BAVA KAMA 51 - Dedicated in memory of Nachum ben Shlomo Dovid Mosenkis Z"L by his son and daughter-in-law, by Mr. and Mrs. Sid Mosenkis (of Queens, N.Y.), in honor of his 69th Yahrzeit on 23 Teves 5769.

[51a - 48 lines; 51b - 53 lines]


(a)Arba Misos Beis Din, the four death penalties administered by Beis Din, in their order of stringency are:

1.Sekilah (stoning)

2.Sereifah (burning with molten lead, which is poured down the throat)

3.Hereg (killing with a sword) (Sefer ha'Chinuch #50)

4.Chenek (strangulation) (Sefer ha'Chinuch #47)

(b)According to the Rebbi Shimon (Mishnah Sanhedrin 9:3, Gemara Sanhedrin 49b), the order of their stringency is Sereifah, Sekilah, Chenek and Hereg.

(c)A person who is sentenced to stoning is taken to the Beis ha'Sekilah, which is outside of any settlement (Sanhedrin 42b). It is two times the height of an average person, and the convict is brought up to the top of it with his hands tied, after causing him to become inebriated. The witnesses to his crime also go up with him, and one of them pushes him off. If he does not die from the fall, the witnesses throw onto him a stone that needs two people to lift. If he still does not die, all other people who are assembled there throw stones onto him until he dies.

(d)The Torah states, "v'Chi Yiheyeh v'Ish Chet Mishpat Maves... Lo Salin Nivlaso Al ha'Etz, Ki Kavor Tikberenu ba'Yom ha'Hu..." - "And if a man has committed a sin deserving death, and he is put to death, you shall hang him on a gallows. However, his body shall not remain all night upon the gallows, but rather you shall bury him that day..." (Devarim 21:22-23). Rebbi Eliezer (Sanhedrin 45b) rules that this verse refers to all convicts who are stoned. After being executed, their dead bodies are hanged. The Rabanan argue, claiming that a blasphemer or an idolater is the only capital offender who is hanged after stoning. The hanging takes place just before sunset, when the dead body is hanged and immediately taken down to be buried.

2)[line 5]וקומה שלו הרי כאן שלשV'KOMAH SHELO, HAREI KAN SHALOSH- and his own height, resulting in a total of height of three times the height of a person

3)[line 10]דמינוולD'MINVAL- he would become disfigured or dismembered

4)[line 11]"... כי יפול הנופל ממנו""... KI YIPOL HA'NOFEL MIMENU."- "[When you build a new house, you must make a guardrail for your roof; so that you shall not shed blood in your house] because the falling person will fall from it." (Devarim 22:8)

5a)[line 12]היתה רשות הרבים גבוה ממנו עשרה טפחיםHAYESAH RESHUS HA'RABIM GAVO'AH MIMENU ASARAH TEFACHIM- if Reshus ha'Rabim was ten Tefachim higher than the person's roof

b)[line 13]ונפל מתוכה לתוכו פטורV'NAFAL MI'TOCHAH L'SOCHO; PATUR- and he fell from it (Reshus ha'Rabim) onto it (the roof), [the owner of the house is] exempt [from any damages caused by the fall]

6)[line 18]מאבראיME'AVRAI- on the outside

7)[line 18]דל מיניהDAL MINEI- subtract from it

8a)[line 18]תקרהTIKRAH- the [thickness of the] ceiling

b)[line 18]ומעזיבהU'MA'AZIVAH- the [thickness of the] Ma'azivah, a mixture of mud and sand or stone chips, etc., that covers a ceiling

9)[line 19]מגואיMI'GAVAI- from the inside

10)[line 19]לא הוי עשרהLO HAVEI ASARAH- there is not [a height of] ten Tefachim [on the inside of the house, thus refuting the contention that the term "Bayis," "house," can only be used if there is a minimum height of ten Tefachim]

11)[line 19]דחקD'CHAK- excavated

12)[line 21]מכריסא דתוראMI'KEREISA D'SORA- the underbelly of the bull

13)[line 24]דאיגנדר לבורD'IGANDER LA'BOR- [from a state of lying on the ground] it rolled into the pit

14)[line 31]אין שליח לדבר עבירהEIN SHALI'ACH LI'DEVAR AVEIRAH - a Shali'ach cannot be appointed to perform an Aveirah

See Insights to Kidushin 42:3.

15)[line 34]שעקרו שניהן חוליא בבת אחתSHE'AKRU SHENEIHEM CHULYA B'VAS ACHAS- [e.g. one of them dug a pit nine Tefachim deep and] the two of them broke loose and removed at the same time one more Tefach of dirt

16)[line 41]ולא שור בורV'LO SHOR BOR- if an animal created a pit, the owner of the animal is not liable

17)[line 44]שור פסולי המוקדשיןSHOR PESULEI HA'MUKDASHIN

(a)Pesulei ha'Mukdashin are Korbanos that became unfit to be offered upon the Mizbe'ach because of a Mum (blemish). After they are redeemed, it is still forbidden to work with them ("Avodah") or to shear them ("Gizah"). The milk they produce is also forbidden. They are only permitted to be eaten after being slaughtered (Bechoros 15b).

