 43]ומועד משלם נזק שלם מן העלייהMU'AD MESHALEM NEZEK SHALEM MIN HA'ALIYAH- the owner of a Shor ha'Mu'ad pays the entire value of the damages that his ox causes, and the payment is collected from his most valuable property

11)[line 44]תנא ושיירTANA V'SHIYER- the Tana taught certain Halachos in the Mishnah and left out other Halachos

12)[last line]מאי שייר דהאי שיירMAI SHIYER D'HAI SHIYER?- what else did the Tana leave out so that he should also leave this out?

13)[last line]חצי כופרCHATZI KOFER

See Background to 37:15.


14)[line 17]תיובתא והלכתאTIYUVTA, V'HILCHESA?!- [the Gemara has just brought] a refutation [of the opinion of Rav Huna brei d'Rebbi Yehoshua, that Chatzi Nezek is a fine,] and [it then rules that] the Halachah [follows his opinion]?!

15)[line 19]לא פסיקא ליהLO PESIKA LEI- it cannot be stated in an unqualified manner

16a)[line 22]האי כלבא דאכל אימריHAI KALBA D'ACHAL IMREI- a dog that ate lambs

b)[line 23]ושונרא דאכיל תרנגוליV'SHUNRA D'ACHAL TARNEGOLEI- and a cat that ate chickens

17)[line 25]ואי תפס לא מפקינן מיניהV'IY TAFAS LO MAFKINAN MINEI- and if he (the owner of the lambs or chickens) seized [the money or possessions of the owner of the dog/cat to cover his losses], we (Beis Din) do not force him to give it back

18)[line 26]אקבעו לי זימנאIKAV'U LI ZIMNA L'ERETZ YISRAEL- Set a [court] date for me in Eretz Yisrael (where Beis Din has the authority to charge Kenas) [and force the owner of the dog/cat to go there with me]

19)[line 27]משמתינן ליהMESHAMTINAN LEI (SHAMTA / NIDUY) - we put him in Niduy (excommunication)

(a)The minimum period of Niduy is thirty days in Eretz Yisrael or seven days in Bavel and elsewhere. If the Menudeh does not repent from his ways he is put into Niduy for a second thirty-day period. If he still does not repent, he is then put into Cherem. The laws of Cherem are much more stringent.

(b)No one may come within four Amos of the Menudeh, except for his wife and family. He is not permitted to eat or drink with other people, nor is he included in a Zimun or any other Mitzvah that requires a quorum of ten men. He may not wash his clothes, shave or take a haircut or wear shoes. Learning and teaching Torah, however, are permitted, as well as engaging in work. The last two are not permitted to a Muchram, who must learn by himself and engage in work to the minimum that will provide him daily sustenance. People may speak with the Menudeh or the Muchram unless Beis Din specifically prohibits it.

(c)Even if the period of Cherem or Niduy has ended, a person remains in Niduy or Cherem until he is permitted by three commoners or by an expert sage (SHULCHAN ARUCH Yoreh De'ah 334:27 and REMA ibid. 334:24).

20)[line 30]כלב רעKELEV RA- a bad-tempered dog; i.e. a dog that barks at anyone with which it is not familiar (and frightens people and causes pregnant women to miscarry) (YAM SHEL SHLOMO Bava Kama 7:45)

21)[line 31]"ולא תשים דמים...""V'LO SASIM DAMIM B'VEISECHA..."- "[When you build a new house, you must make a guardrail for your roof;] so that you shall not shed blood in your house [because the falling person will fall from it.]" (Devarim 22:8) - The Torah commands that a guardrail at least ten Tefachim high be built around the roof of one's home (or balcony) in order to prevent calamities. The guardrail must be strong enough to support the weight of a person who is leaning. Additionally, from the words "v'Lo Sasim Damim b'Veisecha" it is learned that one may not allow any dangerous situation to remain in one's house. A person may not leave an uncovered pit in his courtyard, or leave a weak ladder in his house. If he owns a bad-tempered dog, he also transgresses this Lav. (SEFER HA'CHINUCH #547)


22)[line 35]בתפוסהB'TEFUSAH- with a girl who was raped (using the language of the verse, "...v'Tafsah v'Shachav Imah..." — Devarim 22:28)