Halachos from the Daf - Bava Kamma 118

Where to Return?

The Mishna stated that one who incurred an obligation to pay in a settled area may not pay in a desert. The Shitah quotes the Rema that explains that the rule is that if the obligation was incurred in a secure area, one must pay back in a secure area. If the original place of the obligation is now not secure, the payment may not be made there, even though it was incurred there. The Meiri states that if the receiver of the payment agrees to accept the payment in the desert, it is then a valid payment, and releases the debtor from his obligation.

Where to Claim?

The Gemora explained that in all cases but a loan, the creditor may not claim the object from the debtor anywhere besides the original place. The Meiri explains that this is because generally items that are not fungible as a loan is will only be in their original place, and we do not force the debtor to return to that place. However, if the debtor has the item with him, he must return it wherever the creditor demands it. Furthermore, if the debtor is a thief, but he acquired the object through a change, the obligation now has the rule of a loan, since it is purely a monetary obligation, and may be demanded anywhere. The Ramban adds that even in the case of a loan, the creditor must leave the debtor with enough money for him to support himself until he leaves the desert.

How Obligated?

When discussing the Mishna about one who is unsure of his obligation, the Gemora introduces the concept of ba latzais yedei shamayim – one who cannot be forced to pay in court, but wants to fulfill his religious obligation. Rav Shimon Shkop in Shaarei Yosher (5:16) discusses the nature of this obligation. One has no obligation to fulfill his religious obligation, but if he does want to, he is opting to not invoke his power of ownership (muchzak), and then is obligated based on the standard rules of bari and shema. It is a good character trait to want to fulfill such an obligation, but we do not try to persuade him to do so. This is different than the concept of chayav b’dinei shamayim – one who is obligated at a religious level, but not in a court context. That situation is one where a clear obligation exists, but cannot be directly enforced by a court. We do, however, provide inducements to persuade him to do so.

The Need to Know

The Gemora discusses different levels of knowledge that a theft victim must have when the thief returns an item. The Rashba states that once the victim saw someone steal his item, the thief must notify the victim so that he does not consider him a thief anymore. The Rashba therefore holds that if the victim just realized that an item was stolen by noticing that one was missing, this is not considered knowledge of the theft. The Sma states that once the item is stolen, the victim despairs of having to guard it, and therefore must be aware of its return. According to the Sma, once the victim notices the item missing, this would be considered knowledge of the theft.

The Rif and Shulchan Aruch rule like Rav Chisda and Rabbi Yochanan. The Rif explains that Rava explains Rav Chisda, and agrees with him, indicating that the halachah follows his opinion. When dealing with an inanimate item, Rav Chisda would agree to Rabbi Yochanan. In any case, we would rule like Rabbi Yochanan, since he is favored over both Rav and Shmuel in general. The Baal Hamaor, however, rules like Rav. One of his reasons for this ruling is the fact that the Gemora established the opinion of Rabbi Akiva to follow Rav in the case of a coin. See Biur Hagra (HM 365:1) for a discussion of why the Rif ruled like Rabbi Yochanan against the majority of Rav and Shmuel. See Responsa Rabbi Akiva Eiger (1:155) for a detailed discussion of the Baal Hamaor’s opinion.

Guardian’s Theft

The Gemora said that Rabbi Akiva and Rabbi Yishmael argue about a case of a guardian who stole the item he should be guarding. Rabbi Akiva says that the theft ended the term of the guardian, and he must now return it to the owner’s possession, while Rabbi Yishmael says that the guardian’s term is not ended, and he must just return it to its original place. The Rishonim explain that Rabbi Akiva holds that once the guardian stole the item, the owner would not trust the guardian anymore. The Rashba discuss why Rabbi Yishmael requires him to return it at all – if the guardian’s term is not over, it is safe in his possession, and should not have to be returned.
The Rashba offers three answers:

1. Rabbi Yishmael is not being precise
2. Rabbi Yishmael is referring to a case of a coin, which must be kept in its designated place
3. Even an animal should be in its flock, to ensure it doesn’t run off

The Rashba states that once the Gemora establishes the dispute in the case of a guardian, it does not depend on any specific opinion about the level of knowledge necessary. Rashi, however, states that even this reading of the braisa assumes that both Rabbi Akiva and Rabbi Yishmael agree with Rav Chisda’s position.

What’s in the Pocket?

The Gemora offers an explanation of the braisos dealing with returning stolen money at a later sale that distinguishes between putting money in an empty pocket or by putting it in a pocket that has money. Rashi explains that in an empty pocket, the owner will count the money and realize it was returned, while in a pocket with money, he won’t realize how much was added. The Rif, however, explains that in an empty pocket, he will not count the money, and not realize it was returned, while in a pocket with money, he will count it and realize the extra money. The Shulchan Aruch (H”M 365:1) states that if the pocket was empty, the thief has not fulfilled his obligation, but if the pocket had money, and the owners knew how much, the thief has fulfilled his obligation. The Gra explains that the Shulchan Aruch is ruling like the Rif, but adding in Rashi’s qualification. The Rif only stated that generally one knows how much money is in their pocket, when it’s not empty, since they check it periodically. Once they know how much is there, they will realize the extra, since they will again check. However, the Rif would agree with Rashi that if the owner did not know how much money was there, putting the money there is not notification.

