Exemption when One Admits to a Fine

The Gemora (Bava Kamma 64) asks: According to the opinion (63b) who holds that one verse teaches us about the thief himself and the other deals with a custodian who alleges that the object he was watching was stolen and we find that he stole it himself, and he derives the law about the thief himself from the verse, “If the thief will be found,” what does he derive from the verse, “If it will be surely found?”

The Gemora answers: He understands the verse is required for the teaching of Rava bar Ahilai, for Rava bar Ahilai says: Why does Rav say that if a person admits to a fine (which a person by Torah law does not have to pay based on his own admission) and then witnesses come and testify to his guilt that he is still exempt from paying? This is as the verse states, “If it will surely be found.” This teaches us that if it was first revealed with witnesses he should then be decided as guilty by the judges. This excludes a case where he admitted his guilt. [He will be exempt from paying the fine even if witnesses come later.]

Does this ruling apply only in the Beis Din in which the person admitted to the fine, or does it apply even where witnesses testify in a second Beis Din against him?

The Ketzos Hachoshen (350:2) writes that when one is exempt from liability after admitting to a fine, it is not as if the obligation is cancelled; rather, the halachah is that Beis Din cannot obligate him to pay after he has incriminated himself. Therefore, the exemption applies only in the Beis Din in which he admits. If, however, he admitted in one Beis Din and afterwards he was sued in a second Beis Din and witnesses testified against him, the second Beis Din may obligate him to pay the fine. And similarly, if witnesses testify against him in one Beis Din but they did not complete the judgment, and then he is taken to a second Beis Din where he admits to the fine, he will be exempt from paying, since witnesses had not testified in the Beis Din where he admitted, and the Beis Din where he admitted cannot make him liable, for he incriminated himself.

The Nesivos Hamishpat disagrees and maintains that once a person admits to a fine in one Beis Din, he no longer can be obligated to pay even if witnesses testify against him in a different Beis Din. He also holds that in a case where witnesses testify against him in one Beis Din but they did not complete the judgment, and then he is taken to a second Beis Din where he admits to the fine, the second Beis Din cannot obligate him to pay, but it is not because the halachah of admitting is dependent upon Beis Din. Rather, it is because that as long as a verdict has not been reached, it is still regarded as a fine, and therefore, if he admits before a second Beis Din, they cannot obligate him to pay, for he has incriminated himself. However, if witnesses will testify against him in the second Beis Din, he will be liable to pay.

The Nesivos evidently holds that once he admits to the fine and is exempt from paying, the debt is completely cancelled and a second Beis Din cannot make him liable to pay any longer.

Read more!

Gematriya

Rabbi Chiya bar Abba (Bava Kamma 63) said in the name of Rabbi Yochanan: If a man puts forward a claim of theft (and he swore to that effect) regarding an object which had been found by him (and witnesses testify that he has stolen it himself), he must pay double payment, since it is written: Al kol aveidah asher yomar (on any lost item which he says).

The Gemora cites the Scriptural source for this halachah: Since it states: If the thief is not found ..., we conclude that the entire verse is discussing a custodian who falsely alleges theft.

Rava (elaborating on the braisa) explains the verse as follows: If it is not found as he said, but rather, he himself stole it, he must pay the double payment.

The Baal HaTurim notes that the numerical value of the words “im lo yimatzei ha’ganav” (if the thief is not found) is the same as “hu atzmo ganav” (he himself stole it).

Read more!

Placement of the Chanukah Candle

The Shulchan Aruch (H”M 418:12) and the Rambam (Nizkei Mamon 14:13) rule against Rabbi Yehudah, and hold the store owner liable for his Chanukah candle. The reasoning given is that although the store owner had license to put the candle outside, to fulfill the mitzvah of Chanukah, he still is responsible to ensure no damage comes from it.

The Gemora (Bava Kamma 62) discusses whether Rabbi Yehudah’s exclusion of liability in the case of a Chanukah candle indicates that it should be below ten tefachim. The Gemora concludes with a limit of twenty amos. There is discussion in the poskim about reconciling the two measures. The Shulchan Aruch (O”H 671:6), following the Rosh, rules that the optimum placement (l’chatchila) is below ten tefachim, but the absolute limit (b’dieved) is twenty amos. The Gr”a explains that even though the Gemora deflected the proof from the Mishna, we follow the straightforward implication of the Mishna. The Rambam (Chanuka 4:7) only mentions the measure of twenty amos. The Rambam understood that the two measures are a dispute, and ruled like the opinion of twenty amos. The Rambam therefore could have held the store owner liable simply because he should have placed the candle higher, but nonetheless made the more fundamental statement that performing a mitzvah does not exempt a person from damages. This statement is a more general one, and has implications in other cases, as the Gr”a points out (H”M 418:28). The Shaarei Teshuva (O”H 761:8) points out that the Chachamim and Rabbi Yehudah’s dispute, as detailed in other sources, does not relate to different opinions on the location of the Chanukah candle, but rather on this fundamental question of exemption due to religious activity.

Read more!

Taiku in Monetary Halachah

Our Gemora (Bava Kamma 62) contains two instances of Taiku – an unresolved question. Taiku’s are very common throughout Shas, and are generally considered a full fledged doubt when deciding halachah. However, when there is a taiku in issues of monetary halachah, the Rishonim are of various opinions how to rule. Rav Hai is quoted by the Rosh (paragraph 16) and Tosfos (62a, Asu), as saying that in any monetary case that is left as a taiku, the two parties split the money in question. In our case, that would mean that the alleged damager would pay half the claimed amount, after the victim swore. The Rosh, Rif, and Ri, however, hold that no money can be extracted in a taiku case, since money can only be taken from someone with a proof. The Rambam (Chovel uMazik 8:7) holds that money cannot be extracted, but if the victim seizes the money, we do not take it away from him. The Shulchan Aruch (388:1) rules like the Rambam.

Read more!

Takkanas Nigzal

The Gemora (daf yomi - Bava Kamma 62) lists a number of diverse cases where the Sages applied the rule for the robbery victim, without clarifying in exactly what circumstances the rule was applied, nor why. There is discussion in the Rishonim about what the parameters for these cases are. Rabbeinu Tam (Tosfos 62a asu) states that the debate in the case of an informer is only when the informer claims with certainty that he did not cause as large a loss as the victim claims. However, when the informer is uncertain, then there’s no question that the victim can use the rule of the robbery victim, and collect with an oath. The Ri, on the other hand, states that the Gemora is currently following the discussion of applying the robbery victim rule to fire damages of embedded items. In that case, the damager obviously has no knowledge how much he damaged, so similarly the discussion by an informer must be also in the case of the informer not knowing how much damage he caused.

According to the Ri, the application of takanas nigzal is only due to the fact that the damager doesn’t know how much the damage is. If the damager claims with certainty a lesser amount, the usual procedure must be followed, and the victim must bring proofs. The Gemora is only using the case of nigzal as a borrowed term, to apply in a case where the damager cannot counter claim with certainty. However, Rabbeinu Tam applies the takanas nigzal even to cases where the damager claims a lesser amount with certainty. The application must be a more direct analogy to the robbery case. In the robbery case, the robber is not able to swear, since we punish his status as a robber by invalidating his oath. Therefore, the Sages placed that oath on the victim, to allow him to collect. Similarly, Rabbeinu Tam holds that one who lights a fire – a gross negligence, and a very direct form of damage – and an informer – a very severe and dangerous form of damage – are punished for their crime by allowing the victim to collect with an oath. Rabbeinu Tam would therefore equally apply the takanas nigzal to any fire damages, even in the simple non tamun case that the Chachamim discuss. [See the Rosh paragraph 16, who mentions both reasons by the case of fire.]

The Pnei Yehoshua points out that the Gemora flow seems to indicate Rabbeinu Tam’s approach is correct. The Gemora concludes the discussion of takanas nigzal with a seeming non sequitur – the distinction between a chamsan and gazlan. The Pnei Yehoshua explains that the Gemora was discussing different types of criminals, and the sanctions put on them by takanas nigzal, and therefore concluded with a statement about two types of criminals who cause another person monetary loss.

Read more!

Burning Hidden Things

Halachah

The Shulchan Aruch (H”M, 418:13) rules like the Chachamim (Bava Kamma 62), that one who burns a fire is not liable for embedded items (tamun). As the braisa details, this is only true if the fire was lit in one’s own property, and then spread to someone else’s. A fire lit in someone else’s property obligates the burner in the damages for embedded objects. This is due to the fact that the verse which excludes tamun is in the basic case of a fire described in the Torah – when a fire exited one’s property, and then damaged. However, liability for tamun in the case of a fire lit elsewhere is only for items normally embedded – and for which the burner should have considered may be burned. Therefore, in a field, he is only liable for farm implements, whereas in a house, he is liable for all items.

Which Cases?

The Gemora earlier in B”K (22-23), in the topic of whether a fire causes liability as the burner’s arrows or property, discussed the case of tamun. The Gemora stated that according to Rabbi Yochanan (whose opinion is the halachah), who holds that a fire is like the burner’s arrows, there seems to be no reason to exclude tamun: if a person shot an arrow, he’s liable for any damages, even on embedded items. Therefore, the Gemora states that Rabbi Yochanan only excludes liability for tamun when kalu lo chitzav – the direct effect of the fire has stopped (e.g., by being blunted by a wall, which then collapsed). In that case, the liability is only for the property aspect of the fire, since he should have put up a firewall to stop it from spreading. Even though Rabbi Yochanan holds that a fire causes liability as an arrow of the burner, Rabbi Yochanan agrees that a fire can also cause liability as the burner’s property, and would be considered so if the burner could have stopped the fire and didn’t. Therefore, the Shulchan Aruch rules that the exclusion of tamun only applies to a fire which was blunted by a wall.

