BAVA KAMA 73 (8 Av) - Dedicated l'Iluy Nishmas Mrs. Lily (Leah bas Pinchas) Kornfeld, who passed away on 8 Av 5765, by her daughter and son-in-law, Diane and Andy Koenigsberg and family. May Lily and her husband's love for Torah and for Eretz Yisrael continue in all of their descendants.

[73 - 47 lines; 73b - 35 lines]

1)[line 2]דפסלינהו בגזלנותאD'PASLINHU B'GAZLENUSA- other witnesses invalidated these witnesses by testifying that they stole (and a Gazlan is Pasul l'Edus)

2)[line 8]ביע''ל קג''םB'YE'A''L KEGA''M- a mnemonic device to remember the six cases in which Abaye and Rava argue where the Halachah follows the opinion of Abaye. These cases are:

1.YE'USH SHE'LO MI'DA'AS - The owner of a lost or stolen object does not as yet know that his object is lost or stolen. Had he known, he would have given up hope of ever getting it back, and would have verbally acknowledged that the loss is irretrievable ("Ye'ush"). Abaye rules that Ye'ush she'Lo mi'Da'as is not considered Ye'ush (Bava Metzia 21b).

2.ED ZOMEM LIMAFRE'A HU NIFSAL - Abaye rules that the testimony of a witness who, with regard to a later testimony, is found to be an Ed Zomem is disqualified retroactively (Sanhedrin 27a).

3.LECHI HA'OMED ME'ELAV - Abaye rules that a board which was not put in place for the purpose of being used as a Lechi (to permit carrying objects from a Chatzer to a Mavoy and in the Mavoy itself) is considered a Lechi (Eruvin 15a).

4.KIDUSHIN SHE'EINAM MESURIN L'BI'AH - Abaye rules that Kidushin (betrothal) to a woman with whom marital relations will be prohibited due to a Safek Isur Kares (see Insights to Kidushin 51:1 and Background to Kidushin 51:10) are considered binding to the extent that the woman needs to receive a Get from the Mekadesh and becomes prohibited to his immediate relatives.

5.GILUY DA'AS B'GITA - A husband has sent a Get to his wife with a messenger, and the messenger returns having not been able to deliver the Get. The husband then hints that he is pleased with the fact that he has not as yet divorced his wife, but does not state explicitly that he does not want the messenger to deliver the Get or that he wishes to revoke the Get. Abaye rules that his hints have no bearing on the validity of the Get, and the messenger is still able to deliver the Get (Gitin 34a).

6.MUMAR OCHEL NEVEILOS L'HACH'IS - Abaye rules that a person who eats non-Kosher food (or transgresses any other sin) in order to anger his Creator is disqualified from being a witness, even though he has not demonstrated a willingness to transgress the Torah for monetary benefit (Sanhedrin 27a).

3)[line 29]בשתי כתותB'SHTEI KITOS- two groups of witnesses (i.e. four witnesses)

4)[line 38]תוך כדי דיבור כדיבור דמיTOCH KEDEI DIBUR K'DIBUR DAMI

"Toch Kedei Dibur" is the length of time that it takes for a student to say a greeting to his teacher (e.g. "Shalom Alecha Rebbi"). "k'Dibur Dami" means that within this small amount of time, we view an act or speech as not yet completed and still continuing. Thus, even though the person has, with regard to his actions, already stopped performing the act, within this amount of time he may act or say something that will abrogate his previous actions or words, or (in the case of our Gemara) may add something to his previous words which will be considered to have been said at the same time as his previous words.


5)[line 3]תמורת עולה תמורת שלמיםTEMURAS OLAH, TEMURAS SHELAMIM (TEMURAH)

(a)The Torah states, "Do not try to transfer or exchange it (an animal that has been designated as a Korban) [for another animal], neither a good animal for a bad one nor a bad one for a good one. If you do exchange an animal [of Kodesh] for another animal [that is not], both the original animal and the one given in exchange for it, will be Kodesh" (Vayikra 27:10). The Chinuch explains that the reason for the prohibition of Temurah is to teach us the proper reverence that we must have for objects of Kedushah (SEFER HA'CHINUCH #351, #352).

(b)The second animal, or the Temurah, is usually a valid Korban. If it has no Mum (blemish that invalidates it), it must also be offered on the Mizbe'ach (unless the original Korban was a Chatas or an Asham).

(c)A person who intentionally makes a Temurah receives Malkos (lashes). Sometimes, even if a person makes a Temurah b'Shogeg (unintentionally), he receives Malkos (see Chart to Temurah 17a).