Shepherds

The braisa stated that one may purchase wool shearings that are tfurim. Rashi explains that this means when the wool was made into clothing, in which case the shepherd acquired the wool by its change. The Raavad says it means shearings that are connected and put into large groups. The reason one may buy is that such large items are probably not stolen, because a thief would not draw attention to himself. The Rashba explains, based on the tosefta, that it means pieces of wool that are stuck on bushes. Since they are so insignificant, the flock owner does not mind if the shepherd takes them.

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Lesson from the Chafetz Chaim

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It once happened that some Chasidim, in the days of the Chafetz Chaim, offended a well-known giant in Torah. The Chafetz Chaim was extremely disturbed about it, but he refused to issue a public protest about it. His rationale for this was based upon our Gemora (Bava Kamma 117b) : Rabbah ruled: If a man was chasing after a pursuer with the intention of rescuing the intended victim and he accidentally broke utensils, he is exempt, whether they belonged to the pursued or to any other person. This is not based on a matter of strict law, but it is based upon the following consideration: If you were not to rule like this, no person would ever be willing to rescue a fellow man from the hands of a pursuer. It emerges from here that in order to find people who are willing to rescue someone from the hands of a pursuer, it might come out that innocent people will consequently suffer. The Chasidim, explained the Chafetz Chaim, are fighting to save Klal Yisroel from its pursuers. It will happen that on account of this noble pursuit, innocent people will suffer as a result. [This does not mean to say that he is condoning such behavior at all; he is merely saying that if he would publicly take a stand against their movement, people will refrain from fighting noble causes.]

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Miracles in Halachah

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Rav Kahana asked Rav (Bava Kamma 116a) : If one person saved the other person’s donkey (on condition that he would be paid for his donkey), and the first person’s donkey ended up being saved anyway, what is the halachah?

Rav answered: Heaven had mercy on him (and the owner of the donkey he saved must still pay him the value of his donkey).

This is comparable to the case of Rav Safra. When Rav Safra was traveling with a caravan, a lion joined them and started traveling with them (protecting them from bandits and other wild beasts). Every night one person from the caravan would feed the lion his donkey (in order that he should not attack them). When it was Rav Safra’s turn, he offered the lion his donkey (rendering it hefker), but the donkey did not eat it. Rav Safra quickly went and reacquired his donkey. [Rav Safra had fulfilled his obligation by offering his donkey. He was not obligated to contribute any more to the cause, for the return of his donkey was regarded as a miracle – Heaven sent, and that would not undo the fulfillment of his obligation. This is comparable to Rav’s ruling: Since the rescuer’s donkey was miraculously saved, it does not undo the obligation from the owner of the donkey that he saved.]

Rav Acha from Difti asked Ravina: Why did he have to reacquire the donkey? When he made the donkey ownerless, he only did so because he had to feed it to the lion, not in order that anyone who wants can acquire it (i.e. he did not really make it hefker in the first place)?

Ravina answered: Rav Safra did this as an added precaution (just in case someone would claim that it did not belong to him any longer).

Tosfos asks: The Gemora in Bava Metzia rules that someone who rescues an animal from a lion attack is permitted to keep the animal for himself, for the owner abandoned hope of ever recovering his animal; it is therefore regarded as hefker. If so, shouldn’t Rav Safra’s donkey be legally regarded as hefker?

Tosfos answers that there is a basic distinction between the two cases. Here, the lion is not an attacker, but rather, it is a protector. The lion never attacked Rav Safra’s donkey; the donkey was given to it. It was not inevitable that the lion would kill the donkey. There could have been times that the lion was satiated and would have no interest in eating on that particular night. Accordingly, Rav Safra did not give up hope on his donkey, and is therefore not considered halachically hefker.

The Chazon Ish explains as follows: If Rav Safra’s donkey would have been saved in a completely natural manner (e.g. if there would have been other nights where the lion was satiated and did not kill the donkey), he would have been obligated to repay the others, for he would not have contributed to the caravan’s protection. The Gemora stresses that this was viewed as a miraculous event, for every other night, the lion did consume the donkeys. Rav Safra, being a holy person, was accustomed of having miracles performed on his behalf, and therefore he knew that there was a possibility that a miracle might happen and his donkey will be spared. It was therefore regarded as if he paid his portion towards the caravan’s protection.

However, with respect to reacquiring his donkey, it is not sufficient to say that Rav Safra relied on the fact that a miracle might occur and therefore he would not abandon hope on retrieving his donkey. It would depend on the type of miracle. If a public miracle, revealed to all, one that would involve a change in the laws of nature would occur and his donkey would be spared, even if Rav Safra was confident that such a miracle will happen, it would be regarded as if he had despaired on his donkey and he would be required to reacquire the donkey. It would be as if a different donkey was sent down from Heaven. This is because the Torah was given according to the laws of nature, and the halachah will not change due to an open miracle. But, if the miracle would be a hidden one, one that would be concealed by nature, although it only happened because of Rav Safra, it would be regarded as a natural occurrence, and if Rav Safra would be confident that this would occur, the halachah would consider it as if he did not abandon hope about it. This is because all of nature is in truth governed by Heaven, and a miracle such as this would be considered a natural occurrence for one who is accustomed to such miracles. Therefore, since there are times when a lion, due to some abnormality in its stomach, be satiated and it will have no desire to eat, this is viewed as a natural even that Rav Safra was waiting for, and it is as if Heaven sent satisfaction to the lion in order for it not to consume Rav Safra’s donkey.