The Gr”a (418:33), however, claims that this understanding of the Gemora on 23 is incorrect, and is not the way the Rambam and the Rif read it. Instead, the Gr”a says that when the Gemora clarified that Rabbi Yochanan agrees to a property aspect of a fire, the Gemora was reversing the limitation of tamun to kalu lo chitzav. The Gemora’s original question was how a person could be exempt for paying for tamun damages. The Gemora here states that a burner is liable for tamun when he lights the fire in the grain owner’s property. However, just as when someone fires an arrow, wherever it goes is considered his action, when someone lights a fire anywhere, wherever it goes should be considered his lighting, and therefore, all cases of tamun should be liable. The Gemora on 23 first answered that when the wall blunted the fire, it’s not an arrow anymore. However, the Gemora then reverses this, and states that a fire is different than an arrow, because a fire can be interrupted in mid flight. Therefore, the verse’s exclusion of tamun is only when the fault of the burner was simply not stopping the fire. The Gr”a therefore disputes the exception that the Shulchan Aruch places on the limitation of tamun, and instead holds that the burner of a fire is always not liable for tamun, as long as he lit the fire in his own property, and it spread elsewhere. [See Gra on B”K 23, note 1 for a different reading of the Gemora there.]

Grain coating

The Shitah quotes Rabbi Yehonosan who points out that we must explain that the case of a barley pile coated in wheat is a case where the field owner only allowed barley. If this would not be the case, there would be no reason to exempt him from paying for the wheat covering, which he allowed and saw. If so, the need for this case – even though we already learned the case of bringing a full wheat pile when only allowed to bring in barley – is to teach us that if the owner only allowed barley, he is not even obligated in the small difference that a wheat covering adds.

Read more!

Evaluations, Deducting the Food and Black Shoes

Subscribe to the Daily Daf Yomi Summary here.

Evaluation

The Gemora (Bava Kamma 59a) explains Rabbi Yishmael to mean that we evaluate the damages based on the best of anticipation. How is this evaluated? It is the value of the field at the time that the produce would have matured (at the harvest time).

Reb Meir Simcha writes that although we learned that if an animal damages in a public domain through shein or regel, he is liable to pay for what he benefitted, this is not a compensatory payment for the damages, for the Torah teaches us that one is exempt from paying for shein or regel in a public domain. He is paying, not because he is a damages; but rather because he is regarded as a debtor to the owner of the field. Accordingly, he would not pay according to the anticipated value of the produce at the time of the harvest either, for that is a halachah which applies only by a damager.

Deducting the Food

Rabbi Yosi said: If one caused a woman to miscarry, deduct the fees of the midwife (that the husband would have paid in order for someone to help his wife with the delivery). [The defendant saved the husband money which he potentially would have paid.] Ben Azzai says: Deduct (the extra) food (which the husband would have been required to provide for her during the pregnancy).

The Gemora notes: The one who says to deduct the fees for the midwife would certainly deduct food, but the one who says to deduct the food would not necessarily hold to deduct the fees for the midwife, as the husband might say, “My wife is proficient at giving birth and does not need a midwife.”

The Rashba quotes Rabbeinu Tam that the food we are discussing is the food that the woman would eat after the birth of her child, for then she requires special sweet food.

Another explanation is that we are referring to the sustenance of the child, which the father would have been required to provide.

Accordingly, the Raavad explains that we would deduct the cost of the child’s food for six years, for it is until that age that the father has an obligation to provide for his child.

The Rashba asks that if so, it would emerge that the cost of the food (for six years) would be more than the worth of the child, and what would the attacker pay?

Black Shoes

The Gemora relates an incident: Eliezer the young one once put on a pair of black shoes (which was the common practice among mourners) and stood in the market place of Nehardea. When the officers of the house of the Exilarch found him there, they asked him, “Why are you wearing black shoes?” He said to them, “It is because I am mourning on the destruction of Yerushalayim.” They asked him, “Are you such an important person (like a Torah scholar) that you would mourn over Yerushalayim?” Considering this to be haughtiness on his part, they took him and placed him in prison.

Tosfos comments that it would appear from this story that it was not the norm to wear black shoes.

It is also apparent like this from a Gemora in Taanis (22a), where Rav Broka asked a Jewish prison warden: Why don’t you have tzitzis on your garment and why do you wear black shoes, unlike other Jews?” The man answered, “I mix with non-Jews and want to conceal my Jewish identity from them. In this way when I hear that the government is plotting against the Jews, I run to tell the rabbis that they may pray and nullify the decree.”

Tosfos challenges this from a Gemora in Beitzah (15a) that indicates the opposite. The Mishna rules that it is forbidden to send a white shoe to someone during the Intermediate Days of Yom Tov because we are concerned that an effort will be made to blacken them in a manner that is forbidden. Evidently, it was common practice to wear black shoes!?

Rabbeinu Tam answers that Jews did wear black shoes, but the shoelaces were white. Eliezer the young one added black laces to his black shoes as an expression of mourning and the prison warden did the same in order not to be recognized as a Jew.

Tosfos concludes that this is the reason why the Gemora in Sanhedrin (74b) rules that during a time when the idolaters are trying to force the Jewish people to assimilate and convert to their religion, it is even forbidden to wear shoelaces like those of non-Jews, and it is obligatory for a Jew to die rather than comply with their oppressors instructions to the contrary. This is further proof that the Jewish people’s shoelaces were of a color different than that of their non-Jewish neighbors.

Read more!

Chasing Away a Lion

By: Rabbi Avrohom Adler

Subscribe to the Daily Daf Yomi Summary here.

The Mishna had stated: If it fell into a garden and benefitted from it, he must pay for what it benefitted.

Rav said (Bava Kamma 58a) that the Mishna’s ruling does not only apply if the animal eats, and therefore pays what it benefited. One might think that if it fell and was struck by the produce (reducing the impact of the fall) that the produce which was damaged should be akin to a case of chasing away a lion from his friend’s possessions (for the owner of the produce is doing a mitzvah by saving his fellow’s animal from injury), and therefore he should not even have to pay what he benefited. This is why the Mishna says that even in a case where the animal fell, the owner must pay for its benefit.

The Gemora asks: Indeed, why don’t we say that this is akin to a case of chasing away a lion from his friend’s possessions (where the friend does not have to pay for the chasing)?

The Gemora answers: The case of chasing away the lion was done (knowingly and) willingly, unlike the produce acting as a cushion that was not done with the consent of the owner of the produce.

Alternatively, the Gemora answers: When one chases away a lion, he does not incur a loss, as opposed to this case where he did incur a loss (as his produce was crushed by the animal’s fall).

Tosfos rules that the lion chaser is not entitled for compensation only in cases where it is not definite that the lion will cause a loss, for instance, where the lion is far away from the sheep, but he is concerned that it might come closer. However, if he would chase away the lion when the damage is imminent, for instance, where the sheep is already in the mouth of the lion, he is entitled for compensation.

Tosfos cites several proofs for this. One of the proofs is from a Gemora in Bava Metzia (31b) which rules that one who is returning a lost article is entitled to be compensated for his time. This, explains Tosfos, is because of the fact that if the finder will not get involved with the lost article, it will cause a definite loss to the owner.

The Rashba disagrees with the proof: He says that the only time he is not entitled to be compensated is if he gets involved willingly. By the case of returning a lost article, he has no choice, for the Torah commands him to pick it up and return it. The Torah does not instruct people to lose their own money in order to return someone else’s.

Read more!

Laws of Heaven

By: Rabbi Avrohom Adler

Subscribe to the Daily Daf Yomi Summary here.

The Gemora (Bava Kamma 56) cites a Mishna: If one sends out a fire in the hands of a deaf-mute, an imbecile or a minor (and it consequently burned someone’s haystack), he is not liable to pay according to the laws of man, but he is liable according to the laws of Heaven. If, however, he sent out the fire in the hands of a competent person, the competent person is liable to pay for the damages.

It would seem that in the case where the sender sent the fire with a competent person, the sender is not liable at all, even under the laws of Heaven!

The Ram”a (C”M: 32:2) rules that if one sends out false witnesses to testify against someone, and they cause that fellow a loss, the sender is not liable at all, even under the laws of Heaven. This is because we say that there cannot be a shliach to commit a transgression.

The Sha”ch disagrees and maintains that the sender will be liable to pay under the laws of Heaven. He explains the distinction between the two cases. The sender will always be liable under the laws of Heaven. The only reason that the sender is not required to pay at all in the case of the fire is because once the competent person is liable to pay, there is no place for the sender to be liable as well!

Read more!

Tov in the Luchos

By: Rabbi Avi Lebovitz

Rabbi Chanina ben Agil asked Rabbi Chiya bar Abba: Why do the first Commandments not have the word “good” in it, and the second Commandments do have the word “good” in it?

He replied: Before asking me why it says “good,” ask me if it says “good,” as I don’t know whether it says this or not. Go ask Rabbi Tanchum bar Chanilai, who used to learn from Rabbi Yehoshua ben Levi, who was an expert in Aggadic teachings.

When he went to Rabbi Tanchum, Rabbi Tanchum said: I did not hear anything from Rabbi Yehoshua ben Levi about this matter. However, Shmuel bar Nachum, the uncle of Rabbi Acha bar Rabbi Chanina, and some say the maternal grandfather of Rabbi Acha bar Rabbi Chanina, said: Being that the first ones were going to be broken (by Moshe, they did not contain the word “good”).

The Gemora asks: Why is this a reason that they should not contain the word “good”?

Rav Ashi said: Heaven forbid, this would mean that goodness would stop for the Jewish people.

Rashi explains that the Gemora is making reference to the term “tov” in the mitzvah of honoring one’s father and mother.