(d)Our Gemara cites the Machlokes between Rebbi Meir and Rebbi Yosi regarding a case in which a person declared an animal to be "Temuras Olah, Temuras Shelamim." This statement seems inherently contradictory, since one animal cannot be both an Olah and a Shelamim. Rebbi Meir maintains that we follow the first part of a person's statement ("Tefos Lashon Rishon"), and the animal is a Temuras Olah. Rebbi Yosi maintains that the person meant to make the animal both types of Korban, and therefore he must leave the animal to graze until it develops a blemish, and then he must sell it and buy with half of the money an animal to be brought as an Olah, and with the other half he must buy an animal to be brought as a Shelamim.

6)[line 8]ונמלךV'NIMLACH- he changed his mind

7)[line 9]והוינן בהV'HAVINAN BAH- and we ask about it

8)[line 15]דנפישD'NAFISH- for it is a lot

9a)[line 16]שהוכחשוSHE'HUKCHESHU- were contradicted [by a second set of witnesses]

b)[line 17]הוזמוHUZMU- were proven to be Edim Zomemim [by a third set of witnesses]

10)[line 17]דהכחשה תחילת הזמה היאD'HAKCHASHAH TECHILAS HAZAMAH HI - being contradicted is the first stage in being shown to be Edim Zomemim (and thus the Edim are punished like any normal Edim Zomemim are punished) (EIDIM MUKCHASHIM / EDIM ZOMEMIM)

(a)If two witnesses testify to a crime or an event and a later set of witnesses contradict their testimony by saying that the crime or event did not take place exactly as the first set of witnesses testified, all of the witnesses are termed Edim Mukchashim (contradictory witnesses), and Beis Din cannot use either testimony.

(b)If, however, two witnesses testify to a crime or an event and a later set of witnesses disqualify their testimony by saying that the first set of witnesses were with them in a different place at the time that the first set of witnesses claim that the act took place, the first witnesses are termed Edim Zomemin (conspiring witnesses). The Torah commands that the second set of witnesses be believed, rather than the first. In general, Edim Zomemim are punished with the punishment they tried to cause. (Devarim 19:16-21. See MISHNAH Makos 5a)

11)[line 19]שסימא את עין עבדו והפיל את שינוSHE'SIMEI ES EIN AVDO V'HIPIL ES SHINO (SHEN V'AYIN)

(a)If the owner of an Eved Kena'ani (a Nochri slave) hits his slave and wounds him by taking out the slave's eye or permanent tooth, the slave becomes entitled to his freedom (Shemos 21:26-27). The owner must intentionally wound him, but need not intend to wound him specifically in the eye or tooth (Kidushin 24b).

(b)The same applies if the master dismembers one of the slave's 24 Roshei Evarim (limb-tips) that do not regenerate if they are dismembered. The 24 Roshei Evarim are the ten fingers, ten toes, nose, ears, and the male Ever (RASHI to Gitin 42b). The Gemara (Kidushin 24a-25a) adds more limbs for which this Halachah applies.

(c)The requirement to free the slave under such circumstances is considered a Kenas (a penalty or fine) which is imposed upon the master for unjustly wounding his slave (Bava Kama 74b; see Rashi to Gitin, top of 21b). Therefore, if the owner admits that he is guilty of taking out his slave's tooth or eye, he need not free the slave (Bava Kama ibid.).

12)[line 20]שהרי הרב אומר כןSHE'HAREI HA'RAV OMER KEN- for, behold, the master himself says so (i.e. he is pleased with their testimony, as the Gemara later explains)

13)[line 27]בי תריBEI TREI- a set of two [witnesses]

14)[line 28]דבעי מיתיב ליה הרב דמי עינוD'BA'I MEISIV LEI HA'RAV DEMEI EINO- the master must pay to his slave the value of his eye. The witnesses testified that the master first knocked out his slave's tooth, and then that he blinded his slave's eye. Through the witnesses' testimony that the master first knocked out the tooth of his slave, the master must free the slave. The witnesses' testimony that, after knocking out his slave's tooth, the master blinded the eye of his slave, obligates the master to pay the value of the eye to his former slave, since the slave was no longer his slave and the moment that he blinded his eye.

15)[last line]דאפכינהו ואזמינהוD'APCHINHU V'AZMINHU- they (the second set of witnesses) reversed the order of events in the testimony of the first set, and they made the first set into Edim Zomemim