It emerges from the Chazon Ish that something that changed through an open miracle is not halachically regarded as being the same item that it was before. This would be similar to Reb Chaim Brisker’s challenge to some of the answers given to the Beis Yosef’s famous question.

The Beis Yosef asks: Why do we celebrate Chanukah for eight days if we are celebrating the miracle that the oil that should have lasted for only one day instead lasted for eight days? We should celebrate Chanukah for seven days, since only seven days of the burning of the oil were miraculous!?

He offers two solutions to this problem. He first suggests that on each night, when the oil was poured from the container into the Menorah, the jug remained completely full (similar to the miracle performed by Elisha). Another suggestion is that after every night, all the oil remained in the Menorah.

Rav Chaim Brisker challenges these two answers, arguing that miraculously generated oil is not acceptable for the lighting of the Menorah. He notes that the oil used for the Menorah is described not merely as “Shemen” (oil) but as “Shemen Zayis,” oil produced by an olive tree. This implies that it must be produced by an olive tree, and not by a miracle.

This parallels that which the Chazon Ish stated: The fact that it was a public miracle would change the nature of the oil. Beforehand, it was olive oil, but now, it is “Heaven-sent oil.”

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Ba'al Tashchis

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The Gemora (Bava Kamma 115b) says that it is forbidden to drink from water that has been left uncovered for there is a concern that a poisonous snake drank from it and left its venom inside. Te Gemora rules that one cannot give this water to an animal.

Rashi explains that the rationale is that we are concerned that one may slaughter the animal and it will be dangerous to the person who eats from this animal.

Tosfos points out that Rashi’s approach would only apply to a kosher animal, but in truth this halachah should apply to a non-kosher animal as well, because there is a violation of ba’al tashchis - the killing of an animal for no reason at all.

Tosfos proves this from a Gemora in Avoda Zara 30b that it is only permitted to feed it to a cat (snake eater) which will not be damaged by the venom. This implies that it would be forbidden to feed it to other non-kosher animals that will be poisoned by the venom.

Reb Avi Lebowitz points out something interesting from Tosfos regarding ba’al tashchis. Usually we refer to something as wasteful because it has a function to serve a human and it is being wasted. But in a case where the object provides no direct benefit to a human being, one can argue that it is permitted to waste it without any violation of ba’al tashchis. Tosfos says that this is not true, because even a non-kosher animal, similar to a cat that is not designated to assist people in carrying loads or plowing a field, nevertheless, it cannot be killed for any reason and would constitute a violation of ba’al tashchis.

It is noteworthy that the Halachah L’Moshe writes that according to Tosfos, who maintains that the prohibition against giving these animals to drink from the uncovered water is because of ba’al tashchis, this would apply only to one’s own animal and an animal belonging to his fellow. However, it would be permitted to give this water to an ownerless animal, for this prohibition is not applicable to animals which are hefker.

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Rebbe - "I Say"

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Rebbe had said (Bava Kamma 114b): I say that a ganav is like a gazlan.

Many times in Shas, it is found that Rebbe used this terminology, “I say etc.” What was his intention with these words?

Reb Yosef Engel in Beis Haotzar explains that it is known that Rebbe was a tremendously humble person. The Gemora in Sotah (49a) states that when Rebbe died, humility ceased. Perhaps what Rebbe was saying was that it appears to him that the halachah is like this-and-this, but not that it is most definitely so.

He also writes that it is clear from the seforim of the students of the Baal Shem Tov that lofty people are constantly thinking that their words and actions are not emanating from their own power and strength; rather, it is all coming from the Ribbono shel Olam. In kabbalah, the Shechinah is referred to as “Ani,” “I.” This is the explanation in the Gemora Sukkah (53a) when Hillel said, “If I am here, then everyone is here.” The “I” did not refer to himself, for Hillel, we also know was extremely humble. Rather, he was referring to the Shechinah. This, perhaps, is what Rebbe was saying when he said, “I say.” The Shechinah which is inside of me is saying that the halachah is like this.

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Obeying a Jewish King in Eretz Yisroel

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It is evident from the Gemora that the law of the kingdom has the full force of halachah behind it. The Ritva writes that we do not find anyone that disagrees with this principle.

The Rashbam explains the rationale for this halachah: All citizens of a country voluntarily accept upon themselves to obey the king’s decrees and laws. All of their laws are therefore binding. Accordingly, one who possesses his fellow’s property based upon that particular country’s law, does not violate a prohibition of stealing at all.

The Rashba explains it differently: Since the entire land belongs to the king, he is entitled to chase anyone away from his land if he wishes, and he has the right to tax everyone for the privilege of residing in his land.