The Maharatz Chayus is bothered by the very difficult question: How is it that the Tannaim were not familiar with the text of the Ten Commandments, until it was confirmed by Rabbi Tanchum? Although Tosfos in Bava Basra writes that there were some who were not fluent in the Scriptural verses, it seems strange to say that they didn't know the Aseres Hadibros!?

The Maharatz Chayus suggests that the discussion was whether the Aseres Hadibros that are recorded in Parshas Yisro was the text on the first set of luchos, and the Aseres Hadibros in V’eshchanan are the second set of luchos. Rabbi Tanchum had a tradition that it was in fact the case, to which the Gemora finally explains that it now makes sense that the luchos which were to be broken didn't contain the term “tov.”

The Torah Temima (Devorim 5:16) offers another approach. The Gemora is making reference to a Medrash where Hashem says to Moshe that He is going to give a second set of luchos, to which Moshe reacts with joy by saying “Tov li toras pichah me’alfei zahav v’chasef” – Torah is more precious to me that thousands of gold and silver.

Why did he only express this happiness by the second luchos, and not the first? On that the Gemora explains that since they would be broken, it would be inappropriate to say that about the first set of luchos.

However, based on the conventional understanding of the Gemora, it certainly seems to indicate that the Aseres Hadibros of Yisro were the first luchos, and V’eschanan the second. Based on this, we can make another observation. In the second luchos, by Shabbos and honoring one’s father and mother, it says “like Hashem your God commanded you,” which Rashi interprets as a reference back to Marah where the water was bitter. Why is this reference specifically in the second luchos and not the first?

The Chasam Sofer in Parshas Beshalach explains that Hashem taught us in Marah that he is our personal doctor – “ki ani Hashem rof’echah.” Unlike a physician who just heals the sick, Hashem is our "family doctor" who is just as interested in providing us with preventive medicine as He is with remedies for illness. In the second luchos, Hashem wanted to remind Klal Yisroel that committing transgressions (such as the golden calf) forces Him to bring upon us illnesses, and then He demonstrates to us that He has the power to heal. He much prefers avoiding illness in the first place by our commitment to His Torah.

Read more!

Cup Should be Whole

By: Rabbi Avrohom Adler

Subscribe to the Daily Daf Yomi Summary here.

The Gemora (Bava Kamma 54) explains: It is written: And the carcass shall be his. This implies (that the pit owner would be liable to pay for) all things that are subject to death.

The Gemora asks: If so, whether according to the Chachamim who exclude utensils or according to Rabbi Yehudah who includes utensils, are utensils objects that are subject to death?

The Gemora answers: It may be said that their breaking is their death.

It is written in the Sefer Hayashar in the name of the Gaonim that a cup of blessing (the cup of wine over which Birchas Hamazon is recited) must be whole; it cannot be broken. It cannot be chipped at all. This is what the Gemora Brochos (51a) means when it states that the cup of blessing must be chai (alive). “Alive” means that it is whole. This is based upon our Gemora which states that the breakage of a utensil is equivalent to its death.

The Olas Tamid, however, disagrees and holds that as long as the cup can stand on its base, it is qualified to be used, save for the fact that there is a mitzvah to beautify the mitzvah (and because of that, it is preferable not to have any cracks in it whatsoever).

Read more!

Insights to Bava Kamma Daf 53

Halachic conclusion in Rav and Shmuel’s dispute

Partners in damage

Half vs. Full damage

Filling in missing damages

Pesulei Hamukdashim


Halachic conclusion in Rav and Shmuel’s dispute

The Rif says that even though we generally hold like Shmuel in monetary halachah, in this case we hold like Rav, since the Gemora brought a braisa that supports Rav, and the Gemora had a number of Amoraim who tried to explain the other braisa according to Rav, indicating they also agree with Rav.

The Rashba, however, states that this is not enough to make an exception to the rule that the halachah is like Shmuel in monetary issues.

The Rambam (Nizkei Mamon 12:18) has an unclear opinion on this case. There are varying texts, but our standard text states the following categories:
1. If the ox fell into the pit forwards, the owner of the pit is liable
2. If the ox fell into the pit backwards, the owner of the pit is not liable
3. If the ox fell forward outside of the pit, the court doesn’t get involved, but if the ox’s owner seized assets of the pit’s owner, we don’t take them away
4. If the ox fell backwards outside of the pit, the owner of the pit is not liable

See the Raavad and Lechem Mishneh for a lengthy discussion of the correct text and explanation of the Rambam’s position on this dispute.

The Shulhan Aruch (HM 410:31) rules like Shmuel.

Partners in damage

Chachamim’s opinion

The Gemora discusses Rabbi Nassan’s opinion at length, but does not offer much detail on the Chachamim’s position. The Rishonim discuss how much damage the owner of a mu’ad ox that pushes an ox into a pit (the first braisa) pays according to the Chachamim. The Re’ah states that he only pays half, as he only did half damage. Rashi, however, states that he pays full damages, since the mu’ad ox was the only damager, according to Chachamim. However, in the case of two oxen that damage together, each would only pay half, even according to the Chachamim, as they both actively damaged.

Half vs. Full damage

Tosfos (53b, Ha k’rabanan) points out that the continuation of the Gemora on 53b seems to indicate that the correct understanding of Rabbi Nassan is that both damagers do full damage. Tosfos proves this from the fact that the Gemora applies Rabbi Nassan to the case of two oxen, one of which is not liable, due to its pesulei hamukdashim status. If Rabbi Nassan only obligated the owner of the pit disproportionately because the carcass was found in his pit, this would not apply to two oxen that jointly damage.

Hagahos Maimoni (Nizkei Mamon, 12:3) brings a responsum from R. Meir Mirotenburg who distinguishes between an ox and pit partnership, where the pit was the junior passive partner, and two oxen, where both are active partners. Even if the correct understanding in the case of the pit would be half damages, in the case of two oxen, both would be fully responsible.

A person’s contribution

If a person and ox kill together, the Gemora states they are both liable. Tosfos (53b L’inyan kofer) asks from the Gemora in Sanhedrin, where all agree that if ten people hit a person with ten sticks simultaneously, and he dies, that none are liable. In this case as well, why not say that the person and ox are not liable, since they killed together?

Tosfos answers that the case here is that they did it sequentially.

The Rashba answers that in Sanhedrin, each person did a separate action, the combination of which killed the person, and therefore no one is liable. Here, however, both the person and ox pushed the person in one act, and therefore both are liable.

Tosfos (53b Shor) raises the issue of a person’s intent. If a person intended to damage the ox, the owner of the pit – who was passive in the damages – should not be liable, just as an owner of a fire would not be liable if someone intentionally burned an object in a fire. However, if the person did not intend to damage, how can he be liable for the four non-nezek categories of damages, including embarrassment (boshes), since boshes is only incurred when done intentionally?

Tosfos answers that the person didn’t intentionally push the person in, but knew about it (and presumably was pleased) before the person fell into the pit. He is therefore liable for boshes.

The Shita Mekubetzes answers that it’s possible for the person to have intent to embarrass the pushed person, but not to have pushed him into the pit.

The Rashba states that the four categories are including nezek, but not including boshes. Even though the ox is liable for nezek, it is not liable for the others, and therefore the Gemora states it’s not liable for the four as a whole.

The Ketzos Hachoshen discusses what the halachah is in a case where the person, along with an ox, intentionally pushed an ox into a pit. On the one hand, the owner of the pit can claim (as explained in the Tosfos above) that he is not a partner to the person, since the person did it intentionally. On the other hand, the ox’s owner can claim that the pit is a partner to his damage, as is always the case when an ox pushes another ox into a pit. Similarly, the person can claim that the ox is a partner to the damages, even though he did it intentionally. He suggests that the person must pay half, and the ox and pit’s owners each pay one quarter, but says that from Tosfos it seems that whenever the person intentionally damaged, he pays all the damages himself.

Filling in missing damages

The Tur (HM 410) quotes the Rema, who extends the opinion of Rabbi Nassan to a case where two parties damaged, both are liable, but one cannot pay or has run away. Even in this case, states the Rema, the remaining party must pay the full damages.

The Tur disagrees, and states that Rabbi Nassan only said the partner must fill in damages if the other damager is not liable for some halachic reason. If, however, he’s liable, but just is not technically paying, this does not obligate the other partner. This has ramifications nowadays for a tam that pushed an animal into a pit. Both parties are responsible, but nowadays, we don’t collect tam damages, as they are a fine. According to the Rema, the owner of the pit would have to pay full damages.

The Taz quotes the Maharshal, who discusses a case where partners (one Jewish and one non-Jewish) overcharged a Jewish customer. Both partners are liable, but only the Jewish one is subject to our court system. Even according to the Tur, the Jewish partner will be fully liable. This is due to two distinctions from the Rema’s case:

1. In the Rema’s case, the partner who is not paying could theoretically pay, if he returned and had money. However, in this case, the non-Jewish partner will never pay.
2. In this case, the Jewish customer relied on the Jewish partner to take care of not overcharging him, and therefore the full liability falls on him.

However, the Maharshal adds that if it’s a case that would make the non-Jewish partner liable, even in the secular court system, then this becomes the same as the Rema’s case.

See Rabbi Akiva Eiger on this daf for a discussion of two false witnesses who recant, one of which has no money to pay.

Pesulei Hamukdashim

The R’ah points out that the phrase pesulei hamukdashim on 53b is used to mean two different types of animals. In the first instance, where the ox that’s pesulei hamukdashim is the damager, it means a blemished sacrifice, which has not yet been redeemed, and therefore, he is not liable for damages. However, in the second instance, where the ox that’s pesulei hamukdashim falls into the pit, it means a blemished sacrifice, which has been redeemed, but nonetheless is not eligible for damages since the carcass is unusable, since redemption is only to enable human consumption of the meat.

