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.

1) MAKING A "SHOR" INTO A "SHOR HA'MU'AD"
QUESTIONS: The Gemara discusses the mechanism of how three sets of testimony make a Shor into a Shor ha'Mu'ad. Do they serve to make the Shor Mu'ad ("Yi'udei Tora") or do they serve to make the owner Mu'ad ("Yi'udei Gavra")? The practical difference exists in a case in which all three sets of witnesses come on the same day and testify that the Shor gored on three different days in the past. Such testimony can make the Shor a Mu'ad ("Yi'udei Tora") since it proves that the Shor has a tendency to gore. It cannot make the owner Mu'ad ("Yi'udei Gavra") since the owner has not yet ignored Beis Din's warning to guard his Shor three times.
The Gemara proves that the purpose of the testimony is to make the Shor a Mu'ad ("Yi'udei Tora"). It proves this from a Beraisa which teaches that if three sets of witnesses testify that an ox gored on three different occasions, and all of them are found to be Edim Zomemim, all six witnesses must jointly pay the second half of the value of the payment which they wanted to obligate the owner of the Shor to pay (the payment of a Shor ha'Mu'ad), since they all intended to obligate him to pay that payment.
How does the Beraisa know that the witnesses intended to cause the owner to have to pay damages caused by a Shor ha'Mu'ad? Perhaps each set intended to cause him to pay for damages caused by a Shor Tam (i.e. Chatzi Nezek). It must be that all three pairs of witnesses came together to testify that the Shor was a Mu'ad as a result of three gorings that occurred on different days in the past, as Rashi explains.
If such testimony is accepted, it must be that the witnesses are accomplishing "Yi'udei Tora," since the Shor becomes a Mu'ad even though the owner was not warned on three separate occasions.
The Gemara asks that even if the testimony accomplishes "Yi'udei Tora," why should the third set of witnesses have to share in the payment of the Mu'ad-half of the payment? Why can they not claim that they were not aware that the Shor had gored two times in the past, and they came only to make the owner liable (Chatzi Nezek) for the goring which they saw on this occasion?
Ravina answers that the third set of witnesses testify that they saw one of the owner's oxen gore, but they are not sure which one it was. If the Shor is a Tam, the owner will not have to pay at all since one pays only "mi'Gufo" for damages of a Tam (and one of the oxen of the flock died or ran away after the time of the goring and before the testimony, and thus the owner can claim that it was the Shor that gored that died or ran away, as Tosfos writes). Therefore, it must be that the witnesses intended to make the Shor into a Mu'ad and make the owner pay Nezek Shalem ("Min ha'Aliyah" and not "mi'Gufo").
Two basic problems in this Sugya must be addressed.
RASHI (DH Kulan) clearly writes that after the three sets of witnesses testify, the owner must pay Nezek Shalem for the third goring. Why should the Shor become a Mu'ad on the third goring? Earlier (23b), Rashi explains that Rava and Abaye argue about whether a Shor pays Nezek Shalem for the third goring (Rava) or only for the fourth goring (Abaye). How does Abaye explain the Beraisa here which says that the Shor becomes a Mu'ad on the third goring?
Moreover, if the third set of witnesses are not sure which ox gored, how can they make the Shor into a Mu'ad to pay Nezek Shalem? They cannot prove that the ox that gored this time already gored two times in the past!
ANSWERS: The Rishonim suggest two completely different ways to explain the Sugya. Those two ways are based on the two ways they explain the argument between Rava and Abaye earlier (23b). Rashi there explains, as mentioned above, that Rava makes the animal a Mu'ad on the third goring, and Abaye makes it a Mu'ad only on the fourth. Consequently, when the Gemara (24a) says that "Yi'udei Tora" can be accomplished when three sets of witnesses come in one day, it must mean that the set which obligates the owner to pay for the animal's damage as a Shor ha'Mu'ad can also come on the same day as the first two sets of witnesses. It is not necessary to prove that the Shor has the nature of a Mu'ad before the goring occurs for which the owner must pay Nezek Shalem. If that were not the case, then according to Rava (whose opinion is the Halachah) the Gemara should say that two sets of witnesses come on one day, and if the ox gores afterwards the owner pays for it as a Mu'ad.
TOSFOS (23b, DH v'Lo) and the Rishonim point out that this explanation is not consistent with logic or with the verse. Logically, the reason why the Shor must be made into a Mu'ad is to warn the owner to guard his Shor properly. The reason the owner pays Nezek Shalem if he does not guard it is that he did not heed the warning of Beis Din. If three sets of witnesses testify in court on the same day that there were three gorings, the owner has received no warning to guard his ox. Why, then, should he pay Nezek Shalem (even according to the view of "Yi'udei Tora")?