A difference between these two opinions may be if this halachah would apply in Eretz Yisroel with a Jewish king. According to the Rashba, it might not apply in Eretz Yisroel, for every Jew has an inalienable right to live there, and no king would have the jurisdiction to banish anyone from the Land.

The Ra”n in Nedarim 28a rules that this principle applies only in the lands of the exile. The reason for this, he explains, is that in these countries, the land is the property of the kingdom, and one is therefore obligated to abide by the laws and ordinances of the country in which he resides. But, in Eretz Yisroel, which belongs to the entire Jewish nation, there is no obligation to comply with the laws of a Jewish king. The Rambam and Shulchan Aruch both rule that this principle does apply to a Jewish king in Eretz Yisroel.

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Law of the Kingdom

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Shmuel states: The law of the government is the law (even according to our law).

The Gemora in Shabbos (88a) teaches that when Bnei Yisroel stood at Mount Sinai and heard the word of Hashem, He held the mountain over our heads. Hashem declared, “If you’ll accept the Torah, all will be well. If not, this will be your burial place!” Rav Acha bar Yaakov said: This can now be used as an excuse for Klal Yisroel when they do not perform the mitzvos. For when they are summoned for judgment, they can claim that they were coerced into accepting the Torah; it was not done willingly.

The Perashas Derachim asks from our Gemora which states that the law of the kingdom is the law. If so, this should certainly apply by The Holy One blessed is He, Who is the King of all Kings. How could Klal Yisroel use the coercion as an excuse? The law of the kingdom is the law, and they took an oath obligating themselves to perform His mitzvos!

He answers that Rabbeinu Tam holds that the principle of the law of the kingdom is the law is only applicable if the king decrees on all his subjects. However, if the decree is issued only on part of his kingdom, this principle does not apply. Since Hashem is the King over all the nations of the world and He only forced Bnei Yisroel to accept His mitzvos, this principle would not apply and hence, a claim of coercion can be effective.

It emerges that regarding the seven mitzvos that were given to all Bnei Noach, the principle of the law of the kingdom is the law would apply, and a claim of coercion would not be valid.

According to this, the Ketzos HaChoshen explains the argument between Pharaoh and the midwives. Pharaoh asked them, “Why didn’t you listen to my commandment? The law of the kingdom is the law and since I the king decreed that all the Jewish children should be killed, you are obligated to listen to me!” They responded to him, “Your decree is not a universal one; it was only issued regarding the Jewish children and not to any others. Accordingly, the principle does not apply and we are not obligated to adhere to the laws of the kingdom. Thereupon, Pharaoh immediately decreed that all children born must be thrown into the sea.

Reb Shlomo Kluger uses this principle to explain Adam HaRishon’s response to Hashem. He answered, “The woman that you gave to me gave me from the tree and I ate.” What kind of answer was this? Adam HaRishon was saying that since his was wife was here as well and she was not commanded not to eat from the tree. Therefore, the law of the kingdom does not apply and that is why he ate.

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Borrower Lending to Another

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Rava said: If their father (after he died) left them a cow which was borrowed by him, they may use it for the entire period for which it was borrowed.

The commentators ask: How are the heirs permitted to use it? The halachah is that a borrower is not permitted to lend the item out to anyone else, for the owner can say, “I do not want my deposit to be in the hands of someone else”!?

The Hagahos Mordechai answers that since it is self understood that a borrower will give the item to his wife and children, this would be permitted even after the borrower’s death.

The Machaneh Efraim asks on this interpretation that if so, it should only be permitted by the borrower’s sons and only if they are supported by the father!? Otherwise, it should be forbidden, and from the halachah, this does not appear to be the case!?

Reb Akiva Eiger answers that the halachah that a borrower is not permitted to lend the item out to anyone else is only l’chatchilah; however, once he lends it out, the owner cannot take it away from him. Therefore, in this case, where the children took possession of it through an act of Heaven, they are permitted to use it.

The Erech Shai answers that the owner may be particular only to say that he did not intend to lend it out to someone else; however, with respect to the death of the borrower, which is not such a common occurrence, he cannot say that if I would have known that my cow would end up by the inheritors, I would not have lent it in the first place. The heirs therefore are permitted to use it.

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Save us from Brazenness

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We conclude the daily morning blessings with the following: Blessed are You, Hashem, who bestows beneficent kindness upon His people Israel (Hagomel chasadim tovim l’amo Yisroel). This is immediately followed by the tefillah, May it be Your will, Hashem, my God, and the God of my forefathers, that You rescue me today and every day from brazen men and from brazenness etc. What is the connection between the two tefilos?

Reb Shmuel Leider in Nitei Eishel explains as follows: Our Gemora states: Rabbah said: Why did the Torah say that one who admits part of a claim must swear? It is because we assume that no man would be so insolent to deny his obligation in the face of his creditor. And since the Holy One, Blessed be He has showered us with beneficent kindness without any limits whatsoever, so much so that we cannot even thank Him sufficiently. As we say in nishmas: Even if our mouths would be as full of song as the sea, and our tongue as full of joyous song as its multitude of waves, and our lips as full of praise as the breadth of the heavens etc., we still could not thank You sufficiently for even one of the thousand thousand, thousands of thousands and myriad of favors that You performed for our ancestors and for us. Accordingly, we are debtors to Hashem, so immediately after we thank Hashem for all the kindness He does for us, we pray that He should save us from brazenness, i.e. we should not Heaven forbid act insolently towards Hashem after all the kindness that He bestows upon us.