The Shita Mekubetzes raises an interesting question from the statement of the Gemora that a pit’s owner only is liable if the owner of the ox can use the carcass. If so, why do we need a special exclusion for the case of a person killed – the corpse is not usable for anything, since its benefit is forbidden?

The Shita quotes the Ritz’s answer, which is that the exlusion of “v’hames yihyeh lo” is only applicable to the items explicitly mentioned in the Torah – animals – and not to other items logically learned from them. See the Shita for other answers.


[END]

Read more!

Wishing to be Devout

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

Rav Yehudah says (Bava Kamma 30b) : If someone wants to be pious he should fulfill the laws discussed in Tractate Nezikin. Rava says: He should fulfill that which is written in Pirkei Avos (Ethics of our Fathers). Some say: He should fulfill the laws of Tractate Brochos.

The Orach Yesharim explains: The Mishna in Avos (1:2) states: Shimon HaTzadik was from the remnant of the Men of the Great Assembly and he used to say: On three things the world stands on Torah, Service (Avodah), and Acts of Kindliness (Gemilas Chassadim).

Two of these are matters that are between man and Hashem. They are: Torah and Tefillah. Acts of kindness is a matter that is between one man and his fellow. Rav Yehudah is teaching us that in order to be regarded as a devout person, it is not sufficient to be pious in matters that are between man and Hashem. One must be scrupulously ethical in matters that are between his fellow man as well. And quite possibly, he is telling us that a person must first be heedful of respecting his fellow man, and only then can he elevate himself further by fulfilling those laws that govern the relationship between man and Hashem.

In his sefer, Boruch She’amar, Harav Boruch Epstien asks: Why is it that by observing these three areas, one is regarded as devout? Pirkei Avos deals with common sense, practical, and intelligent behavior. Observing the laws of Brochos is also not an issue of piety, since the Gemora (Brochos 35a) states: One who eats without a brocha is robbing from the Almighty." And finally, civil laws that relate to Nezikin, damages, are certainly not issues of piety, but rather of civil obedience!?

He answers, as explained by Reb Hershel Solnica that the Gemora has a deeper and more subtle meaning. In Pirkei Avos, we are taught: A fence to wisdom is silence. This seems to be a matter of common sense. However, a Jew with a soul understands this to mean that not only is silence golden, but words must be measured and be dignified. Too many pious, religious, and fine Jews lose control of their mouth and lavish its use with Lashon Hara, idle talk, and abusive and vulgar language. Brochos is not simply thanking God for what we eat and what we have, but saying that we appreciate these gifts, for were it not for the grace of God, we wouldn’t be able to survive an hour.

Observing civil law – Nezikin - implies more than merely not damaging another’s possessions. It implies that we should consider the money or property of your neighbor as if it were yours. We don’t merely avoid breaking another’s objects. Rather, we care and respect it as we respect our own. These attitudes constitute the core of the soul of a Jew. They do not constitute halachah and they are difficult to concretize, but they are clear to the sensitive eye and heart.

Read more!

As if it is in his Possession

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

Rabbi Elozar said in the name of Rabbi Yishmael (Bava Kamma 29b) : There are two things which are not legally in one’s possession and the Torah views them as if they are in his possession. One thing is a pit that one digs in a public domain, and even though he does not own the public domain, he is responsible for any liability that occurs regarding the pit. Similarly, one cannot have benefit from chametz after the sixth hour on the fourteenth of Nissan, and the chametz is rendered as ownerless, but one who retains chametz after the sixth hour is considered to have violated the transgression of owning chametz when it is prohibited to own chametz.

Rashi seems to say that the chametz is regarded as his only in the sense that he is held accountable for violating the two commandments of “chametz being seen in his possession” and “leaven being found in his house.” However, he does not actually own the chametz.

Similarly, the Meiri writes with respect to the pit. If there is water in the pit, everyone is allowed to draw water from there. The digger of the pit cannot prevent them from drinking the water by saying that he is the owner, for the Torah considers him the owner only with respect to liability for the damages.

The Chasam Sofer writes that if one would have chametz on Pesach and on Pesach, he would sell it to a gentile, he still would be liable, for the Torah considers it his. And so too, the halachah would be by a pit – if a gentile would acquire the pit, it would still be regarded as the digger’s pit with respect to liability for its damages.

The Noda Beyehudah disagrees and maintains that if without the prohibition of chametz, it would not be in the Jew’s possession, we do not say that the Torah treats it as if it is in his possession.

Read more!

Like "his Arrows"

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

Rabbi Yochanan said: One is liable on the damage caused by his fire on account of it being “his arrows” (it is as if he shot out an arrow which caused damage).

The Nimukei Yosef explains that this is why one is permitted to light candles Friday afternoon even though they will be burning on Shabbos; since the candles were lit from before Shabbos, which is when he shot the arrow.

The Minchas Chinuch explains further: According to Rabbi Yochanan, he is liable for the moment that he set the fire ablaze. Just as one who shoots an arrow is liable for the shooting of the arrow even though the damage which occurs afterwards is now unavoidable; so too it is with respect to one who lights a fire. Accordingly, a halachah would emerge as follows: If one lit a fire and before it had a chance to do damage he died, the inheritors would be obligated to pay (from the properties of the deceased), since the reason for liability was already completed while the lighter was still alive. This is only true if “his arrows” did not cease (when there was a fence preventing the fire from spreading, and the fence fell down after he died). However, if “his arrows” ceased before he died, they will be exempt from liability. As long as the heirs did not know about the fire, they would not be liable, for if they did know about it, and they could have prevented the fire from damaging, they will be liable, for it is their property that is damaging.

Read more!

Actions or Results

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

Rabbi Yochanan (Tannis 29a) said as follows: Were I living in those days, I would have ordained the fast for the tenth of Av; for on that day the greater part of the Beis Hamikdosh was burned. The Chachamim maintained that the day when the calamity began should be observed as a fast-day.

The Kotzker Rebbe asked from that famous Nimukei Yosef in Bava Kamma. Rabbi Yochanan said: One is liable on the damage caused by his fire on account of it being “his arrows” (it is as if he shot out an arrow which caused damage). The Nimukei Yosef explains that this is why one is permitted to light candles Friday afternoon even though they will be burning on Shabbos; since the candles were lit from before Shabbos, which is when he shot the arrow. According to this, why is Rabbi Yochanan stating here that he would have declared the fast on the tenth of Av if the fire started on the ninth?

The answer is that regarding Shabbos and damages, we are concerned with the action; when it occurred and how it happened. Regarding the Beis Hamikdosh being destroyed; we are not concerned with the action, rather with the result and it was burned on the tenth of Av. This is why Rabbi Yochanan said that if he were living in those days, he would have ordained the tenth of Av as the fast day.

The Avnei Neizer answers that the fire of the Beis Hamikdosh was a Heaven-sent fire and that is constantly being lit - that is why Rabbi Yochanan thought the fast should be on the tenth - we don’t look at the beginning.

Read more!

Laws of Heaven

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

The Gemora (Bava Kamma 22b) cites a Mishna: If one sends out a fire in the hands of a deaf-mute, an imbecile or a minor (and it consequently burned someone’s haystack), he is not liable to pay according to the laws of man, but he is liable according to the laws of Heaven. If, however, he sent out the fire in the hands of a competent person, the competent person is liable to pay for the damages.

It would seem that in the case where the sender sent the fire with a competent person, the sender is not liable at all, even under the laws of Heaven!

The Ram”a (C”M: 32:2) rules that if one sends out false witnesses to testify against someone, and they cause that fellow a loss, the sender is not liable at all, even under the laws of Heaven. This is because we say that there cannot be a shliach to commit a transgression.

The Sha”ch disagrees and maintains that the sender will be liable to pay under the laws of Heaven. He explains the distinction between the two cases. The sender will always be liable under the laws of Heaven. The only reason that the sender is not required to pay at all in the case of the fire is because once the competent person is liable to pay, there is no place for the sender to be liable as well!

Read more!

Through Desolation, the Gate is Broken Apart

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

Rav Sechorah said in the name of Rav Huna in the name of Rav (Bava Kamma 21a) : Someone who lives in his friend’s courtyard without his knowledge is not obligated to pay him rent, for it is written: Through desolation, the gate is broken apart (demons destroy a vacant house; it emerges that the dweller actually benefits the owner).

Mar the son of Rav Ashi remarked: I myself have seen such this demon and the damage was as great as a rampaging bull.

Rav Yosef said: Houses that are inhabited by remain in a better condition (for they maintain it).

It would seem from this Gemora that without this benefit that the dweller provides for the owner, he would be liable to pay. The Rashba asks: Why would this be? It seemed from the entire Gemora above that everyone holds that when one benefits and the other one does not lose, he is not liable to pay!?

He answers that although the Gemora here agrees that one who benefits from another is exempt from liability if he did not cause a loss, practically speaking, this would not be the halachah. This is because, generally, one who dwells in someone else’s house does cause a slight damage to the house. The Gemora had previously ruled that whenever there is a loss to the owner, the one who benefits is obligated to pay for the pleasure that he derived. The Gemora here is explaining that the benefit which the dweller is providing the owner by dwelling in his house offsets the loss in damages that the owner incurs on account of the dweller. It is therefore classified as a case where one benefits and the other is not losing.

Read more!

Destined to Give an Account

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

The Mishna in Pirkei Avos (4:29) states: Against your will you were created; against your will you were born; against your will you live; against your will you die; and against your will you are destined to give an account before the King who rules over kings, the Holy One, Blessed be He.

The question is obvious: If a person is living against his will, why is he forced to give an account of his actions?