Moreover, the verse says, "v'Hu'ad b'Va'alav v'Lo Yishmerenu," which implies that the owner was warned to watch the ox but did not watch it.
Perhaps Rashi understands that according to the view that requires "Yi'udei Tora," it is not necessary that the owner receive an official warning from Beis Din to watch his ox. Rather, the very fact that his ox gored is enough to obligate him to watch his ox, since the owner is responsible to know whether or not his ox has an irritable temperament. Therefore, even if the witnesses testified in court on the same day about three gorings, the owner could have prevented the third goring and he must pay Nezek Shalem for any damages that were caused.
Tosfos and the other Rishonim disagree with Rashi's interpretation of Rava's view. They write that both Abaye and Rava agree that the owner begins to pay Nezek Shalem only from the fourth goring onward. (Some say that Abaye and Rava argue only about "Mashma'us Dorshin," how to expound the verse, and there is no practical difference between them.) Tosfos writes that Rashi himself later retracted what he wrote here and explained the Gemara in this manner. According to this interpretation, when the Gemara says that "Yi'udei Tora" is accomplished by three testimonies on the same day, it does not mean that the owner must pay Nezek Shalem for the third goring but that from now on the owner must pay Nezek Shalem for any subsequent gorings. As mentioned above, both logic and the verse imply that the owner must be warned to watch his ox before the ox gores in order to be obligated to pay Nezek Shalem.
As mentioned above, these two approaches have major implications for understanding the Gemara's proof from the Beraisa for the view of "Yi'udei Tora."
(a) RASHI here explains that the Beraisa indeed follows the opinion of Rava, who maintains that if the testimony accomplishes "Yi'udei Tora," then the owner pays Nezek Shalem on the third goring even though he was never brought to court prior to this goring. This explains the Gemara's proof from the Beraisa for the view of "Yi'udei Tora." If the three testimonies obligate the owner to pay Nezek Shalem, then according to the opinion that says "Yi'udei Tora" it easily can be proven that the first two sets of witnesses wanted to make the Shor into a Mu'ad, for otherwise why would they have come to court for the third person whose ox was gored? If they wanted only to make the owner of the ox pay Chatzi Nezek, they should have come to court with the person whose ox was gored previously, which they witnessed, since he is the one who will receive the Chatzi Nezek. This is the Gemara's proof for "Yi'udei Tora."
The Gemara asks that even if the testimony accomplishes "Yi'udei Tora," why should the third set of witnesses share in the payment of the Mu'ad-half of the damages? They should be able to claim that they were not aware that the Shor had gored two times in the past and that they came only to make the owner obligated to pay Chatzi Nezek for the goring that they saw (since they are brought by the person whose ox was gored, which they witnessed).
Ravina answers that the third set of witnesses admit that they do not recognize the ox, and therefore they cannot obligate the owner to pay Chatzi Nezek mi'Gufo. It must be that they are coming to obligate him to pay Nezek Shalem Min ha'Aliyah. How can they make the Shor a Mu'ad if they do not know if it is the same one that gored in the past? The answer is that the Shor is already a Mu'ad because of the first two gorings (according to the way Rashi learns Rava), since the witnesses that testified about the first two gorings did recognize the ox.
This still does not completely answer the question. How does the third set of witnesses know that the ox that gored is the Mu'ad ox and not another ox which is a Tam? Some explain that the third set of witnesses testify that at the time of the goring they recognized it to be the same one that gored in the past, and it was only later that this ox wandered into the flock and became unidentifiable.
The problem with this explanation is that it does not explain the meaning of the last line of the Gemara, where the Gemara asks, "How could [the witnesses] make a Shor into a Mu'ad [with such testimony]?" The Gemara answers that the witnesses testify, "You have in your flock a Shor that gores, and therefore you must guard your entire flock." According to Rashi, what the owner must guard in the future has no bearing on this case, since this case involves only the payment for the third goring which already occurred (before the ox became mixed in with other oxen). The DIBROS MOSHE (end of #15) suggests that for this reason Rashi might not have had this last part of the Gemara in his Girsa.
Perhaps Rashi understood Ravina's answer differently. Ravina means that after the first two gorings, and before the third, the Shor ha'Mu'ad became mixed in with other oxen (or with an identical ox) in such a way that no one could possibly distinguish between the oxen.
