OUTLINES OF HALACHOS FROM THE DAF
Prepared by Rabbi P. Feldman of Kollel Iyun Hadaf, Yerushalayim daf@dafyomi.co.il http://www.dafyomi.co.il
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BAVA KAMA 2 (3 Teves) - Today's Dafyomi material has been dedicated in memory of Hagaon Rav Yisroel Zev Gustman Ztz"L (author of "Kuntresei Shiurim") and his wife, Rebbetzin Sarah Gustman (daughter of Hagaon Rav Meir Bassin, a Dayan in Vilna) in honor of the Yahrzeit of the Rebbetzin. Sponsored by a number of Rav Gustman's Talmidim (Yechiel Wachtel, Harav Naftoli Weinberg, and Harav Avrohom Feldman).
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1) WHO DECIDES IF LAND OR METALTELIM WILL BE PAID?
(a) Gemara
1. (Mishnah): It is the nature of all four Avos to
damage... If they damaged, the damager must pay from
Meitav (highest quality land).
2. 7a (Abaye) Contradiction: "From the best of his
field and vineyard he will pay" teaches that only
Idis may be paid. A Beraisa learns from "he will
return" that Shavah Kesef (something worth money)
may be given, even bran!
3. Answer (Rav Papa): All Metaltelim are considered
Meitav. If they can't be sold here, they can be sold
elsewhere. Land cannot be sold elsewhere. Therefore,
one who pays with land must give Idis, so it will be
easy to sell.
4. 9a (Rav Huna): Damages are paid with money or Idis.
5. 14b (Beraisa): 'Shavah Kesef' (in the Mishnah)
teaches that Beis Din collects only if the damager
has land. If the victim seized Metaltelim, Beis Din
collects the damages from them.
6. Question: How does 'Shavah Kesef' connote only if
the damager has land?
7. Answer (Rav Ashi): It is Shavah Kesef, but not money
itself. Everything except land is considered money,
for it can be taken elsewhere and sold.
8. Question (Rav Yehudah bar Chinena - Beraisa): "He
will return" includes anything worth money, even
bran (even if the damager has no land)!
9. Answer (Rav Huna brei d'Rav Yehoshua): We collect
from orphans only if they inherited land. (From the
damager himself, we collect from anything.)
(b) Rishonim
1. Rif (2a): Meitav must be given when paying land. All
Metaltelim are considered Meitav. If they can't be
sold here, they can be sold elsewhere.
i. Nimukei Yosef (Bava Basra 46b): The Gemara
connotes that if the seller has no money, he
cannot tell the buyer to keep the item. Rather,
he pays Metaltelim. If he has money, he pays
it. He is like a borrower. Many permit a
damager to give land, even if he has money. The
Rambam disagrees.
2. Rosh (1:5): Rashi explains that Rav Huna teaches
that if one has land or money, he may not pay with
Metaltelim. Also the Rif says that Rav Papa argues
with Rav Huna. R. Tam rules like Rav Huna. If he has
money or Meitav, he pays with it. If not, all
Metaltelim are Meitav. We must say that R. Tam holds
that Rav Papa does not argue. If not, he would rule
like him, for he is Basra. Rav Papa merely came to
answer the contradiction. He does not deviate from
the simple understanding of the verses, which
discuss paying with Meitav or money. Alternatively,
Rav Papa argues. Since Rav Ashi put Rav Huna's
answer last, even though Rav Huna preceded Rav Papa,
this shows that the Halachah follows Rav Huna. The
Rif's opinion is primary. Rav Kahana was a Talmid of
Rava; he is Basra, and he holds like Rav Papa. If he
held like Rav Huna, the verse must teach that he can
pay with the carcass even if he has money! The
primary text of Rav Huna says 'money or Meitav.' He
explains that the Mishnah requires Meitav, but money
is like Meitav.
3. Rambam (Hilchos Nizkei Mamon 8:9): Beis Din first
collects for the victim from the damager's
Metaltelim. If this does not suffice, the rest is
collected from his best land. As long as Metaltelim
are found, even bran, we do not take land.
i. (Gra CM 419:1): He holds that Rav Huna teaches
that the damager may give what he wants;
'money' includes Metaltelim. He and Rav Papa do
not argue.