The Vilna Gaon explains this based upon the Mishna: If someone (owned fields surrounding the field of his friend and) put up fences around three sides (separating their fields), we do not make the owner of the inner field pay (for the cost of building the fence, for it does not really help him, since his field is left opened on one side). Rabbi Yosi says: If the one being surrounded makes the fourth wall, he is obligated to pay his share in all of the walls (for he has demonstrated that he approves of the building of the other three sides). If the owner of the outer property surrounds the inner owner on three sides, the inner owner is not obligated to defray the cost of the building because he has not benefitted, for the fourth side is completely opened. He also can claim that he did not request this at all. However, if the inner owner builds the fourth wall, he has revealed that he approves of the building of the three walls, and he therefore is obligated to contribute to the cost of all four sides of the fence.

So too, explains the Gaon, Hashem fences a person on three sides: A person is created; he is born; and he is living against his will. Accordingly, he is not obligated to pay for it (to give an account of his deeds). But when a person becomes ill and is close to dying, he makes every effort available to him in order to stay alive. He will spend any amount of money for doctors, medicines and cures. He will cry out with all his might that he wants to live. This is as if he is fencing the fourth wall. He is demonstrating that although he was created and born against his will, he now approves and is willingly living. He therefore is destined to give an account of his actions.

The Netziv recounted that one time the students of the Gaon were sitting around the Gaon’s table when he said over this explanation. The Dubno Maggid was there as well, and upon hearing the interpretation, offered the following parable: A man had two daughters; one of them was extremely ugly and the other one had a very bad temperament. No man wanted to marry them until the following marriage was suggested: A blind man should marry the ugly one, and a deaf one should marry the one with the dire disposition, for he will not hear her yelling. The father of the girls accepted and his daughters were married off. Many years passed and the couples prospered. They became wealthy and built a beautiful family. One day an expert doctor arrived in the city and told them that he is capable of healing both the blind man and the deaf one. They agreed on a price and the procedures were successful. However, to the dismay of the couples, strife and arguments between the men and their spouses immediately flared up. The ex-blind man saw the hideous appearance of his wife and the ex-deaf man heard his wife’s constant nagging and yelling.

When the doctor approached them with his bill, they refused to pay him, claiming that he made it worse for them, not better. The case was brought to court and the judge inquired of the doctor if it was possible for him to undo that which was done. He replied that this would no problem at all for him to do. The judge ruled that since these men were better off before the doctor’s involvement in their life, he must make them blind and deaf again. When the men heard the ruling, they proclaimed that they would rather keep their sight and their hearing. Upon hearing this, the judge reversed his ruling and said that they now have revealed that they are happy with the improvement, and they are obligated to pay the doctor for his services.

Read more!

Halachah l'Moshe mi'Sinai

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

The Rambam (Hilchos Mamrim 1:3) writes: There cannot be an argument regarding a halachah learned from a Halachah l’Moshe mi’Sinai. The obvious question is from our Gemora (Bava Kamma 17 - 18) where we have the disagreement between the Chachamim and Sumchos regarding the payment for the case of “pebbles.” The Chachamim maintain that the Halachah l’Moshe mi’Sinai teaches us that half damages are collected, whereas Sumchos disagrees.

The Maharitz Chayus quotes this question from the Chavos Yair (192), and suggests based on the Rambam in his explanation to a Mishna at the end of Eduyos that we have a tradition that Eliyahu Hanavi will do good for Klal Yisroel at the end of time, but there is a disagreement on the specifics. Here too, all agree that pebbles is a Halachah l’Moshe mi’Sinai that it is included in damages that one is responsible for, but they argue as to the extent of the liability.

The Gemora cites Rav Ashi inquiry: According to Sumchos, do we treat the damage caused by the force of the animal’s force the same way as the force of the animal itself? There are several approaches to understand this.

The Shitah Mekubetzes writes that since Sumchos does not agree that pebbles are learned from a Halachah l’Moshe mi’Sinai, the reason he holds that one is liable in full is purely based upon logic. Accordingly, there can be a distinction between damage caused by the animal’s force and damage caused by the force of the animal’s force.

The Rosh understands the inquiry as follows: Sumchos was uncertain if there was a Halachah l’Moshe mi’Sinai by pebbles at all. If there was one, perhaps it was coming to teach us that one is not liable to pay full damages by a case where the damage was caused by the force of the animal’s force; rather, he is only obligated to pay half.

According to both these approaches, it is evident that they did not learn like the Maharatz Chiyus.

Reb Avi Lebovitz quotes a Chasam Sofer (Beitzah 5a - pg. 20), who offers another approach. We certainly find many cases where there is a dispute regarding a Halachah l’Moshe mi’Sinai. The Rambam doesn’t mean to say that an argument cannot develop on a tradition; rather, he means to say that when there was a disagreement about a tradition and the Sages of the generation agree to one approach and reject the other – they essentially are deciding that the tradition of the one they accept is correct and the other is not. At that point, no later generation can restore the argument and rely on the tradition of the individual.

Read more!

Haman and his Daughter

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

Rava inquired (Bava Kamma 17) : If an animal pounced upon a utensil but it didn’t break, and it rolled to another place and broke there, what is the halachah? Do we consider the beginning of the process, and it is regarded as if the animal itself broke the utensil (in which case the owner will be liable to pay in full), or do we look at when the utensil actual broke, and then it would be regarded as a case of “pebbles” (in which case the owner will only be liable to pay for half the damages)?

The Gemora attempts to resolve this from that which Rabbah said: If one threw a utensil from the top of a roof and someone else comes and breaks it with a stick, the second person is exempt from liability, for we can say to him (the owner of the utensil), “He broke a broken utensil.” [Evidently, Rabbah considers the beginning of the process, and that is why the utensil is regarded as broken even before it actually hits the ground and breaks!]

The Gemora rejects the proof, by saying that although it was clear to Rabbah (that we consider the beginning of the process), it was still a matter of inquiry to Rava.

Tosfos writes that if one throws a stone or shoots an arrow onto a utensil, and someone else comes and breaks the utensil first, the second person is definitely liable to pay for the damages. We cannot say in this case that “he broke a broken utensil,” for if the utensil would be considered broken immediately, there would never apply the halachah of “pebbles,” for we would always consider the utensil to be broken as soon as the pebbles shoot out from the animal. Tosfos concludes that the logical distinction between throwing a stone at a utensil and throwing the utensil itself is a simple matter.

The Rogatchover Gaon uses this Tosfos to explain a Gemora in Megillah (16a). As Haman was leading Mordechai through the streets, they passed by Haman’s house. Haman’s daughter witnessed the scene and thought that Mordechai was leading her father. She took the bowl from the bathroom and threw it on her father’s head. When she realized that it was her father, she fell off the roof and died. This explains that which is written: And Haman hurried to his house, mourning and with his head covered. He was in “mourning” on account of his daughter, and “his head was covered” because of what occurred to him.

The question is asked that the sequence is reversed!? The verse should have stated that “his head was covered” and then he was in “mourning” Why was he mourning before his head was covered?

The Rogatchover Gaon suggests the following: Immediately after Haman’s daughter threw the bowl down, she realized her mistake, and she threw herself off the roof before the bowl landed on her father’s head. According to Tosfos, who distinguishes between when the utensil was set into motion, and when the stone was set into motion, we can explain as follows: She (like the utensil) was considered dead at the beginning of her descent; however, Haman’s head was not covered until the bowl actually landed on his head. This explains why the verse mentions that he was in mourning even before his head was covered.

Read more!

Fender Bender

By: Reb Avi Lebovitz Hearos on the Daf/

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

Reuven is driving behind Shimon and smashes into Shimon’s car, destroying his fender and causing $500.00 worth of damage. Shimon continues to drive home and gets into a terrible accident that completely totals his car. Reuven claims that he should not be liable for paying for the damage that he caused, because even if had he not caused the damage, it would have happened due to the later accident. Is Reuven obligated to pay?

The Reshash learns from Tosfos that Reuven is responsible. Tosfos says that although in the case of the Gemora where one throws a vessel from the roof and the other one smashes it before it hits the ground, the thrower is liable to pay and the smasher is exempt; in a case where one throws a stone at a utensil and before it hits the ground, someone else smashes it, the smasher is liable and therefore the thrower is exempt. The argument that “he broke an already broken item,” only applies to a case where the damaged item itself was thrown, not when another item was thrown at it. The logic is clear. When one throws a stone at a utensil, he has no connection to the utensil until the stone makes contact with it, so if prior to that, someone else smashes the utensil, the smasher is fully responsible.

Based on this, the Reshash says that if Reuven smashes Shimon’s vessel, but later a fire occurs and burns the broken vessel, Reuven is responsible to pay for the damage he caused. Why? Because even if Reuven would smash the vessel after the stone has been thrown, he would be obligated to pay; certainly if he broke the utensil prior to the fire heading to Shimon’s home, Reuven is liable to pay. Similarly, in the case of the car accident, Reuven would be obligated to pay, because even if at the time of the fender bender there was already a train headed right at Shimon’s car and it would definitely be destroyed, Reuven is liable for the damage he caused.

Read more!

Spine Turns into a Snake

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

The Gemora (Bava Kamma 16) cites a braisa: The spine of a deceased person becomes a snake after seven years, if he does not bow down for the modim prayer.

Tosfos explains that this is measure for measure. Rav Sheishes (Brochos 12b) said that when he bowed down during Shemoneh Esrei, he would bow like a rod (in one swift motion), and when he straightened up, he would straighten up like a snake (which raises its head first and then slowly raises the rest of its body). A person’s punishment is that his spine turns into a snake.

What is behind the bowing down like a rod and straightening up like a snake?

