[43a - 50 lines; 43b - 27 lines]

1)[line 1]טביחה ומכירהTEVICHAH U'MECHIRAH - slaughter or sale (TASHLUMEI ARBA'AH VA'CHAMISHAH - a thief's quadruple and quintuple restitution for the theft and slaughter or sale of a sheep or ox, respectively)

(a)If a thief surreptitiously steals an object from a fellow Jew, and is found guilty of the theft in court based on the testimony of valid witnesses, he must return the object (if it is still in its original state) or its value (if it is not) to its owner (Vayikra 5:23). In addition, the thief is obligated to pay the victim of the theft the value of the stolen object a second time. Restitution of the value of the stolen object is called "Keren," and the additional payment is known as "Kefel" (See Background to Kidushin 18:2).

(b)If the object that was stolen was a live sheep or ox, and the thief either slaughtered or sold it, the Torah (Shemos 21:37) places an even stiffer fine on the thief. In the case of a stolen sheep that was slaughtered or sold, the thief must compensate the owner a total of four times its actual value ("Arba'ah"), while in the case of a stolen ox that was slaughtered or sold the thief must compensate the owner a total of five times its actual value ("Chamishah"). This law does not apply to any other object or animal that is stolen. Chazal (Bava Kama 79b) explain that the Torah was more lenient with a person who steals a sheep than with one who steals an ox, since he already suffered a somewhat demeaning experience of walking with a sheep on his shoulders (as opposed to the ox-thief, who presumably led the ox on foot before him).

(c)A thief does not pay Arba'ah va'Chamishah for slaughtering a sheep or ox unless he, or a person he appoints, performs a proper ritual slaughter (i.e. a Shechitah of the type that normally permits an animal to be eaten). According to some Amora'im (Bava Kama 68a), a thief does not pay Arba'ah va'Chamishah for selling a sheep or ox unless he sold it after "Ye'ush Ba'alim" (i.e. the owner lost all hope of recovering the sheep or ox, see Background to Gitin 37:30:a), while according to others he only pays Arba'ah va'Chamishah if he sells it before Ye'ush Ba'alim.

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

2)[line 5]"[כי יגנב איש שור או שה] וטבחו או מכרו [חמשה בקר ישלם תחת השור וארבע צאן תחת השה]""[KI YIGNOV ISH SHOR O SEH,] U'TVACHO O MECHARO; [CHAMISHAH VAKAR YESHALEM TACHAS HA'SHOR, V'ARBA TZON TACHAS HA'SEH.]"- "[If a person steals an ox or sheep and then] slaughters or sells it, [he must repay five oxen for each ox, and four sheep for each sheep.]" (Shemos 21:37)

3a)[line 10]בשחוטי חוץSHECHUTEI CHUTZ

The Torah obligates a person to bring all Kodshim that are fit to be offered as sacrifices to the Beis ha'Mikdash, as it states in Vayikra 17:1-7. Besides the Mitzvas Aseh, there is a Lav prohibiting their slaughter outside of the Azarah (Shechutei Chutz). The punishment for transgressing this is Kares (SEFER HA'CHINUCH Mitzvah #186).

b)[line 11]"[איש איש אשר ישחט... במחנה או אשר ישחט מחוץ למחנה...] דם יחשב לאיש ההוא דם שפך...""[ISH ISH ASHER YISHCHAT... BA'MACHANEH O ASHER YISHCHAT MI'CHUTZ LA'MACHANEH...] DAM YECHASHEV LA'ISH HA'HU DAM SHAFACH..."- "[Which ever man there is of the house of Yisrael, who kills an ox, or lamb, or goat, in the camp, or who kills it out of the camp, and brings it not to the door of the Tent of Meeting, to offer an offering to HaSh-m before the sanctuary of HaSh-m,] it shall be considered as bloodshed for that man; he has shed blood, [and that man shall be cut off from among his people.]" (Vayikra 17:3-4)

4a)[line 19]אנוסANUS- coerced

b)[line 20]שוגגSHOGEG- unintentionally

c)[line 20]מוטעהMUT'EH- mistaken

5a)[line 24]"מדוע בזית את דבר ה' לעשות הרע בעיני ה' אוריה החתי הכית בחרב ואת אשתו לקחת לך לאשה ואתו הרגת בחרב בני עמון""MADU'A BAZISA ES DEVAR HASH-M LA'ASOS HA'RA B'EINEI HASH-M: URIYAH HA'CHITI HIKISA BA'CHEREV, V'ES ISHTO LAKACHTA LECHA L'ISHAH, V'OSO HARAGTA B'CHEREV BNEI AMON" - "Why did you despise the word of HaSh-m to do what is evil in the eyes of HaSh-m: Uriyah ha'Chiti you smote by the sword, his wife you took for yourself as a wife, and him you killed with the sword of the Bnei Amon." (Shmuel II 12:9) (DAVID HA'MELECH AND URIYAH HA'CHITI)

