PAST DEDICATION
BAVA KAMA 21-25 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the ninth Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.

[a - 34 lines; b - 27 lines]

1)[line 3]תרגמאTIRGEMA- he explained it

2)[line 3]דאפיך מיפךD'APICH MEIPACH- [the case of the first Beraisa in which the owner of a dog or goat is exempt is one] in which [the animal climbed up] in the manner of the other [species]

3)[line 3]זקיראZEKIRA- jumping (which is how a goat normally climbs)

4)[line 4]סריכאSERICHA- a) clawing up (which is how a dog normally climbs; RASHI); b) jumping off of its hooves (which is similar to how a dog jumps after digging its claws into the ground; TOSFOS DH Gadya)

5)[line 4]אמאי פטורים?AMAI PETURIN?- why are they exempt [just because their animal damaged in an unusual manner]? [It should an example of Keren Tam!]

6)[line 6]אשו משום חציו / אשו משום ממונוISHO MISHUM CHITZAV / ISHO MISHUM MAMONO (ESH: The Reason for Why one is Obligated to Pay for Damage Caused by a Fire that he Ignited)

(a)Rebbi Yochanan and Reish Lakish disagree as to the nature of one's responsibility for the damage caused by a fire which he ignited. Rebbi Yochanan understands that "Isho Mishum Chitzav". This means that he considers one's fire to be akin to arrows that he shot from a bow. As arrows are an extension on one's Ko'ach (force), this means that Rebbi Yochanan considers damage caused by fire to have been directly inflicted by the igniter himself. Reish Lakish maintains that "Isho Mishum Mamono". This means that one's fire is akin to his animal or other possession that causes damage. As such, damage caused by fire is not considered to have been inflicted directly by the igniter.

7)[line 8]חציו מכחו קאזליCHITZAV MI'KOCHO KA'AZLEI- his arrows fly as a result of his force

8)[line 11]ממונא אית ביה ממשאMAMONO IS BEI MAMASHA- his possession has a solid form

9)[line 13]חציו דכלב הואCHITZAV D'CHELEV HU (CHATZI NEZEK TZEROROS: The Obligation to Pay for only Half of the Damage caused by Pebbles Kicked by one's Animal)

(a)One is fully responsible to pay for damage caused by his animal in a normal manner. This category of damages presumably includes even damage caused by his animal in an indirect manner, wherein the force of the animal's movement sets other objects in motion such that they cause damage. The classic example of such damage is that caused through pebbles (Tzeroros) kicked by an animal as it walks normally.

(b)The Tana Sumchus indeed rules that one must make full restitution (Nezek Shalem) in such cases. The Rabanan, however, maintain that a Halachah l'Moshe mi'Sinai (oral tradition taught at Har Sinai) teaches that the owner of the animal is obligated in no more than half of the damage (Chatzi Nezek) in a case of Tzeroros (Bava Kama 17a-b).

(c)Our Gemara explains that according to Rebbi Yochanan who maintains that Isho Mishum Chitzav, a fire set by one's dog is akin to arrows shot by his dog. The resulting damage is therefore within the category of Tzeroros. This explains why our Mishnah rules that the owner of such an animal is responsible for only Chatzi Nezek.

10)[line 14]האי אש לאו ממונו דבעל כלב הוא!HAI ESH LAV MAMONO D'VA'AL KELEV HU!- the fire in question is not the possession of the owner of the dog [but rather that of the owner of the Chararah]! [The owner of the dog should therefore be responsible to pay Nezek Shalem for the spot upon which the dog placed the coal directly, since his animal directly caused that damage, and he should be exempt for the areas to which the fire subsequently spread.]

11)[line 16]אדייה אדוייADYEI ADUYEI- [the dog] tossed [the Chararah onto the Gadish]

12a)[line 17]על מקום גחלת משלם חצי נזקAL MAKOM GACHELES MESHALEM CHATZI NEZEK- for the spot directly hit by the coal he must pay half-damages [since such an action on the part of the dog falls within the category of a) Tzeroros; b) Keren Tama] (see Insights)

b)[line 17]ועל גדיש כולה פטורV'AL GADISH KULAH PATUR- and he is exempt for the remainder of the Gadish [since the fire is not his possession]

13)[line 18]אנחה אנוחיANCHAH ANUCHEI- [the dog] placed [the Chararah onto the Gadish]