Kollel Iyun HaDaf explains this based upon the Maharsha and the Maharal: The point of "Modim" is to show one’s humility before Hashem, Who grants a person everything he needs for his daily life. The Gemora in Sotah (9b) teaches us that Hashem originally made the snake the king of the beasts, but the snake was not grateful and it became arrogant and wanted even more. Hashem punished the snake, saying, “I originally created you to walk with an upright stature, but now that you did not humble yourself, you will walk upon your stomach.” The snake, therefore, is a symbol of the punishment that befalls a person who does not humble himself and does not recognize that everything he has is a gift from Hashem. When a person bows down, he should bow like a rod, reminding himself that there is a Master in Heaven Whose word he must obey (for a king rules with his stick; see Sotah 40a and Shabbos 52b).

When a person rises after bowing, he must remember that even when standing erect, he should not do so in an arrogant manner. The Gemora here teaches us that if a person does not bow during Modim and thereby commits the sin of the snake, by standing erect and not recognizing Hashem’s dominion; after he dies, his spine that did not bend, will turn into a snake.

Tosfos brings another explanation: The Midrash says that there is a vertebra in the spine of a person from which he is resurrected in the World to Come. This bone is so strong and hard that fire cannot consume it. And now, when that bone becomes a snake, he will not be resurrected and will therefore not live in the World to Come.

Tosfos rejects this explanation, for it is not logical to say that one will punished so harshly for committing this minor transgression, for we have learned that all of Israel has a share in the World to Come.

Rav Shamshon Raphael Hirsch wrote in a letter: Anyone who reads this Gemora finds it laughable, but Pliny says the same statement almost word for word, “After a number of years the human spine turns into a snake” Chazal, however, used this to teach a mussar lesson. To any mind it is clear that every similarly surprising statement of Chazal, if we look into it, was accepted as true by the scholars of the time.

Read more!

YAAKOV’S ACQUISITION OF CATTLE

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

It is written [Breishis 30:43] regarding Yaakov Avinu: And the man increased exceedingly, and had large flocks (sheep), and maid-servants and men-servants, and camels and donkeys. It is not mentioned in the Torah that Yaakov had cattle. Why not? We see that Yaakov sent to Esav cattle, as it is written [ibid, 32:6]: And I have oxen, and donkeys and flocks, and men-servants and maid-servants; and I have sent to tell my lord, that I may find favor in your sight. A few verses later, we also see that Yaakov had cattle. It is written [ibid, v. 8]: And he divided the people that were with him, and the flocks, and the herds, and the camels, into two camps. Yaakov sent cattle to Esav, as it is written later in the same Perek. Perhaps one can answer that Yaakov acquired the cattle afterwards; if so, the question may be asked: Why didn’t he acquire cattle beforehand?

The Gemora in Yevamos (16a) relates the following incident: Yonasan the son of Hurkenas met Rabbi Akiva. He questioned him and silenced him. He asked him, “Are you the Akiva whose name is known from one end of the world to the other? You are fortunate indeed to have merited such a name, but you have not yet reached the level of an oxherd.” Rabbi Akiva replied (with humility), “I have not even reached the level of shepherds.”

It is evident from here that it is more difficult to be an oxherd than a shepherd. One does not need to be so careful when watching sheep – he has to watch that the sheep do not graze in other people’s fields. When one is watching cattle, he must be concerned that the cattle do not damage other animals or people. This is not a simple task, as the Gemora states: Rav Papa says that the half damages that an ox-owner is required to pay if his animal gores are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half damages that he does pay is considered compensation).

If one takes the animals that he is entrusted to watch into a desert, a place where there are no private fields, watching sheep there is almost effortless; he does not need to be cautious at all. However, he still must be vigilant in his guarding of the cattle, lest they damage other animals or people, for it is common for there to be other animals and people in a desert.

Yaakov did not want to watch Lavan’s cattle, for he was worried that the cattle will cause damage and Lavan would not be willing to pay for the damages. He was able to tell Lavan that he does not posses the expertise necessary to watch cattle. This excuse was only possible if he did not have cattle of his own. He did not acquire cattle until after he departed Lavan’s house, for now, if his cattle would damage, he would be liable, and he would certainly compensate anyone for any damages cause by his animals. (Igrah d’kallah)

Read more!

Is it Natural for an Ox to Gore?

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

It was stated (Bava Kamma 15) : Concerning the payment of half damages (which are paid when a tame ox gores another animal; if the ox did not gore three times, it is regarded as an abnormal act and the animal was not intending to inflict damage; this is called a tam), Rav Papa says: This is regarded as a compensation payment. Rav Huna the son of Rabbi Yehoshua says: The half damages are considered a fine.

The Gemora explains: Rav Papa says that the half damages are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half damages that he does pay is considered compensation). Rav Huna the son of Rabbi Yehoshua says that the half damages are considered a fine, for an ordinary ox is considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be exempt completely from paying for its damages. The Torah penalized him and ruled that he is required to pay half in order that he will watch his ox better in the future (hence the half damages are considered a fine).

Reb Dovid Pervarsky writes that this is not a factual dispute if ordinary oxen are accustomed to gore or not. Rather, the argument can be explained as follows: Rav Papa maintains that it is inherent in the nature of an ox to gore. Sometimes it will not gore because it does not feel the desire to gore at that time. When the animal does gore, it is not considered an abnormality at all. Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; when it does gore, it is regarded as an abnormality.

Reb Dovid is not comfortable with this explanation of the argument, for the Gemora’s language is that an ordinary ox is not considered guarded; if the animal is not goring (for whatever reason), it should be considered “guarded”!?

He therefore concludes that this is the explanation: Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; if it does gore, it cannot be labeled as a “damager,” since the ox was considered guarded. Rav Papa, however, maintains that it is in the nature of an ox to gore, and when it gores, it can be labeled a “damager.” This is what obligates the owner to watch his animal even though it is not accustomed to goring.

Read more!

U'bi'er

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

The Gemora (Bava Kamma 14) explains that one braisa speaks of a case where a yard was set aside for both of them for the purposes of both keeping produce and their oxen (it is therefore not regarded as “the field of another,” and he would not be liable for shein and regel), whereas Rav Yosef’s braisa deals with a yard set aside for keeping produce in but not cattle, in which case, as far as shein is concerned, the yard is regarded as the yard of the damaged party (because the damager has no permission to bring his ox in).

Rabbi Zeira challenged this explanation: In the case where the yard was set aside for keeping produce in (for both of them), how can the there be liability for shein and regel when the field does not fulfill the condition of being “the field of another” (since the damager has the right to keep his produce there as well)?

Abaye said to him: Since the yard is not set aside for keeping cattle in, it may well be termed “the field of another.”

Reb Elchonon Wasserman explains the dispute as follows: It is written regarding shein: ubi’er b’sadeh acher – and it consumes in the field of another. The argument is regarding the word ubi’er. Is it in reference to the act of damaging, or is it in reference to that which is damaged?

Rabbi Zeira holds that it is in reference to that which is damaged. The produce is what is getting damaged. And since with respect to the produce, they both had permission to keep their produce in the yard, it is regarded as a jointly owned courtyard – and with respect to the damage of shein, it is considered a public domain, and the damager is exempt from liability.

Abaye, however, holds that the word ubi’er is in reference to the act of damaging. The ox is the one who committed this damage. And since the damager has no right to bring his ox into the yard, it is regarded as the “field of another,” and therefore, he would be liable.

Read more!

Kodoshim Damaging

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

Rabbi Abba(Bava Kamma 13) says: If shelamim damage, one collects from their meat (which is eaten) and not from their limbs (which is burnt on the mizbe’ach).

The Ketzos Hachoshen asks: Why, even according to Rabbi Yosi HaGelili, who holds that kodshim kalim are not the property of the High, should one be liable to pay for the damages? It is forbidden to derive pleasure from this animal, and something that is forbidden to derive benefit from is regarded as if it is ownerless!?

The Minchas Chinuch notes that this question is only according to the Rishonim, who maintain that something that is forbidden to derive benefit from is regarded as if it is ownerless. However, there are Rishonim who hold that one is considered the owner on things that are forbidden for benefit; it is just that it is not regarded as being under his domain. Accordingly, one would still be liable if his korban shelamim damaged.

Reb Shimon Shkop distinguishes between two types of items that are forbidden for pleasure. There are things that the Torah requires one to destroy. Such items are considered ownerless, and one cannot betroth a woman with those items. However, there are other items that are forbidden to derive benefit from because they are designated for a mitzvah, such as a sukkah during the holiday of Sukkos, tefillin and korbanos – these items are regarded as his. One would be allowed to sell them, for that does not retract from the mitzvah – it does not contradict that which it was designated for. One would be permitted to betroth a woman with a korban. This is why he would be liable if his shelamim damaged.

Read more!

Kinyan Agav

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

The Gemora (Bava Kamma 12) rules that the movable property does not need to be piled on the real property in order for the kinyan agav (by making a kinyan on the land, he automatically acquires the movable property) to be effective.

The Rishonim ask: If the halachah would be that kinyan agav is only effective if the movable property is piled on the land, why would it be necessary to use agav? The movable property should be acquired because it is resting in his courtyard!?

The Ritv”a answers: The Gemora is referring to a case where the courtyard is not protected and therefore it cannot be used to make a kinyan. That is why agav is necessary.

The Shitah Mekubetzes answers that a courtyard can acquire for a person only movable property that entered it after it became his. However, a courtyard cannot acquire property that was in it before the courtyard became his.

The Steipler Gaon writes that the Shach states this halachah only with respect to the acquisition of a courtyard without the knowledge of the owner. However, if he intends to use the courtyard to acquire the movable property which is found in it, it will be effective even if the property entered the courtyard before it became his.

Read more!