See Background to Moed Katan 9:36, Shekalim 15:43.

b)[line 24]אותו הרגתOSO HARAGTA (URIYAH HA'CHITI)- Uriyah ha'Chiti was guilty of treason (Gemara below, and in Shabbos 56a, based upon Shmuel II 11:11). As a result, David instructed his general Yoav to see to it that Uriyah be sent to the front lines of the battlefield to be killed by the Amonites. Rebbi Yonasan (Shabbos ibid.) claims that anyone who states that David sinned is mistaken. Even though he agrees, Rebbi states that the verses are so condemnatory because he should have tried him in front of the Sanhedrin.

6)[line 28]חייב בדיני שמיםCHAYAV B'DINEI SHAMAYIM- his punishment is not administered by the courts, but through divinely administered justice

7a)[line 30]דינא רבהDINA RABA- a great punishment

b)[line 30]ודינא זוטאV'DINA ZUTA- and a lesser punishment

8)[line 35]מורד במלכותMORED B'MALCHUS- (lit. rebellion against the king) treason

9)[line 36]"... ואדני יואב ועבדי אדני על פני השדה חנים...""... VA'ADONI YOAV V'AVDEI ADONI AL PNEI HA'SADEH CHONIM..." "[And Uriyah said to David, 'The ark, and Yisrael, and Yehudah remain in tents;] and my lord Yoav and the servants of my lord are encamped in the open fields; [shall I then go into my house, to eat and to drink, and to lie with my wife? As you live, and as your soul lives, I will not do this thing.']" (Shmuel II 11:11)- Three explanations of Uriyah's treason are found in the Rishonim: (a) he called Yoav "my lord" in the presence of David ha'Melech (RASHI); (b) he did not comply with David's command that he go home to his wife (TOSFOS, citing Rabeinu Meir, father of Rabeinu Tam); (c) he mentioned Yoav before he mentioned David ("the servants of my lord") (TOSFOS)

10)[line 41]שליח נעשה עדSHELI'ACH NA'ASEH ED- a messenger appointed to bring money or an object for Kidushin to a woman or to return money to a creditor can join with another person to testify that the money or object reached its destination. Similarly, a messenger appointed to bring a Get or Shtar can become a witness as to its validity (Gitin 5b).

11)[line 44]אלומי קא מאלימנא למילתיהALUMEI KA ME'ALIMNA L'MILSEI- the testimony about a certain occurrence is strengthened if the messenger sent to execute the action becomes one of the witnesses to its doing (RASHI)

12)[line 48]שליח נעשה עדSHALI'ACH V'ED ECHAD- the messenger and one other witness [can testify together about a certain occurrence]

43b----------------------------------------43b

13)[line 4]דאיתתא לבי תרי לא חזיאD'ITESA L'VEI TREI LO CHAZYA- that a woman cannot marry two men

14)[line 5]הני מיפלג פלגיHANEI MIFLAG PALGEI- these Sheluchim could have divided the money

15)[line 6]המלוה חבירו בעדים צריך לפורעו בעדיםHA'MALVEH CHAVEIRO B'EDIM TZARICH L'FOR'O B'EDIM

(a)A person who borrows money, who, when requested to repay the loan, claims that he has done so previously, is believed because of the fact that he could have made a more successful claim, that the loan never took place. This is known as "Migo" (Heb. Mitoch - because of [the fact that he could have made a better claim, he is believed with this claim]).

(b)Even if the loan was made using a Shtar (loan document), there are those who rule that the debtor is believed to claim that he has repaid the loan since he could have claimed that the Shtar was forged. (He is believed up until the point that the creditor validates the document, which nullifies the Migo.) Others argue, ruling that a Migo is not believed against a Shtar (Kesuvos 19a).