14)[line 19]על חררה ועל מקום גחלת משלם נ"שAL CHARARAH V'AL MAKOM GACHELES MESHALEM NEZEK SHALEM- for the Chararah [since it is Shen in the domain of the Nizak] and the spot upon which the coal was directly placed [since that spot is not Tzeroros] he is responsible for full damages

15)[line 20]גמל טעון פשתןGAMAL TA'UN PISHTAN- if a camel is laden with flax

16)[line 21]רשות הרביםRESHUS HA'RABIM- a public domain

17)[line 22]חנותCHANUS- a store

18)[line 22]חנווניCHENVANI- the storekeeper

19)[line 23]הבירהBIRAH- a large building

20)[line 26]חציו דגמל הואCHITZAV D'GAMAL HU- [the fire] is [akin to] arrows shot by the camel [and is therefore within the category of Tzeroros, requiring its owner to pay for Chatzi Nezek]

21)[line 28]מסכסכתMESACHSECHES- lit. rubbing against; i.e., [a camel that is] igniting directly

22)[line 31]אמאי חייב?AMAI CHAYAV?- why is [the storekeeper] responsible to pay [a) for any of the damage]? (simple understanding of GEMARA and RASHI); b) for all of the damage by himself; the owner of the camel should be responsible for half]? (TOSFOS DH v'Iy)

23)[line 31]בשעמדהBESHE'AMDAH- (the Gemara answers) [the case is one] in which [the camel] stood still

24)[last line]להטיל מימיהL'HATIL MEIMEHA- to urinate

22b----------------------------------------22b

25)[line 1]לא איבעי ליה לאפושי בטעינהLO IBA'I LEI L'APUSHEI B'TE'INAH- he should not have overloaded [the camel to the extent that the flax was able to enter the store, since it was possible that it would subsequently stop to urinate in front of a building and he would be unable to move it]

26)[line 3]מאבראיME'AVRAI- on the outside [of his store]

27)[line 4]כפות לוKAFUS LO- tied up next to it

28)[line 5]חייבCHAYAV- he is responsible [to pay for the Gadish and the goat, but not the slave since he was able to run away and chose not to]

29)[line 6]פטורPATUR (KAM LEI BID'RABAH MINEI)

(a)Should one be liable to receive two punishments for a single action, whether they are both corporal or one corporal and one monetary, then he receives only the more severe punishment and is exempted from the less severe one. This is known as "Kam Lei bid'Rabah Minei" - "he remains with the greater of them." For example, one who stabs another to death will receive the death penalty, but will be exempt from paying for the shirt ruined by the stabbing.

(b)The Gemara (Kesuvos 31a) discusses the definition of a single action for the purposes of Kam Lei bid'Rabah Minei. According to one opinion, an entire series of actions that are necessary for the transgression of a sin constitute a single action with regard to Kam Lei bid'Rabah Minei.

(c)Although Beis Din cannot hold one responsible for damages, etc. when he receives a more severe punishment, he will be held responsible for them by the Heavenly court.

(d)There are a number of situations in which this rule may not apply:

1.Rebbi Meir is of the opinion that only a death penalty will absolve one from other punishments. One who is liable to receive Malkus (lashes) must pay in addition to receiving Malkus (Kesuvos 33b).

2.An unintentional sin does not result in a punishment. Whether the unexecuted punishment is enough to exempt one from payment is the subject of a Machlokes Amora'im. If the sin was one that would have warranted Malkus, Rebbi Yochanan rules that since the Malkus were not delivered, the sinner is not exempt from monetary liability. Reish Lakish maintains that the act was one that is punishable by Malkus and therefore exempts the sinner from payment even when the Malkus are not actually delivered. Rav Dimi understands that this same Machlokes applies in a case in which the undelivered punishment was the death penalty; Ravin maintains that in this case both Rebbi Yochanan and Reish Lakish agree that Kam Lei bid'Rabah Minei is applicable (Kesuvos 34b-35a).

3.In certain cases in which the payment is due to one other than the victim, the sinner may be liable to pay even when his action is also punishable by the death penalty or Malkus.

(e)The Mishnah cited in our Gemara teaches that one who kills a slave with fire is exempt from paying for a Gadish or goat that was consumed by the blaze. According to RASHI, a goat does not have the intelligence necessary to run away from a fire, and he is exempt from paying for the goat only because of Kam Lei bid'Rabah Minei. The RASHBAM (cited by TOSFOS DH v'Hayah) explains that a goat is expected to run away from a fire just as a slave is. According to his explanation, there are two cases described in the Seifa of the Mishnah. One involves a situation in which both slave and goat are tied up, and he is exempt for paying for the goat due to Kam Lei bid'Rabah Minei. The other is one in which both slave and goat are free, and he is exempt for both since they both were expected to flee the fire. (See Tosfos for further elucidation of the Mishah.)