Mobile Courtyard

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

The Gemora (Bava Kamma 12) states that a moving courtyard cannot effect an acquisition for its owner. The Rishonim disagree as to the reason for this. Rashi and Tosfos maintain that since the halacha that a courtyard can effect an acquisition for its owner is derived from the halacha of acquiring through one’s hand, a moving courtyard, which does not resemble to a hand (which is stationary), cannot effect an acquisition for its owner.

The Ritva and the Ran suggest a different reason for this. They say that since the courtyard can be a great distance away from the owner, it is not considered protected by the owner, and therefore it is disqualified from effecting an acquisition for the owner.

The Divrei Mishpat notes that the following case would be a difference between them: If a lost object would fall on his animal which is in his courtyard. If a mobile courtyard is excluded because it does not resemble a person’s physical hand, he will not acquire this lost object, for the animal is a moveable object. If, however, a mobile courtyard is disqualified from effecting an acquisition because it is not guarded from intrusion by the owner, here, he will acquire the lost object because the object is protected.

Read more!

Assessments

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

by Reb Avi Lebovitz http://www.hearos.blogspot.com

The Gemora (Bava Kamma 11) concludes that if one steals an item and ruins it, he is not able to simply return the broken item and pay for the damage; rather, he has to pay in cash for the entire item, or replace it with an equivalent item. However, when one damages, or borrows an item and it gets damaged by accident, he can simply return the item and pay the depreciation amount. Why? Tosfos explains that when one steals an item, they immediately acquire the item by removing it from the domain of its owner, and therefore are liable to reimburse the owner for the entire item (not just the difference from the time it was stolen and the time it is returned). But, when one damages, he is only responsible for the amount that the item depreciated due to the damage, but whatever remains still belongs to the original owner. Based on this, a borrower, who is responsible if an accident happens, since he is regarded as acquiring the object when he borrows it, he therefore is responsible for the entire item.

Why do we say that a borrower is making a kinyan and acquiring the object at the time that he accepts responsibility? Just as a paid custodian is only responsible for what was stolen but he can return whatever remains and just pay the difference, a borrower should be able to do the same? Tosfos understands that since a borrower is responsible for unavoidable accidents, his responsibility cannot begin at the time that the accident occurs because one cannot be liable for a complete accident. The only way that a borrower can be responsible for an accident is because he makes a kinyan on the object when he borrows it. Based on this, there is a major difference between the liability of a (paid or unpaid) custodian and that of a borrower. A custodian is responsible for their negligence in not protecting the object, and that obligation begins at the time of the incident. A borrower, on the other hand, is not responsible for the incident, but responsible at the moment he borrows it to return the item as it is at that moment.

Read more!

Deriving Benefit from a Corpse

Subscribe to the Daily Daf Yomi Summary here. We now have a “less than ten minute” audio summary as well.

By Reb Avi Lebovitz Hearos on the Daf

Tosfos (Bava Kamma 10) asks: Why do we need a special verse to exempt a person who is killed by falling in a pit? It should be included in the exposition of “and the corpse shall belong to him”!? This means that the owner of the pit is only liable when the corpse can belong to the owner of the animal. Just as we exclude an animal that is a disqualified sacrifice, which cannot belong entirely to its owner (since certain restrictions apply to it even after it is redeemed), we should exclude man as well, since it is forbidden to derive pleasure from a corpse!?

Tosfos answers that from this verse alone, I would have said that the owner of the pit is liable for damaging a gentile, since one is permitted to derive pleasure from his corpse, so we need a verse to exempt the pit owner for the death of all people.

Shulchan Aruch (Y.D. 349:1) writes that it is forbidden to derive benefit even from a gentile corpse. The Nekudas Hakesef quotes this from a Teshuvas Harashba. But, the Nikudas Hakesef points out that both our Tosfos and the Magid Mishnah hold that only a Jewish corpse is forbidden to derive pleasure from.

The Vilna Gaon proves that Tosfos is correct from David who used the foreskins from the Philistines to betroth the daughter of King Shaul. He also points out that the Rashba in his commentary on the Daf says like Tosfos.

However, the Pischei Teshuva reconciles Tosfos and the Rashba by saying that it is not Biblically forbidden, and that is why a special verse is needed to exempt the pit owner when a person is killed in a bor, but it is Rabbinically forbidden to derive pleasure from any corpse.

Read more!

Spending Money for a Mitzvah

Subscribe to the Daily Daf Yomi Summary here

Tosfos (Bava Kamma 9b) writes that it is evident from our Gemora that a person is not obligated to give up all of his possessions in order to fulfill a mitzvah, and even for a mitzvah that will pass in time, such as an esrog. It is further evident from the conclusion of the Gemora that one is not even obligated to give up a third of his possessions in order to fulfill a mitzvah. And furthermore, it is said regarding charity: One who gives liberally to charity should not give more than a fifth of his money, for then, he will be forced to beg for support himself.

All Mitzvos

The Rosh writes that this halacha applies by all mitzvos; one should not spend more than a fifth of his wealth on any specific mitzva, such as esrog or lulav. The Rambam and Rema seem to rule accordingly.

Why not Spend?

The Rishonim ask: Why would someone be exempt from performing a mitzvah just because it costs more than a fifth of his wealth? The Ra’avad answers that this is similar to halacha that one should make his Shabbos like an ordinary weekday, and not be forced to be supported from charity. This is because poverty is regarded as death, and one is not obligated to give up his life for an ordinary mitzvah.

The Biur Halachah writes (in his explanation of an opinion from the Beis Yosef) that not all mitzvos are compared to charity, for charity is a mitzvah that will not pass in time, and even if the poor people are before him, they can be supported by another person. That is why one would not be obligated to spend more than a tenth of his possessions. However, with respect to a mitzvah that will pass in time, it is possible that there would be an obligation to spend more than a tenth.

Reb Yaakov Emden asks: Why isn’t there an obligation to spend more for a positive commandment? Did we not learn regarding one who does not want to fulfill a positive commandment – we beat him until his soul departs him? Do we treat his money stricter than his life?

The Maharitz Chayus answers that we only beat him until his soul departs him when he is rebelling against the fulfillment of mitzvos; otherwise, we do not beat him, and he would not be required to spend all his money for it.

Lo Sa’aseh is Different

The Ra’avad adds that this halacha applies only to a positive commandment; however, one would be required to spend his entire wealth in order not to transgress a negative precept.

Must he Spend a Fifth?

The Gemora (Kesuvos 50a) states that one should not spend more than a fifth of his wealth to fulfill a mitzvah; is one halachically required to spend up to that amount, or is it only regarded as a mitzvah?

The Beis Yosef (Y”D; 249) writes that it is considered a mitzvah in the preferable manner if one spends up to a fifth of his wealth in order to perform a mitzvah. The Beis Yosef adds that although one can imply from the Gemora that it is not even a mitzvah to spend that amount because the Gemora states: One who spends liberally should not give more than a fifth of his wealth; however, even less than that would be regarded as spending liberally, and there would be no mitzvah whatsoever to spend that amount. Nevertheless, there is a Yerushalmi in Pe’ah that seems to indicate that there is a mitzvah to spend up to one-fifth of his wealth for a mitzvah.

In the sefer Ahavas Chesed, the Chafetz Chaim cites a Rambam in his explanation to the Mishnayos, who writes that there is a halachic obligation to spend up to one-fifth of one’s wealth for charity. He asks form our Gemora, which would seem to indicate that there is no such obligation. He answers that our Gemora is discussing a case where the poor people are not present and someone is searching to find them in order to give them charity. In such a situation, there is not even a mitzvah to give up to one-fifth. However, the Yerushalmi and the Rambam are speaking about a case where the poor person is in front of you; then, there would be a halachic obligation to give up to one-fifth.

Spending More than a Fifth

What if one wants to spend more than a fifth? Is he allowed to? It is evident from the Rambam in his explanation to the Mishnayos that it is regarded as virtuous (midas chassidus) for one to spend more than a fifth. However, it can be inferred from the Rambam in halachos that one should not spend more than a fifth of his wealth on a mitzvah.

The Chafetz Chaim reconciles the two rulings of the Rambam in the same manner as before. If the poor person is present, it would be regarded as midas chassidus to spend more than a fifth, and that is what the Rambam in his explanation to the Mishnayos is discussing. However, when the poor people are not present and one is chasing after them, he should not spend more than a fifth.

The Shitah Mekubetzes writes that one is permitted to spend more than a fifth of his wealth if it is to support the studying of Torah. The Ahavas Chesed explains the reasoning for this. One who supports another fellow to learn Torah is creating a partnership with him; the supporter receives a reward together with the one who is learning the Torah. One is permitted to purchase this reward for himself even if it will cost him more than a fifth.

Reb Moshe Feinstein (Igros Moshe (Y”D, 4:37) rules that this is correct only if the supporter specifically negotiates with the one studying Torah to create a partnership of Yissochar and Zevulun. However, if the provider is just donating money to support Torah, he is not permitted to give more than a fifth.

The Ibn Ezra in Mishlei (4:7) writes that one is permitted to spend more than a fifth of his wealth in order to study Torah himself. The Chafetz Chaim in Likutei Halachos (Yoma 12a) also rules like that. However, the Netziv in the Shiltos states that this is a matter of dispute between two Amoraim. The Gemora in Eruvin cites the verse that Torah is not in the Heavens. Rav Avdimi says: If it would be in the heavens, one would be obligated to go there and learn. It is evident that one would be forced to spend more than a fifth of his wealth to study Torah, for otherwise, he could claim that it costs too much to travel to the Heaven. However, Rava disagrees regarding the interpretation of that verse, and according to him, one would not be allowed to spend more than a fifth in order to study Torah.

The Rema (Y”D, 249:1) seems to hold that one can give away more than one-fifth of his wealth to charity right before he dies. It is brought in the name of Rabbeinu Yonah that even then, he should not.