(c)There is an argument as to whether the above also applies to a loan that was made in the presence of witnesses (Bava Basra 170a). One opinion rules that if the loan was made in the presence of witnesses, the debtor must repay it in the presence of witnesses ("Tzarich l'For'o b'Edim"). Therefore, if the loan was made in the presence of witnesses and the creditor brings these witnesses to Beis Din, the debtor is not able to claim that he repaid the loan until he brings his own witnesses to that effect. The other opinion rules that if a person borrows money in the presence of witnesses, he need not have to return the money in the presence of witnesses ("Ein Tzarich l'For'o b'Edim"), and therefore he is believed with a Migo if he claims that he repaid the loan in private.

(d)This argument applies as well to messengers to whom money was given in the presence of witnesses. If they cannot carry out their assignment and they return the money to the sender, they may or may not need to return it in the presence of witnesses.

16)[line 15]נערה המאורסהNA'ARAH HA'ME'URASAH - a betrothed Na'arah (with whom a man has performed Erusin, but not Nesu'in)

A girl is a Ketanah (minor) until she has two pubic hairs after she enters her twelfth year. During the following six months she is a Na'arah (maidenhood). When six months elapse she becomes a Bogeres (adult).

17)[line 18]וכל שאין יכולה לשמור את גיטהV'CHOL SHE'EIN YECHOLAH LISHMOR ES GITAH- and any girl who is not able to guard her Get, i.e. a Shotah (RASHI)

18)[line 25]דמפקעתD'MAFKA'AS- that he removes her

19)[last line]מאמרM A'AMAR

(a)If a married man dies childless, his widow may not marry whomever she pleases. She first must undergo Yibum (levirate marriage, that is, she must marry her dead husband's brother), as the Torah states in Devarim 25:5-10. The only way to perform Yibum mentioned in the Torah is through marital relations with her. Giving her money (Kidushei Kesef) or a document (Kidushei Shtar) does not achieve marital ties between them as it does with a woman who is not a Yevamah (Kidushin 4b). As RASHI writes (Yevamos 52a DH Nasan), it is impossible to effect Kidushin with one's brother's wife because Kidushin do not "take hold" ("Einam Tofsin") with an Ervah (see Insights to Yevamos 20:3).

(b)However, Chazal did enact a process called "Ma'amar" for a Yevamah, in which the Yavam can "effect Kidushin" with his Yevamah in a manner equivalent to Kidushei Kesef or Shtar in normal Kidushin. It is called Ma'amar since it is an institution of the Chachamim ("Ma'amar Chachamim" - HAGAHAH to SHULCHAN ARUCH Even ha'Ezer 170:2). They decreed that a Yavam should make "Kidushei Ma'amar" before he has relations with her for the sake of the Mitzvah of Yibum, for reasons of modesty (Yevamos 52a). Kidushei Ma'amar are like an introduction to the act of Yibum. If the Yavam decides not to go through with the Mitzvah of Yibum, he must give the Yevamah a Get to remove the status of Ma'amar. (The Gemara discusses whether this "Kidushin" is exactly similar to normal Kidushin, and may not be performed against the will of the woman, or if it is slightly similar to the Mitzvah of Yibum, and therefore may be preformed against her will - Yevamos 19b.)

(c)Since Ma'amar does not effect a full acquisition of the Yevamah as the wife of the Yavam as does Yibum, the bond of Zikas Yibum between them still exists. Therefore, if the Yavam wishes to divorce the Yevamah after Ma'amar, a Get (bill of divorce) is not enough; he must perform Chalitzah in order to render her free to marry whomever she pleases, besides divorcing her with a Get. Thus, if the Yavam wants to "divorce" the Ba'alas ha'Ma'amar before Yibum, he must both give her a Get and perform Chalitzah.

(d)According to the conclusion of the Gemara (Yevamos 29b, as understood by most of the Rishonim), Beis Shamai disagrees with what has been presented above, and rules that Ma'amar effects a full acquisition of the Yevamah mid'Oraisa, not only mid'Rabanan. Reish Lakish presents his explanation of the Beraisa in our Gemara according to the opinion of Beis Shamai (TOSFOS DH Avad). According to some Amora'im, Beis Shamai even rules that if the Yavam wants to divorce the Yevamah after Ma'mar, a Get is enough and Chalitzah is not required (ibid.). [However, RASHI (Yevamos 29b DH Hashta) explains that even according to Beis Shamai, Ma'amar is only mid'Rabanan, see Insights ibid.] Other Tana'im are in doubt as to whether Ma'amar effects a marriage to the Yevamah mid'Oraisa or only mid'Rabanan (Rebbi Shimon, Yevamos 18b).

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