4. Rosh (ibid.): Regarding a borrower, if he has
Metaltelim and land, we force him to give Metaltelim
if the creditor wants it. Since he gave money, he
collects whatever is closest to money, i.e.
Metaltelim. The can be sold anywhere.
(c) Poskim
1. Shulchan Aruch (419:1): Beis Din first collects
Metaltelim for a victim of damage. As long as
Metaltelim are found, even bran, we do not take
land.
i. Beis Yosef (CM 389 DH keshe'Ba'in): The Rosh
said that if the borrower has Metaltelim and
land, the creditor can demand Metaltelim, since
he gave money. The Tur understands that the
same applies to damages. Even though the reason
does not apply to damages, Chachamim did not
distinguish.
ii. Rebuttal #1 (SMA 1, Prishah DH Ro'in and
Drishah 1): A lender has the upper hand. If a
borrower has money or Metaltelim, he may not
pay land, even if it is Idis. He should get
back money, like he lent, or at least
Metaltelim, which are like money. They can be
sold anywhere. However, a damager has the upper
hand. He may opt to pay Meitav or Metaltelim.
This was Rav Papa's answer. He may pay
Metaltelim, for they are Meitav. He may pay
bran even if he has money. The Rosh (1:2) says
that it is the damager's choice, as long as he
does not give the victim less than he is
entitled to. The Beis Yosef and Ir Shushan say
that if the victim wants Metaltelim, the
damager must give them. This is unlike the Tur.
iii. Rebuttal #2 (Bach 1): The Magid Mishneh
(Hilchos Nizkei Mamon 8:10 and Chovel u'Mazik
1:1) says that the damager chooses which he
pays with.
iv. Rebuttal #3 (Gra 1): The Rambam learns from a
borrower. A borrower is different! If he has
money, he must return money. Compared to land,
Metaltelim are like money. Even Rav Huna, who
is stringent, allows paying damages with money
or Meitav. We hold like Rav Papa (who allows
paying with bran). All the more so, one may pay
with what he wants! The Rosh says 'and
regarding a borrower...', which implies that it
is different. Also, a borrower must pay money,
like he received. The Shulchan Aruch rules like
the Ramah; if he has money, he may not give
Metaltelim or land; if he has Metaltelim, he
may not give land. The Rambam holds that Rav
Huna includes Metaltelim in 'money', and
teaches that the damager may give what he
wants. He and Rav Papa do not argue.
v. Defense (Shach 2): The Rambam says that we
collect Metaltelim, without saying that it does
not depend on the desire of the victim or
damager. The Rambam and Tur say that if a
damager died and left land and Metaltelim, we
collect from the land. If a damager prefers to
give Metaltelim, we should say so on behalf of
the orphans! They should be no worse than the
damager! The Rosh and Mordechai say that R. Tam
connotes that the damager chooses what he wants
to give, but the Rambam, Sefer ha'Terumos, R.
Chananel, Ra'avan and Nimukei Yosef citing the
Ramah disagree. When explaining R. Tam, the
Rosh connotes that only a creditor can demand
Metaltelim. The Rosh concludes like the Rif,
who did not say that a damager can choose. The
Rif allows him to give bran in place of money.
This shows that the primary collection is with
Metaltelim. Surely, a damager cannot choose to
give land. It is unreasonable to say (like
Rashi) that the Gemara (14b) thought that we
collect only from one with land. Can one
without land damage at will, and be exempt?!
Rather, we collect Shavah Kesef against the
damager's will. The Gemara thought that Shavah
Kesef refers to land, but concludes that it is
Metaltelim. A creditor can demand Metaltelim. A
victim has better collection power, except for
money (a damager may pay Metaltelim instead),
for it says "Yashiv". There is no such source
for a borrower; so he must return money, like
he borrowed. There is no reason to distinguish
creditors from borrowers regarding taking land
in place of Metaltelim.
See also:
WITH WHAT MAY A THIEF PAY? (Bava Kama 5)
MAY A DAMAGER GIVE METALTELIM IF HE HAS MONEY? (Bava Kama 14)
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