30)[line 7]משום הכי פטורMISHUM HACHI PATUR- it is due to that [which igniting the Gadish is the akin to shooting arrows at the Eved] that he is exempt [from payment, as murder is punishable by death which in turn triggers the exemption of Kam Lei bid'Rabah Minei]

31)[line 8]אילו קטל תוריה עבדא, הכי נמי דלא מיחייבILU KATIL TOREI AVDA, HACHI NAMI D'LO MECHAYEV?- a) had his ox killed a slave, would he also be exempt? [The Torah clearly states that he must pay thirty Sela'im! (see Background to 9:55)] (RASHI); b) had his ox killed a slave, would he be also be exempt [from other monetary damages caused by the attack]? [Kam Lei bid'Rabah Minei is not in effect when the greater punishment is incurred by one's possession!] (TOSFOS DH Katal)

32)[line 10]שהצית בגופו של עבדKESHE'HETZIS B'GUFO SHEL EVED- [a case] in which he lit the body of the slave directly on fire

33)[line 11]קם ליה בדרבה מיניהKAM LEI BID'RABAH MINEI- see above, entry #29

34)[line 12]אי הכי, מאי למימרא?IY HACHI, MAI L'MEIMRA?- if so, what needs to be said? [We do not need to be taught the concept of Kam Lei bid'Rabah Minei!]

35)[line 12]בגדי דחד ועבד דחדB'GEDI D'CHAD V'EVED D'CHAD- [the case is one] in which the goat belongs to one person and the slave to another [and yet he is still exempt from paying for the goat]

36)[line 13]הבעירהHA'BE'EIRAH- a fire [that subsequently damages the property of another]

37a)[line 14]חרשCHERESH- a deaf mute (who is not Halachically considered to bear responsibility for his actions)

b)[line 14]שוטהSHOTEH- lit. a fool; one who is deranged (see Background to Gitin 70:66 for more specific parameters of a Shoteh)

38)[line 14]חייב בדיני שמיםCHAYAV B'DINEI SHAMAYIM- he is held responsible in Heaven [if he does not voluntarily make reparations]

39)[line 17]מסרMASAR- he handed it over

40)[line 19]לא שנוLO SHANU- we did not learn [that one is exempt from responsibility if he handed fire to a Cheresh, Shoteh, or Katan]

41)[line 20]גחלתGACHELES- a coal [that will not transfer fire unless it is fanned into flames]

42)[line 20]ליבהLIBAH- he fanned it [into a flame]

43)[line 20]שלהבתSHALHEVES- a flame

44)[line 21]ברי היזיקאBARI HEIZEIKA- it is clear that it is ready to cause damage

45)[line 22]צבתא דחרש קא גריםTZAVSA D'CHERESH KA GARIM- a) it was the grasp of the Cheresh [who brought the flame to what was incinerated] that caused [the fire to do damage] (a "Tzeves" is a pair of tongs); b) according to the Girsa TZAVSA (with two 'Vav's instead of the 'Veis') - it was the company of the Cheresh [who brought the flame to what was incinerated] that caused [the fire to do damage] (RASHI to 9b)

46)[line 23]גווזאGAVZA- a) kindling (RASHI); b) thorns (RASHI to 59b)

47)[line 23]סילתאSILTA- tinder

48)[line 24]שרגאSHERAGA- an earthenware oil lamp

49)[line 24]קרא ומתניתאKRA U'MASNISA- both a verse and a Beraisa

50a)[line 25]"כִּי תֵצֵא אֵשׁ...", תצא מעצמה"KI SETZEI ESH...", TETZEI ME'ATZMAH- "If a fire shall go forth..." (Shemos 22:5) [which implies that] it went forth on its own

b)[line 26]"... יְשַׁלֵּם הַמַּבְעִר אֶת הַבְּעֵרָה""... YESHALEM HA'MAV'IR ES HA'BE'EIRAH"- "... he who ignited the fire shall pay" (Shemos 22:5). The end of the verse implies that the fire was deliberately set.

51a)[last line]פתח הכתוב בנזקי ממונוPASACH HA'KASUV B'NIZKEI MAMONO- the verse (Shemos 22:5) begins with [a reference to] damage caused by his possession (i.e., the implication that the fire caused damage independent of he who set it, as above entry #49a)

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