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Oath Taken Outside of Beis Din

Rav Nachman said (Bava Kamma 106) that if a custodian swears falsely outside of Beis Din and afterwards witnesses testify against him, Rav would concede that he is still liable to pay kefel.

Rashi explains that an oath taken in Beis Din is stronger than one taken outside of Beis Din, and if one swears in Beis Din, the claim against him is dissolved.

It is also evident from the Gemora that if the plaintiff jumped up and adjured the custodian to swear before Beis Din had the chance to impose the oath upon him, and afterwards he admitted, Rav would concede that he is liable in paying the extra fifth and to bring a korban asham, but he will not be liable to pay the kefel.

The Rishonim cite Rabbeinu Chananel who explains that one who is Biblically mandated to take an oath in Beis Din, and he swears outside of Beis Din, or he swore in Beis Din before the court imposed the oath upon him, he is not exempt from his obligation and he can be mandated to swear again.

The Ramban and the Rashba disagree and hold that an oath taken outside of Beis Din is regarded as a valid oath and he would not be required to swear again. Our Gemora holds that one is not liable to pay kefel for such an oath, for it is not as strong as an oath imposed by the court.

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Abstaining from Wine

Rabbi Elozar HaKappar asks (Bava Kamma 91) : What does the verse mean when it says, “and he shall atone for him for having sinned on his soul?” What “soul” did he “sin” against? It must be referring to the fact that he pained himself by abstaining from wine. This additionally teaches us that if this person who merely abstained from wine is called a sinner, someone who abstains from many things is certainly a sinner.

Ben Yehoyadah explains why one who deprives himself from wine or any food is regarded as a sinner. Portions of one’s soul are contained within foods and drinks. When one recites a blessing before eating these foods, he can cause a remedy for those parts of the soul, and through his blessing, they will be able to go to their rightful place. It emerges that one who declares himself to be a nazir and therefore refrains from eating grapes or drinking wine, is sinning regarding his soul, for now his soul will remain deficient.

Furthermore, there are many mitzvos where wine is required, such as kiddush on Shabbos and Yom Tov, havdalah, birkas hamazon, bris milah and sheva brochos. Chazal established the mitzvos in this manner in order to rectify the sin of Adam Harishon, which was with wine. One who vows to be a nazir and therefore abstains from drinking wine causes anguish to his soul.

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Afflictions Purge a Person's Sins

The Gemora (Bava Kamma 91) states that if a master knocks out the tooth of his slave, or if he blinds his eye, he must release the slave.

It is noteworthy that Rabbi Yochanan in the Gemora in Brochos (5a) derives from here that a person is considered fortunate if Hashem inflicts him. It is taught through a kal vachomer as follows: If the loss of a tooth or an eye, which is only one of the limbs in a person’s body, nevertheless, a slave gains his freedom because of it, then afflictions, which cleanse the person’s entire body, should certainly free a person from sin because of them!

Rish Lakish derives this same lesson from a different source. He says: The word covenant is written with respect to salt and the word covenant is written with respect to afflictions. Just as salt sweetens the meat, so too, afflictions will cleanse a person from his sins.

The Bobover Rebbe in Kedushas Tziyon notes that there is a distinction between the two expositions. According to Rabbi Yochanan, the afflictions will only cleans a person if they emanate from Heaven, similar to the halachos of a slave, where he will only be set free if his master knocks out his tooth or eye. He will not gain his freedom if someone else injures him. However, according to Rish Lakish, any type of afflictions will cleanse him, in the same manner as the salt sweetening the meat. It makes no difference as to who applies the salt.

Based upon this, Rav Tzvi Pesach Frank explains the following. It is written [Shmos 6:5]: And also, I heard the moans of the children of Israel, whom the Egyptians are holding in bondage, and I remembered My covenant. The Jewish people thought that the Egyptians were their masters and they were those who were afflicting them. They did not realize that their suffering was decreed from Heaven. Because they didn’t know who was causing them their hardships, they did not gain their freedom. It was only because Hashem remembered His covenant, that all afflictions cleanse a person from his sins, that was the reason they were released from the bondage.

Reb Meir Shapiro adds to this: If a slave does not come to court and testify that his master knocked out his tooth or eye, he will not gain his freedom. If he says that it happened by happenstance, he will not go free. So too, it is with afflictions. If a person does not believe with complete faith that the afflictions are affecting him because of Divine Providence, the afflictions will not purge him of his sins. However, if this principle was derived through the gezeirah shavah from salt, it would not make any difference.

The Rashba was asked the following question: If a slave initiates a fight with his master and strikes the first blow, and the master counters with some strikes of his own and knocks out the slave’s tooth, will the slave gain his freedom?

