BAVA KAMA 44 (8 Tamuz) - The Zechus of today's Dafyomi study is dedicated to the memory of Dr. Moshe Gottlieb z'l, who healed the sick of Jerusalem and Israel with Chesed, on the day of his Yahrzeit. Dedicated by his loving wife, children and grandchildren.

[44a - 31 lines; 44b - 51 lines]

1)[line 3]בארבעה דבריםARBA'AH DEVARIM

(a)A person who wounds his fellow Jew (Chovel b'Chaveiro), is obligated to pay five payments, i.e. four payments in addition to Nezek, which one must always pay for damages. The five payments are:

1.NEZEK (Damages; also known as Pegam) - If one causes damage to the person of a fellow Jew, such as blinding his eye, cutting off his hand or breaking his foot, Beis Din assesses the damages that he caused based on the depreciation such damages would cause to a slave on the slave market.

2.TZA'AR (Pain) - The payment for pain inflicted is evaluated as the amount that the injured person would be ready to pay to have the identical injury inflicted in a painless manner (Bava Kama 85a). Pain payments are due even if no other damage (other than the pain) was inflicted - for example, if one person burned another's fingernail without causing a wound (Mishnah, ibid.). The amount of this payment ultimately depends upon the physical and financial situation of the injured person (RAMBAM Hilchos Chovel u'Mazik 2:9).

3.RIPUY (Medical expenses) - He must pay all medical costs until the injured person heals completely from his wounds.

4.SHEVES (Unemployment) - He must pay unemployment for the duration of the injured person's recovery. Sheves is evaluated as if the injured person is protecting a pumpkin patch from birds, a job that requires only minimal exertion and can be accomplished even by an invalid. (The money that the injured person loses due to his permanent handicap, though, is covered by the Nezek payment.)

5.BOSHES (Shame) - Boshes is evaluated based on the status of the person who caused the embarrassment and the status of person who was embarrassed. According to most opinions, the shame caused by an undignified person is greater than the shame caused by an average or dignified person (YERUSHALMI Kesuvos 3:8, RASHI to Bava Kama 83b, BARTENURA to Kesuvos 3:7, RAMBAM Hilchos Chovel u'Mazik 3:1, TUR Choshen Mishpat 420 and SHULCHAN ARUCH CM 420:24). Others rule that the shame caused by an average person is greater than the shame cause by an undignified or a dignified person (RASHI to Kesuvos 40a. The RAN rules that this is the Halachah in all cases except for Ones and Pituy, which follow the previous opinion). With regard to a person who was embarrassed, shame caused to a dignified person is greater than the shame that an average or undignified person suffers (Bava Kama ibid.).

(b)The owner of an animal that wounds a person is only required to pay for the damages (Nezek), as is learned from the verse, "[v']Ish [Ki Yiten Mum] ba'Amiso, [Ka'asher Asah, Ken Ye'aseh Lo]" - "[And if] a man [causes a blemish] in his neighbor; just as he has done, so shall it be done to him" (Vayikra 24:19). The Gemara (Bava Kama 26a, 33a) learns from this verse that only people are required to pay the extra four payments.

2)[line 20]מתחכךMISCHAKECH- the animal rubbed itself [against a wall]

3)[line 23]לנפליםNEFALIM- (lit. stillborn fetuses) an infant that is not yet thirty days old that does not have the status of a "Ben Kayama"

4)[line 23]בן קיימאBEN KAYAMA- an infant at least thirty days old that has a "Chezkas Chai," the assumption that it will continue living

5)[line 26]במועד ליפול על בני אדם בבורותB'MU'AD LIPOL AL BNEI ADAM B'VOROS- when it became as Shor ha'Mu'ad with regard to falling on [and killing] people who were in cisterns. The bull is not stoned while it is a Tam since we are dealing with cases where it noticed foliage growing over the mouth of the cistern and it attempted to eat the foliage when it fell in.

