BAVA KAMA 33-35 - 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.

[35a - 32 lines; 35b - 47 lines]

1)[line 6]וקא בעי למקלייהV'KA BA'I L'MIKALYEI- and he wants to burn it (the Gadish)

2)[line 6]ואיגנדר בקוטמאV'IGANDER B'KUTMA- and roll in the ashes

3)[line 9]דהוה כיבין ליה חינכיהD'HAVAH KAIVIN LEI CHINCHEI- his teeth (or gums) were hurting. (Cattle and sheep have no top teeth and they use their gums as teeth.)

4)[line 9]עיילAYIL- he went in [to the brewery]

5)[line 9]ופתקיה לנזייתאU'PASKEI L'NAZYASEI- and pushed off the cover of the beer barrel

6)[line 10]ושתי שיכראV'SHASI SHICHRA- and he drank the date beer

7)[line 10]ואיתסיV'ITSI- and was healed

8)[line 17]מכה אדם ומכה בהמהMAKEH ADAM U'MAKEH VEHEMAH- this refers to the verse, "u'Makeh Vehemah Yeshalemenah; u'Makeh Adam Yumas" - "And he who kills a beast, he shall pay for it; and he who kills a man, he shall be put to death." (Vayikra 24:21)

9a)[line 20]דרך ירידהDERECH YERIDAH- where he killed the beast with a downward motion

b)[line 20]לדרך עלייהDERECH ALIYAH- where he killed the beast with an upward motion (RASHI to Sanhedrin 79b DH Makeh Adam explains that there are no Halachic ramifications to killing a beast with a downward or upward motion. This is in contrast to Makeh Adam, where there are Halachic ramifications - see Makos 7b)

10)[line 30]לא כי אלא בסלע לקהLO CHI, ELA B'SELA LAKAH- not as you say, but rather your bull was injured when it struck a wall

11)[line 30]המוציא מחבירו עליו הראיהHA'MOTZI ME'CHAVEIRO ALAV HA'RE'AYAH - the burden of proof rests upon the claimant

(a)The general rule in monetary claims is that the burden of proof rests with the one who wishes to extract payment or other items of value from his opponent. Hence, when there is a doubt, all money remains with the one who has possession.

(b)In our Mishnah, the Nizak must prove that his animal was damaged in the method that he claims in order to receive the payment for such damage. If he fails to bring such proof, in most cases Beis Din rules according to the details of the counterclaim of the Mazik.


12)[line 17]ממון המוטל בספק חולקיןMAMON HA'MUTAL B'SAFEK CHOLKIN

Sumchus maintains that property of doubtful ownership, i.e. with several claimants, is divided among the claimants. There is an argument among the Amora'im as to whether he rules as such where the litigants are equally certain of their respective claims (Bari u'Vari - see next entry) or only in a case where not all of the litigants are certain of their respective claims (Bari v'Shema - see entry #16).

13)[line 19]ברי ובריBARI U'VARI- (lit. certain and certain) if one litigant issues a plea of "I am certain (that the case occurred as follows)" and his opponent counters with a plea of "I am certain (that the case occurred in a different fashion)"

14)[line 28]הא לא מייתי ראיה שקיל כדאמר מזיקHA LO MAISI RE'AYAH, SHAKIL KED'AMAR MAZIK- therefore, if the Nizak does not bring adequate proof, we rule according to the claim of the Mazik

15)[line 30]טענו חטים והודה לו בשעוריםTA'ANO CHITIM V'HODAH LO B'SE'ORIM (MODEH B'MIKTZAS HA'TA'ANAH)

(a)If a person admits that he owes part of a claim, the Torah suspects that the person wants to temporarily postpone part of the payment but does not have the audacity to completely deny the claim. He is therefore required to take an oath, mid'Oraisa, on the part he denies (Shemos 22:8), or otherwise he must pay the entire amount being claimed.

(b)In the event that a creditor claims a certain amount of a commodity such as one Kor of wheat and the debtor responds that he owes one Kor of barley, the Mishnah (Shavu'os 38b) records a Machlokes Tana'im as to whether he is obligated to take an oath or not. Raban Gamliel, who requires an oath, rules that the partial admission does not have to be of the same type of commodity that the creditor claimed. If the litigant swears, he must pay the creditor the barley.

(c)The Rabanan exempt the litigant from an oath since they rule that only a partial admission of the same type of commodity requires an oath. In our Gemara, Rabah bar Nasan explains that the Rabanan even exempt the litigant from returning the barley, to which he admitted. The Rishonim disagree with regard to the reason for his ruling. The RAMAH (see ROSH to Bava Kama 3:15-16) states that the litigant can explain that he was not serious ("Meshateh Hayisi Becha") when he admitted to the barley, since the claim of the creditor was likewise preposterous, since he did not owe him any wheat. RASHI and TOSFOS (here) explain that the claim of the creditor of wheat and not barley is a sign that he forgoes any claim to barley that he has against this person. The RAMBAM (Hilchos To'en v'Nit'an 3:10) states that the claim of wheat is tantamount to saying, "I hold against you no claims of barley," after which Beis Din cannot require the litigant to pay anything.

16)[line 31]ברי ושמאBARI V'SHEMA- (lit. certain and perhaps) if one litigant issues a plea of "I am certain (that the case occurred as follows)" and his opponent counters with a plea of "Perhaps (the case occurred in a different fashion)"

17)[line 43]ראוי ליטול ואין לוRA'UY LITOL V'EIN LO- he (the Nizak) is deserving of collecting according to his claim [had he brought a proof], but he has no [monetary recompense at all, since this is a case of "Ta'ano Chitin v'Hodah Lo b'Se'orin" - see above, entry #15:c]

18)[line 44]הרי זה משתלם על הקטן מן הגדול ולגדול מן הקטןHAREI ZEH MISHTALEM AL HA'KATAN MIN HA'GADOL, VELA'GADOL MIN HA'KATAN- that is, there is a Beraisa that states explicitly that the Nizak collects according to the words of the Mazik (and this refutes the contention that "Ra'uy Litol v'Ein Lo")

19)[line 44]דתפסD'TAFAS- he (the Nizak) seized [the money or possessions of the Mazik to cover his losses, (at least) according to the words of the Mazik]