He replied that the slave goes free. The proof is from the aforementioned Gemora, where Rabbi Yochanan derived that afflictions will cleanse a person from his sins through a kal vachomer from the laws of the slave. How can the two be compared? Afflictions come to a person because he has sinned! It was his own fault! Perhaps, then, those afflictions will not purge him from his sins!? Evidently, we see that a slave also gains his freedom, even if he was the one who initiated the fight!

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Humiliation with Words

The Gemora (Bava Kamma 91) stated: If someone spat at his friend and the spittle hit him, or he removed the hair covering of a woman or his friend’s cloak, he is required to pay him/her four hundred zuz. Rav Papa taught: This is only if the spittle reached his friend, but if it only hit his clothes, he is exempt from paying this fine.

The Gemora asks: Shouldn’t the perpetrator be liable similar to one who humiliates his fellow with words? The Gemora answers: It is evident from here that one who embarrasses his fellow with words is exempt from any liability.

The Rosh cites Rav Shrira Gaon: Although it seems from the Scriptural verses that one is not liable for humiliating his fellow with words, nevertheless, the Sages would excommunicate him until he appeases his fellow properly according to his honor. He notes that it is logical to assume that there is a higher degree of embarrassment for one who is humiliated with words more than one, who was embarrassed through a wound, for there is nothing worse than slandering one’s fellow.

The Rambam (Hilchos Chovel 5:7) rules that one who admits in Beis Din that he wounded his fellow privately, he will be liable to pay for the embarrassment, for even though the victim was not humiliated at the time of the wounding, he was humiliated at the time of the admission in Beis Din.

The Minchas Chinuch (49:7) asks: Isn’t this a classical case of embarrassing one’s fellow with words, and one is not liable for such humiliation?

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Hekdesh and a Lien

Hekdesh vs. Lien

The Gemora cited Rava’s statement, that a lien can be broken by three mechanisms: hekdesh (consecration), chametz on Pesach, and shichrur (freeing a slave). The Rishonim discuss the parameters of hekdesh breaking a lien.

Type of Hekdesh

Rashi states that this is only true for hekdesh haguf – consecration of an item itself, and not just its value. If someone consecrates an animal as a sacrifice, the animal itself is to be used for the sacrifice, and is therefore considered hekdesh haguf. If someone consecrates other items, they will be sold, with their value being used by hekdesh. This is called hekdesh damim (monetary consecration).

Tosfos explains that since hekdesh haguf is not redeemed (unless the animal becomes unfit), once it applies to an animal, a lien does not remove it. However, just as hekdesh damim can be removed via redemption, it is removed by the lien.

The Rambam (Malve v’lo’ve 18:7) holds that both types of hekdesh remove a lien.

Rabbeinu Tam (Tosfos Gittin 40b hekdesh) says that on movable items, both types of hekdesh remove a lien, but on real estate, only hekdesh haguf removes a lien, since real estate is considered to currently be property of the lien holder.

The Meiri states that the type of hekdesh is immaterial, and the only issue is whether the borrower has any more assets for the lien holder to collect from. If there are more assets, the hekdesh removes the lien, but if there are no more assets, the hekdesh does not affect the lien.

How?

Tosfos (Gittin 40b hekdesh) state that Rava is consistent with his opinion (Pesachim 30b) that a creditor is considered an owner of property he collects only from the time of collection. Therefore, until that time, the assets are still the property of the borrower, and he has the power to consecrate it.

Konam

The Rishonim discuss whether forbidding an item through a konam (vow) can also break a lien, inasmuch as a konam is akin to a personal consecration. Most Rishonim say that only a konam that forbids everyone from benefiting from the item can break the lien, since such a konam is similar to consecration in it universal application. Some Rishonim (Meiri, Ran, Nimukei Yosef) hold that even a konam only prohibiting the creditor from benefit breaks a lien, but we pressure the borrower to undo his konam, since he unfairly has harmed the creditor alone by his action.

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Paying for Humiliation

Rav Abba bar Mammal inquired (Bava Kamma 86) : What would be the halachah if someone insulted someone while he (the victim) was sleeping, and then he died (without ever realizing that he was insulted)?

Rav Zevid explains the inquiry as follows: Does the assailant pay for embarrassment because the victim is insulted, and since in this case, he died before waking and was never insulted, no payment should is required, or is the payment perhaps on account of the public degradation, and since here there was degradation, he should be liable?

The Gemora cites a braisa: Rebbe says that a deaf-mute is subject to be paid for embarrassment. A deranged person is not subject to be paid for embarrassment. Regarding a minor, it depends.

Rav Pappa explains: If the minor is old enough that if he is reminded of some insult, he feels embarrassed, he will be paid for embarrassment. However, if when reminded, he still is not embarrassed, he is not subject to be paid for embarrassment.

It is noteworthy that the Gemora in Rosh Hashanah discusses a case where someone at times is normal and at times, he is deranged. It is some sort of bipolar disorder where he cycles on and off from “normal” to “abnormal.” Reb Avi Lebovitz wonders what the halachah would be If one embarrassed this person when he was deranged, but later he becomes normal and is embarrassed about what happened, would the assailant be responsible? Do we say that since at the time that the act was done he was deranged, the assailant is exempt, or do we say that since the obligation for paying embarrassment is for the feeling of humiliation, the assailant should be liable?