6)[line 29]דחזא ירוקא ונפלD'CHAZA YERUKA, V'NAFAL- it saw foliage and fell [in]

44b----------------------------------------44b

7)[line 1]צרורותTZEROROS

(a)If one's animal caused damage to another person's property in an indirect manner - that is, with the force of its body but without its body coming into direct contact with the damaged item, such as by walking and kicking up pebbles that - through the ballistic action caused by the force of the animal's body - caused damage, the owner is obligated to pay restitution for the damage.

(b)The Tana'im argue what the extent of the owner's liability is in such a case (Bava Kama 17b). Sumchus maintains that he is obligated to pay for the full damage (Nezek Shalem). The Rabanan maintain that there is a Halachah l'Moshe mi'Sinai that the owner is obligated to pay for only half of the damage (Chatzi Nezek).

8)[line 2]דקאזיל מיניה מיניהDEKA'AZIL MINEI MINEI- it (the wall) was being pushed by (and was in direct contact with) the bull until it was thrown down; the damage was not caused through "Tzeroros"

9)[line 28]"... וארב לו וקם עליו""... V'ARAV LO V'KAM ALAV..."- "[But if any man hates his neighbor,] and lies in wait for him, and rises up against him, [and strikes him mortally so that he dies, and flees to one of these cities;]" (Devarim 19:11)

10)[line 30]פרט לזורק אבן לגוPERAT L'ZOREK EVEN L'GEV- to exclude the case of throwing a stone into [a group of people]

11)[line 31]דרובא כנענים נינהוD'RUBA KENA'ANIN NINHU (KOL D'PARISH, ME'RUBA PARISH / KOL KAVU'A, K'MECHETZAH AL MECHETZAH DAMI)

(a)KOL D'PARISH, ME'RUBA PARISH - When there is a doubt as to the source of a certain item, i.e. from where it comes or to which group it belongs, the Torah informs us that we may resolve the doubt according to certain set rules. One of these rules is "Haloch Achar ha'Rov" (assume that an item comes from the largest group). For instance, if a piece of meat is found lying on the street (or in the hands of a Nochri in the street), and most of the meat in the town is Kosher, it can be safely assumed that the meat is kosher. The source for Haloch Achar ha'Rov is the verse, "Acharei Rabim l'Hatos" (Shemos 23:2, Chulin 11a).

(b)KOL KAVU'A, K'MECHETZAH AL MECHETZAH DAMI - If, however, the nature of the item is in doubt while it is still "in its place," or Kavu'a, (i.e. it was not separated from the other items of its kind), we do not follow the Rov. Instead, we remain in doubt as to the status of the item. For instance, if a person buys meat and then forgets whether he bought it at a Kosher or non-Kosher store, we cannot assume that the meat is Kosher just because most of the stores in the town are Kosher, since we are questioning its status while it is still in its proper place (the store) before it was separated from the other pieces of meat in the store.

12)[line 31]ספק נפשות להקלSAFEK NEFASHOS L'HAKEL

(a)Where there is a Safek (a doubt) as to whether the Torah permits or prohibits a certain object or act, we are obligated to take the more stringent opinion.

(b)Where there is a doubt as to whether a person is to receive the death sentence or not, the Torah teaches us to take the more lenient approach and not to sentence him to death. This is learned from the verse "v'Hitzilu ha'Edah" - "and the congregation shall save" (Bamidbar 35:25).

13)[line 33]וכל קבוע כמחצה על מחצה דמיV'KOL KAVU'A, K'MECHETZAH AL MECHETZAH DAMI

See above, entry #11.