It is written in Ahavas Chesed that one who is a free-spender in regards to himself and his family, i.e., he splurges on expensive clothing, builds for himself a fancy mansion and generally leads a luxurious lifestyle; it is permitted for him to give to charity more than a fifth of his wealth.

Some say that if one finds himself in dire straits, he is permitted to spend more than a fifth with the intention that it should be on account of this deed that he will merit a salvation. It is brought in the name of the Bnei Yissoschar that one who requires atonement on a specific sin is also permitted to give away more than a fifth.

Read more!

Paying Kofer

Subscribe to the Daily Daf Yomi Summary here

The Gemora (Bava Kamma 4a) explained the Mishna according to Rav as follows: The nature of ox, that it pays kofer (if the ox kills a person, the owner is liable to pay a kofer payment), is not the same as the nature of a person, who does not pay kofer (and therefore, if the Torah would only write that one is liable for an ox, we would not necessarily know that one is liable for his own damaging).

Tosfos asks: Why is the fact that an ox pays kofer regarded as a stringency? The reason why a person does not pay kofer when he kills someone is because of the principle of kim leih bid’rabbah minei - (whenever someone is deserving of two punishments, he receives the one which is more severe). And since a man is executed for killing another man, he is not required to pay the kofer payment. It emerges that not paying the kofer is not a leniency, but rather, it is due to a stringency, namely – that he is put to death!?

The Riva answers that a person would not pay kofer even if he would not be executed. This would be in a case of an accidental killing.

The Darchei Dovid explains: Although this is also a type of kim leih bid’rabbah minei; whenever someone accidentally does something - and this same action, if it would have been done intentionally, would have exempted him from a monetary payment – it exempts him from the payment in this case as well; nevertheless, it must be regarded as a lenient ruling, for the bottom line is that he is not executed and he is not obligated to pay anything.

Alternatively, Tosfos answers that he is not exempt from the kofer payment due to kim leih bid’rabbah minei.

The Maharam explains: The principle of kim leih bid’rabbah minei only applies when he committed an action that he deserves to be executed for, and simultaneously, he does something else that he is required to pay money for. However, in our case, where a man killed someone, the punishment of execution and the kofer payment are both coming for the same reason. Kim leih bid’rabbah minei will not apply here.

The Reshash explains Tosfos to mean that the principle of kim leih bid’rabbah minei does not apply in this case because the kofer payment serves as an atonement for the killing. Kim leih bid’rabbah minei exempts a money obligation which is a payment because of compensation; however, it does not exempt payments on account of forgiveness.

Read more!

Uncertainty regarding Liability by Damages

Subscribe to the Daily Daf Yomi Summary here

The Gemora (Bava Kamma 3a) asks: Why didn’t the Torah just write v’shilach, which connotes both shein and regel (which the Gemora proceeds to prove), and u’vier would not be necessary?

The Gemora answers: If the Torah would only write v’shilach, we would only have learned that one is liable for one of those damages; either regel because its damage is usual, or shein because it has physical pleasure when damaging (but we would not have learned that there is liability for both types).

The Gemora asks: But they are both equal, so let us derive both types of damages from one verse, for which one of them would be excluded?

The Gemora answers: If shein and regel would be derived from one verse, we might have said that one is liable only if the owner sent the animal out; however, one would not be liable if the animal went out by itself and damaged. The Torah therefore writes u’vier as well.

The Rashba asks on the Gemora’s question: Why would we learn out both damages from one verse based on the fact that we do not know which one of them to exclude? On the contrary! Since we are trying to extract money from the damager, why don’t we apply the principle that the one who is attempting to extract money is the one who is obligated to bring the proof?

A possible answer on this question is that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, we can understand why both damages will be included in one verse since we do not know which one to exclude. Why didn’t the Rashba answer like this?

The Chasam Sofer adds that this is even more problematic, for the Rashba himself (2b) uses this principle to answer a different question. The Gemora had stated: One might think that when the Torah differentiates between a tam (an ox that did not yet gore three times; the owner only pays for half the damage) and a mu’ad (an ox that gored already at least three times; the owner pays the full amount of the damage), it is only when the horn is disconnected from the animal (in a case where the animal took its uprooted horn in its mouth and gored; as the case of Tzidkiyah was of an unattached set of horns). However, when an animal gores with its horns attached to its head, it should always pay full damages. This is why the braisa quotes the additional verse from the Torah.

The Rashba there asked: On the contrary! Let us say that when an animal gores with its horns attached to its head, it should always pay half damages!?

He answered that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, when faced with the option of always paying full damages or paying half, the Gemora chooses the option of paying in full.

It would therefore seem that the Rashba is contradicting himself! How do we treat damages? Do we automatically rule stringently because it is like a prohibition, or do we rule leniently, for we are attempting to extract money away from the one who possesses the money, and for that, proof is needed?

The Har Tzvi suggests the following answer: The Levush (C”M 378) writes that not only does the Torah obligate the damager to compensate the person who was damaged, but there also is a prohibition to damage someone else’s property, in the same manner that it is forbidden to steal. If someone does not guard his possessions against inflicting damage on someone else’s property, he has violated a Biblical prohibition.

Accordingly, the Rashba can be explained as follows: The Gemora above was discussing a case where the damager is certainly obligated to pay. The animal inflicted damage with a disconnected horn in its mouth. The Gemora’s only question was with respect to the amount of the compensation. Should he always (whether it’s a tam or a mu’ad) pay full damages, or should he only pay half. In such a case, we would rule stringently, for the owner has indeed transgressed the prohibition of allowing his animal to cause damage. He now has to “fix” his sin by compensating the owner for his loss. This would be similar to a case where one said to his fellow, “I know that I owed you money, but I do not know if I paid.” He would be obligated to pay. However, in our case, where the Gemora is not certain if one should be liable at all for shein or regel; we must rule leniently. For it is quite possible that the Torah did not mandate that there should be any obligation to guard one’s property against causing such a damage. This is why the Rashba asks that if we are uncertain if there is any liability at all, we should rule leniently, and apply the principle of the one who is attempting to extract money is the one who is obligated to bring the proof. Accordingly, there is no contradiction at all.

Read more!

An Av and its Toladah

Subscribe to the Daily Daf Yomi Summary here

The Gemora (Bava Kamma 2a) notes: We see regarding Shabbos that there are thirty-nine main categories of melachos (that are forbidden to perform according to Torah law) on Shabbos. This implies that there are sub-categories as well. Regarding Shabbos, we say that the sub-categories are like the main categories. Whether one transgresses a main category or sub-category unwittingly, he must bring a korban chatas. Whether one transgresses a main category or sub-category willfully, he is liable to be stoned. What difference, then, does it make that one is called a main category and one is called a sub-category? The difference is that if one performs two main category prohibitions or two sub-category prohibitions, he is liable twice. However, if he performs a main category prohibition and its sub-category prohibition at the same time, he is only liable for transgressing Shabbos once (and would only bring one korban chatas).

Rashi explains that when one performs an av (main category) together with its toladah (sub-category), he is liable for the av, and not for the toladah. For example, if one planted a tree (av) and watered a plant (a toladah of zore’a), he is liable for the av, and not for the toladah.

The commentators ask: What practical difference does it make if he is liable for the av or the toladah? The bottom line is that he is required to bring one korban chatas!?

Reb Tzvi Pesach Frank suggests the following: The Gemora in Shabbos (71b) rules that if one eats two olive-sized pieces of cheilev (forbidden fats) in one state of unawareness, and he is apprised of the first and he brings a korban. If subsequently, he becomes aware of the second, he is now required to bring another chatas for that one (for the bringing of one korban cannot exempt one from bringing a korban for a violation that he did not know about at the time). Accordingly, if one would perform an av and its toladah together, and he would be apprised of the av, but not the toladah, he would bring a korban for the av. If afterwards he is made aware of the toladah, he would be liable to bring a korban for it, for according to Rashi, one is not liable for a toladah when it is done together with its av.

Read more!

Best of Physicians to Gehinom

Subscribe to the Daily Daf Yomi Summary here

The Mishna (Kiddushin 82a) had stated: Abba Guryon of Sidon says in the name of Abba Gurya: A man should not teach his son to be a donkey driver, a camel driver, a wagon driver, a sailor, a shepherd, or a shopkeeper, for their craft is the craft of robbers. Rabbi Yehudah says in his name, Most of the donkey drivers are evil men, and most of the camel drivers are righteous. Most of the sailors are pious. The best of the physicians are destined to Gehinom, and the most righteous of the butchers is the partner of Amalek.

There are several explanations as to the meaning of the Mishna when it states that the best of the physicians are destined to Gehinom.

Rashi understands it to mean that doctors do not fear sicknesses for they eat healthily. They therefore are not humble before Hashem. There are times that they will cause someone to die. They also can refuse to heal the poor if they do not have money to pay for their services.

The Pardes Yosef writes that a doctor must visualize Gehinom opened up before him at all times, for his decisions can lead to someone’s death.

The meaning cannot be that all doctors are destined for Gehinom, for there are many examples of great Torah scholars who were also physicians. Shmuel, Rabbi Chanina, Abba Umna, the Rambam and many more were all doctors. Rather, there are two types of doctors. There are the righteous ones who know that that they can accomplish nothing without Hashem; they are merely Hashem’s agents to heal. There are others, unfortunately, who are not believers. They think that they have the power of healing in their hands. These physicians skip the blessing of “Refa’einu” in Shemoneh Esrei. Accordingly, they have only seventeen brochos in Shemoneh Esrei. This is what the Mishna means: “Tov she’b’rofim” – the numerical value of “tov” is seventeen. Those doctors that have only seventeen brochos in their Shemoneh Esrei are destined for Gehinom.

Read more!