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Permission to Heal

The Gemora (Bava Kamma 85) states that from the verse, “v’rapo yerapei” teaches us that a doctor is given permission to heal a sick person.

Rashi explains that if not for that verse, I might have thought that the doctor would be forbidden from healing him, for Heaven has decreed that he should be ill; it would be contrary to his destiny. The Torah teaches us that he may be cured.

The Rishonim ask from the Gemora above (81b) which cites a braisa: How do we know that one must return another lost person? The verse says, “And you will return it to him.” Is it not obvious then that a doctor is Biblically obligated to save a person from dying?

The Moishav Zekeinim answers that the Torah is teaching us that the doctor is allowed to charge for his services, for otherwise, I would have thought that since it is a mitzvah, he must do it for free.

Tosfos HaRosh answers that without the extra verse, I would have thought that a doctor may only heal a person when the sickness was man-induced. However, an illness that emanated from Heaven, it would be forbidden for the doctor to heal him, for it might be as if he is nullifying the word of God. The Torah teaches us that all sicknesses may be cured.

Tosfos Rabbi Yehudahh Hachasid explains why the Torah wrote v’rapo yerapei” twice: The Torah is teaching us that a second doctor may heal an ill person even after a first doctor was unsuccessful, for we might have thought that by the fact that the first doctor was unable to cure him, this is a proof that Hashem does not want him healed and it is forbidden for the second doctor to attempt to heal him. The Torah teaches us that even the second doctor is permitted to cure him.

The Hadar Zkeinim answers that if not for the extra verse, we would think that only a person who is drowning, where he is dying at that moment, is it permitted to save him. However, if one is sick and is dying slowly, perhaps it is forbidden to heal him. The Torah teaches us that even this is allowed.

The Ramban adds that this verse is necessary to teach the doctor that he should not say, “Why should I get involved? Perhaps I will err and cause the person to die.” The Torah is telling him that he need not be concerned for this.

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Insights for Bava Kamma 83

By: Reb Yechezkel Khayyat

Dovecotes of Non Jews

The Gemora lists the dovecote of a non-Jew as not meriting a trap free zone around it. The Rishonim discuss the reason for this. The Meiri states that the Gemora was only referring to non Jews who are barbaric and have no religion at all. These people’s property is not afforded any protection, due to their barbaric behavior. All other dovecotes are protected, even if not owned by Jews. Rashi, on the other hand, understands the restriction of traps to be a special protection accorded to fellow Jews, as a kindness. This kindness is not extended to non-Jews.

Slave Value

The Mishna states that to estimate nezek, we evaluate the value of a slave with and without the damage. The Shitah quotes Rav Yehonasan who says that we do not estimate how much the victim feels he lost due to the permanent damage done to his body, since that would be so extreme as to be unfair to the damager. One would never put a reasonable price on his own physical body parts, and the resulting estimation would be exorbitant.

Rashi states that the slave market we are referring to is the market for an eved ivri – a Jewish slave. The Ketzos explains that a Jew cannot be estimated as a non Jewish slave, since he would never be one. The Rosh, however, says the market is for non Jewish slaves. Rashi’s opinion is difficult, as Jewish slaves are only sold for six years, and therefore the difference in value will not accurately reflect the damage done. Rabbi Akiva Eiger says that even if we were to continually reevaluate the damages every six years (to reflect the ongoing loss), this would be unfair to the damager, since the ultimate sum will be much larger than the one time loss to a permanent non Jewish slave. The Maharshal suggests that Rashi agrees that the slave market used for estimation is that for non Jewish slaves, but that Rashi here is simply giving a rationale for applying such an estimation to a free man. Since a free man can sell himself as a slave, this indicates a monetary loss ascribable to the damage done to his body. See Ketzos 420:1 for more detail on Rashi’s opinion.

Ayin Tachas Ayin

The Gemora explains how we know this verse is not literal. The Rambam (Chovel umazik 1:6) states that even though the straight reading of the verse is at odds with the halachah, the halachah comes from Moshe Rabbeinu himself, and has been always accepted. The commentators discuss why the Torah used this phrase, if the real meaning is not literal. The Ibn Ezra states that the Torah is telling us that if the damager would not pay money, it would be fitting for him to lose his eye. The Seforno similarly states that in a pure legal sense, the appropriate punishment would be physical, but the Torah was kind to allow monetary punishment instead. See the Ibn Ezra (Shmos 21:24) for a discussion of logical proofs to the monetary punishment.

The Gr”a states that the verse itself hints to the monetary punishment. The word Ayin is three letters – ayin, yud, nun. If we take the letters after each of those letters, we have the letters pei, kaf, samech. Rearranging those letters spells kesef – money. The verse tells us that for the eye, the damager pays tachas ayin – the letters below (after) ayin.

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Raising Dogs

Rabbi Eliezer Hagadol (Bava Kamma 83) stated that one who raises dogs is equivalent to raising pigs, and he therefore is included in the curse of the Sages. The Shitah quotes Rav Yehonasan who says that the opinion in the first braisa agrees that a dangerous dog may not be raised, but only due to the verse of ma’akeh (a fence), which states lo tasim damim – you shall not introduce blood in your house.,which was quoted on BK 15.