14)[line 35]האפוטרופוסAPOTROPOS- (O.F. seneschal) steward, manager of the estate (RASHI to Sukah 27a)

15)[line 35]שור המדברSHOR HA'MIDBAR- (lit. desert bull) an ownerless bull

16)[line 35]שור ההקדשSHOR HA'HEKDESH- a bull that belongs to Hekdesh (sanctified to be the property of the Beis ha'Mikdash]

17)[line 37]שור שור שבעהSHOR SHOR SHIV'AH- the word "Shor" appears seven times in the verses (Shemos 21:28-32) that deal with a bull killing people (one time is necessary to introduce the topic and the other six add the six cases of the Mishnah and Beraisa - TOSFOS DH Shor Shor)

18)[line 47]"... והועד בבעליו [לא ישמרנו] והמית [איש או אשה]""... V'HU'AD BI'VALAV [V'LO YISHMERENU] V'HEIMIS [ISH O ISHAH...]"- "[But if the ox was prone to gore with its horn in the past,] and its owner had been warned, [but he had not watched it properly,] and it killed [a man or a woman, the ox shall be stoned, and its owner also shall pay Kofer (lit. be put to death; see Background to Bava Kama 40:1).]" (Shemos 21:29)

19a)[line 47]והעמדה בדיןHA'AMADAH V'DIN- the time that they stand in court

b)[line 47]וגמר דיןGEMAR DIN- the announcement of the verdict

20)[line 48]שור שהוא יוצא ליסקלSHOR SHE'HU YOTZEI LISAKEL (SHOR HA'NISKAL)

(a)The term Shor ha'Niskal refers to any animal or bird that is stoned to death by Beis Din. Such an animal is Asur b'Hana'ah after the death sentence is issued (Bava Kama 41a). One of the instances of Shor ha'Niskal is an animal, whether a Tam or a Mu'ad (see Background to Bava Kama 33:10:a) that killed a person, as described in Shemos 21:28-31 and in Sanhedrin 2a.

(b)In the event that an animal killed a person, only if two witnesses saw the act is the animal stoned by Beis Din and Asur b'Hana'ah. If only one witness saw it, or if there were no witnesses but the owner told Beis Din of the incident, the animal is not stoned and is Mutar b'Hana'ah but is unfit to be brought as a Korban (Bava Kama 40b).

(c)The Gemara teaches that the animal is only put to death if it killed a person in a manner that would have warranted that death sentence had the act been committed by a person. For this reason, if the animal killed unintentionally, or it killed a person that was a Tereifah (see Background to Bava Kama 41:6), the animal is not put to death since a person who kills in such a manner is not given the death sentence.

21)[line 50]מסרו לשומר חנם ולשואל לנושא שכר ולשוכרMASRO L'SHOMER CHINAM UL'SHO'EL L'NOSEI SACHAR, UL'SOCHER (4 SHOMRIM - four types of watchmen mentioned in the Torah)

(a)SHOMER CHINAM - the Shomer Chinam is one who watches his friend's item for no reimbursement. He is liable for damages only in cases of Peshi'ah (negligence), but not in cases of theft or loss, and certainly not in a case of Ones (an unavoidable accident).

(b)SHO'EL - the Sho'el, the borrower, is one who borrows an item from his friend and is obligated to take care of it. He is liable for damages in cases of Peshi'ah (negligence), theft or loss, and Ones (an unavoidable accident). (He is exempt from damages only in a case of "Meisah Machmas Melachah," when the item was damaged in the normal manner of usage.)

(c)NOSEI SACHAR - Nosei Sachar, or Shomer Sachar, is one who is paid to watch an article. He is liable for damages in cases of Peshi'ah (negligence), theft or loss, but is not liable in a case of Ones (an unavoidable accident).

(d)SOCHER - the Socher, or renter, is one who pays money to rent an item from his friend. He is liable for damages in cases of Peshi'ah (negligence), theft or loss, but is not liable in a case of Ones (an unavoidable accident) (RASHI to Bava Kama 4b). (There is actually a Machlokes in Bava Metzia whether the Socher has the status of the Nosei Sachar, or the status of a Shomer Chinam.)

22)[line 50]נכנסו תחת הבעליםNICHNESU TACHAS HA'BE'ALIM- the watchmen take the place of the original owner with regard to his responsibilities and liabilities

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