(b)Because of these restrictions, Pesulei ha'Mukdashin are excluded from the specifications of the verse that states "Ba'al ha'Bor Yeshalem veha'Mes Yiheyeh Lo" - "The owner of the pit shall make restitution and the carcass will be his." As a result, when an animal of Pesulei ha'Mukdashin falls into a pit, the owner of the pit is exempt from liability.

(c)The Mishnah in Bechoros (5:1) states that Pesulei ha'Mikdashin may be sold in the marketplace and weighed with a Roman Libra, a pound. These acts are normally considered unfitting for Kodshim, and are prohibited to be done to a Bechor.

18)[last line]וסייד וכיידV'SIYED V'KIYED- he plastered it and drew designs in the plaster (these actions cause this previously wide Bor to become narrow and dusty, introducing the injurious Hevel into it)


19a)[line 18]טם טפחTAM TEFACH- he filled in one Tefach [of the Bor]

b)[line 18]וסילק אבניוV'SILEK AVANAV- and he took away the stones [that had previously served as the top edge of the Bor and had completed the height of ten Tefachim]

20)[line 25]דלא נפישי מיאD'LO NEFISHEI MAYA- there is not a lot of water

21)[line 36]גיסאGISA- side

22)[line 43]דליוDALYO- its cover

23)[line 43]המדלהHA'MADLEH- one who draws water with a bucket

24)[line 46]יש ברירהYESH BEREIRAH

(a)In numerous places in Shas we find arguments among the Tana'im/Amora'im as to whether "Yesh Bereirah" (i.e. Bereirah works) or "Ein Bereirah" (i.e. Bereirah does not work). Bereirah means making one's action contingent retroactively on future events. Examples of this are: selling an object on the condition that it rains tomorrow; buying or selling today an object that will be selected tomorrow. "Ein Bereirah" means that such a stipulation does not work. An action cannot be contingent on a future event. The Ran (Nedarim 45b) explains the logic of this rule by saying, "It is not proper for something to take effect, when there remains a doubt on what it will take effect" (See Insights to Chulin 15:2.). "Yesh Bereirah" means that such a stipulation does work.

(b)When the action is contingent on a past event, there is no question that the action works - even if the people involved in the action are not aware as to whether the past event did or did not take place. Example: If a person makes two Eruvei Techumin before sundown on Erev Shabbos, in two different directions, and stipulates "if my Rebbi is presently staying in a village towards the East, I would like the Eastern Eruv to work, if not, I would like the Western Eruv to work." The man making the Eruv may not know where his Rebbi is, but when he finds out, the Eruv will have taken effect on the side that he stipulated.

(c)We find dozens of instances in the Gemara where a person may perform an action "on the condition that..." (b'Tenai). For example, a man may buy or sell an object or divorce his wife on the condition that the other party pays or does whatever the first party specifies. If the condition is not kept in the future, the sale or divorce is annulled. This situation is not called Bereirah - see Insights to Yoma 56:1.

(d)Halachically, most Poskim conclude (based on Beitzah 38a) that regarding Biblical questions (mid'Oraisa), we assume that Bereirah does not work (l'Chumrah), but in regards to Rabbinical questions (mid'Rabanan), we rely on Bereirah.

25)[line 47]ואזדו לטעמייהוAZDU L'TA'AMAIHU- and they (Rebbi Eliezer ben Yakov and Rabanan) each follow their own reasoning elsewhere


(a)When a person buys an object, he must make a Ma'aseh Kinyan, a formal Halachically-binding act denoting his acquisition of the object, in order for the sale to be irrevocably binding. Depending on what object one is acquiring, different Kinyanim are used, as follows.

(b)The forms of Kinyan that may be used for the acquisition of Metaltelin (mobile items) are:

1.Hagbahah, i.e. lifting the item;

2.Meshichah, i.e. pulling the item or causing it to move;

3.Mesirah, i.e. handing over the reigns of an animal or the tie lines of a boat, or a bill of debt (Shtar Chov);

4.Chatzer, i.e. bringing the item into one's private domain;

5.Chalipin (exchange or barter), i.e. taking another object to demonstrate one's consent for the Kinyan (or for an agreement).

6.Agav, i.e. acquiring the movable object automatically upon the acquisition of land.

(c)The forms of Kinyan that may be used for the acquisition of land are:

1.Kesef, i.e. paying at least a Perutah's worth of money for the land;

2.Shtar, i.e. receiving a legal document containing the details of the sale;

3.Chazakah, i.e. performing an act that is normally performed only by an owner;

4.Chalipin (as mentioned above, b:5)

(d)Examples of Chazakah for real estate are Na'al (locking), Gadar (fencing in), and Paratz (making a breach in a fence to create an entrance) or any act that is done to enhance the land, such as digging to improve a field and the like (MISHNAH Bava Basra 42a).

27)[line 52]ובעי למימר ליה לך חזק וקניU'BA'I L'MEIMAR LEI 'LECH CHAZEK U'KENI'- he needs to say to him, "Go, do an act of Chazakah, and acquire it."