שבת, פרשת וישב
Bava Kama 36
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BAVA KAMA 36-37 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the ninth Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.
- Summary of the Daf
- 1. If two oxen are running after another ox and it was damaged and we don't know which ox caused the damage they are both Patur.
- 2. If both oxen belong to the same person he is Chayav however according to R. Akiva the Nizak is a partner in the Shor and therefore if one of the oxen is lost he may not collect from the remaining ox.
- 3. If two oxen that are a Tam are running after another ox and one ox was bigger than the other and we don't know which ox caused the damage, ha'Motzi me'Chaveiro Alav ha'Re'ayah.
- 4. If a Shor Tam gores four or five oxen the person who owns the first ox to be gored has priority to collect from the Mazik according to R. Yishmael.
- 5. If the Nizak grabs the Shor Tam that gored his Shor he becomes a Shomer Sachar and if the Shor gores again he is responsible for the Hezek.
- 6. According to R. Akiva if a Shor Tam gores four or five oxen the last Nizak is paid the full Chatzi Nezek and the remainder of the Shor is split up among the other people who were damaged along with the Mazik.
- 7. If someone hits his friend in the ear he must pay a Sela for the Boshes, Rebbi Yehudah says in the name of Rebbi Yosi ha'Glili that he pays a Manah.
- 8. Anytime a payment of Kesef is mentioned in the Torah it is a reverence to Kesef Tzuri, but a payment of Kesef that is d'Rabanan is a reference to Kesef Medinah which is 1/8 of Kesef Tzuri.
- Brief Insight
If two oxen are running after another ox and it was damaged and we don't know which ox caused the damage they are both Patur. If both oxen belong to the same person he is Chayav. However, according to R. Akiva the Nizak is a partner in the Shor and therefore if one of the oxen is lost he may not collect from the remaining ox. The Nimukei Yosef says even though according to R. Akiva if one ox is lost the Mazik is Patur, however if the Mazik gets rid of one of the oxen or causes it to be damaged he is Chayav to pay according to the opinion that one must pay for Dina d'Garmi. Even though the Beraisa stated previously that if the Mazik slaughters the Shor he is Patur that Beraisa is in accordance with the opinion that one is Patur for Dina d'Garmi, but we Pasken that Dina d'Garmi is Chayav.
- Quick Halachah
If an ox gores one ox after the other the first Nizak and the owner are like partners in the ox. What is the case? If an ox that is worth 200 Zuz gores an ox that is worth 200 Zuz and the Neveilah is not worth anything, the Nizak and the Mazik each take 100 Zuz of the Shor ha'Mazik. If the Shor gores again another ox that is worth 200 Zuz and the Neveilah is not worth anything the second Nizak owns 100 Zuz of the Shor and the first Nizak and the Mazik own 50 Zuz of the Shor. If the Shor gores again another ox that is worth 200 Zuz and the Neveilah is not worth anything, the third Nizak owns 100 Zuz of the Shor and the second Nizak owns 50 Zuz of the Shor and the first Nizak and the Mazik own 25 Zuz of the Shor. (Shulchan Aruch CM 401:1)
However, Tosfos says that the Nizak is only considered a partner in the Shor if he has it in his hands to bring witnesses and to be Zocheh in the Shor immediately, but if he cannot bring witnesses immediately he is not a partner in the Shor and he does not lose his share in the Shor as a result of the subsequent damages. (Sma)
According to R. Yishmael who holds that the Nizak is not a partner in a Shor Tam and the Mazik is a Ba'al Chov even if one of the oxen gets lost the Mazik still has to pay. Why is he obligated to pay if it gets lost? The Gemara stated previously that a Shor Tam is like an Aputiki and if an Aputiki is lost the Ba'al Chov may not collect from anything else!
- Author's Suggestion
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