The Maharshal (BK 7:45) discusses why the prevalent custom in his time was for Jews to have dogs in their property. He first considers the possibility that since we live amongst non Jews, some of whom are hostile to us, we may raise the dogs for protection, just as the Gemora allows this for border towns, including Nehardea. He rejects this possibility, since even when kept for protection, the dog must be chained down during the day (when people walk around and may get hurt), and only let loose at night (when people are not walking around). The prevalent custom is to keep the dogs unchained even during the day. He therefore states that the Gemora’s statements on daf 15 and 83 are referring solely to a kelev ra – a bad dog, which can harm and scare people, by harming or barking. The Mishna therefore referred to one who raises Hakelev – the dog, i.e., the prohibited kelev ra – and not just kelev – a dog. However, our dogs, which are docile and do not scare or hurt people, are not included. Instead, they are included in the category of kelev kufri (80a), which Rashi explains as either small or docile dogs. People are used to these dogs, and are not even scared of them. Any dog that scares people – even if it cannot harm them - is forbidden, as indicated in the story of the pregnant woman.

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Greek Wisdom

The Gemora (Bava Kamma 83) states that Greek wisdom is not the Greek language, but does not explain what Greek Wisdom is. This is, of course, extremely relevant, as the braisa stated that one who teaches his son Greek Wisdom is cursed. The Shitah quotes a Gaon who says that Greek wisdom is a form of communicating in hints, without all people understanding the content (similar to the Oracles of Greek history). This fits well with the story the Gemora quoted (82b), in which an old man communicated important information to the army outside of Yerushalayim, which led to the curse. The Shitah quotes the Rema who says that Greek wisdom is predicting the future based on astrology. The Meiri says that Greek wisdom is Greek philosophy, which was forbidden due to its tendency to attract people and draw them away from many fundamental religious principles. Those who had to interact with the royalty needed to be versed in these areas, in order to be socially acceptable to the royal mileui.

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Seudas Mitzvah

Seudas Mitzvah

By: Reb Avi Lebowitz

The Gemora (Bava Kamma 80) tells Rav and Shmuel and Rav Assi once met at a circumcision of a boy, or as some say, at the house for the salvation of a son (the redeeming of a firstborn). Rav would not enter before Shmuel, nor Shmuel before Rav Assi (for Rav Assi was greater), nor Rav Assi before Rav (for Rav Assi was Rav’s student). They therefore discussed who should go in last, and they decided that Shmuel should go in last, and that Rav should enter and then Rav Assi.

Rashi comments that the “week of the son” refers to a bris milah, whereas the “salvation of the son” refers to a party that was done for the pidyon haben (redemption of the firstborn).

The Maharsha points out that from Rashi we find a source for making a party for pidyon haben, but it is not a source for making a party for a bris milah.

The Maharsha seems to understand that the requirement to make a party for pidyon haben is better sourced than the requirement to make one for bris milah. However, the Maharshal (Yam Shel Shlomo 37), in his famous discussion about seudas mitzvah asks a question from the Gemora in Chulin 95b which states that Rav did not partake in any “voluntary” feast!? Why then was Rav participating in this seudah? The Maharshal explains that by milah, the feast itself is a mitzvah just like it is by a wedding, however, there is no mitzvah to have a party by pidyon haben. The Maharshal clearly understands that whether it was milah or pidyon haben, Rav was joining and eating at the party. He assumes that the requirement to have a seudah for milah is more basic than having one at pidyon haben. Since the seudah of pidyon haben is only voluntary, how could Rav join and eat? [Evidently he holds that it is not a mitzvah at all by pidyon haben!?]

From this, the Maharshal is mechadesh a major yesod that any seudah whose purpose is to give praise to Hashem and either publicize a mitzvah (such as pidyon haben) or a miracle (such as the birth of a child which is Rabbeinu Tam's explanation of “salvation of a son” i.e.a shalom zachor) qualifies as a seudas mitzvah.

The source for a siyum on a masechta of Gemora qualifying as a seudas mitzvah, the Maharshal says, is from a Gemora in Shabbos 118b that Abaye would make a party when he would see a torah scholar finish a masechta (the Maharshal then launches into a suggestion to make the bracha of “hasimchah bi’me’ono” at a siyum, which he retracted from after he felt that it was the reason that a siyum he once attended was totally ruined). At the end of the perek, the Maharshal continues to show from this Gemora in Shabbos that even those who aren't actually finishing the masechta should celebrate with the one completing the masechta, just as we find that Abaye would make the seudah for his students even when he didn't actually learn it with them.

The Maharshal also points out that the Gemora in Ta'anis 30b cites that one of the reasons for establishing a Yom Tov on the fifteenth of Av was because it was the day that they completed the mitzvah of cutting the wood for the mizbei’ach. Just as there is a point to make a seudah and Yom Tov upon the completion of a mitzvah, so too, there would be with the completion of a masechta, because there is no greater mitzvah than completing a sefer. As surprising as it may seem, the seudah at the siyum masechta seems to be better sourced as a seudas mitzvah, more than bris milah (which the Maharsha questions) and pidyon haben (which the Maharshal initially questioned).

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