The Gemara is asking that if the witnesses are not sure that the Shor ha'Mu'ad is the one that gored, how can they make the owner pay Nezek Shalem? The Gemara answers that when the oxen became mixed up, the owner himself could not identify which ox is the Mu'ad. Since he knew that there was a Mu'ad in the flock, he became responsible to watch the entire flock as if each ox was a Shor ha'Mu'ad. Therefore, even if the ox that gored the third time was not the same ox as the earlier one (or ones) that gored, the owner is responsible to pay Nezek Shalem because he was forewarned to guard that particular ox as well. This is in accordance with what we explained above, that even according to Rashi a Shor becomes a Mu'ad only because the owner should have watched it and he failed to do so. (Alternatively, since it is known that one ox is a Mu'ad and that, at present, this particular ox gored, it is assumed that this ox is the Mu'ad and not that there is a second ox in the flock that gores. See TOSFOS RABEINU PERETZ.)
Why does the Gemara not explain that the witnesses recognized the ox at the time of the goring, and the ox became mixed up only afterwards, and that is how it is known that the Mu'ad caused the damage? The answer is that if the third set of witnesses once recognized the ox, they still may claim that they wanted to make the owner pay Chatzi Nezek at a later time when they would recognize the ox that they originally saw. It must be that the third set of witnesses never recognized which ox gored in the first place.
(b) TOSFOS explains that the three gorings in the case of the Beraisa only make the Shor a Mu'ad such that it will pay Nezek Shalem when it gores a fourth time. Why do the Edim Zomemim need to pay for the Mu'ad damages if the Shor is not yet a Mu'ad? Tosfos (end of DH v'Lo) gives two explanations. In his first explanation, Tosfos says that they pay the damage of a Mu'ad if the Shor eventually does damage a fourth time, since the earlier testimony is what caused it to be obligated for Mu'ad damages. Alternatively, Tosfos says that even if the ox does not gore a fourth time, it is now worth less on the market as a result of becoming a Shor ha'Mu'ad, and it is that loss of value for which the three sets of witnesses have to compensate when they are found to be Edim Zomemim.
The Gemara proves from the Beraisa the view of "Yi'udei Tora," since it is only when the three sets of witnesses come together that Beis Din can be sure that the first two sets wanted to make the Shor into a Mu'ad and not just a Tam. How can their coming together prove that they wanted to make the Shor a Mu'ad since, in any case, they testified before the Shor gored a fourth time -- before its owner became obligated to pay for it as a Mu'ad? (Tosfos maintains that the Shor must become a Mu'ad before the fourth goring.) The witnesses did not come to court with the owner of the ox that was damaged by a Mu'ad, but rather they came to court with the owner of an ox that was damaged by a Tam!
Tosfos (24b, DH Leimru; see MAHARAM) explains that the very fact that the witnesses did not come to court immediately but they waited for the third goring shows that they were trying to make the Shor into a Mu'ad.
When Ravina explains that the third set of witnesses must have intended to make the Shor a Mu'ad because they testified that they did not recognize the ox that caused the damage, he means that the witnesses did recognize the ox at the time that it caused the damage, but it became mixed up with the other oxen before the time of the testimony. The witnesses are trying to make the owner have to pay Nezek Shalem if it later becomes clear which of the oxen was the original Mu'ad, and if it causes damage a fourth time.
Tosfos asks that if the only way for the witnesses to make the ox a Mu'ad is by later distinguishing which ox was the one that gored, the original question returns -- perhaps they wanted to make the Shor a Tam to obligate the owner to pay "mi'Gufo" when that ox is identified as the one that gored!
Tosfos answers that if the witnesses wanted to make the owner pay Chatzi Nezek, they should have waited until they could distinguish which ox gored. Why did they testify before they knew which ox gored? It must be that they wanted to make the Shor into a Mu'ad and obligate the owner to pay Nezek Shalem, and the owner only pays Nezek Shalem if he was warned to watch his ox before the fourth goring. That is why the witnesses came to court immediately, before waiting until they recognized which Shor gored.

24b----------------------------------------24b

2) "YI'UDEI TORA" AND "YI'UDEI GAVRA"
QUESTION: The Gemara discusses the mechanism of how three sets of testimony make a Shor into a Shor ha'Mu'ad. Do they serve to make the Shor Mu'ad ("Yi'udei Tora") or do they serve to make the owner Mu'ad ("Yi'udei Gavra")? The Gemara proves that the purpose of the testimony is to make the Shor a Mu'ad ("Yi'udei Tora"). It proves this from a Beraisa which teaches that if three sets of witnesses testify that an ox gored on three different occasions, and all of them are found to be Edim Zomemim, all six witnesses must jointly pay the second half of the value of the payment which they wanted to obligate the owner of the Shor to pay (the payment of a Shor ha'Mu'ad), since they all intended to obligate him to pay that payment.
How does the Beraisa know that the witnesses intended to cause the owner to have to pay damages caused by a Shor ha'Mu'ad? Perhaps each set intended to cause him to pay for damages caused by a Shor Tam (i.e. Chatzi Nezek). It must be that all three pairs of witnesses came together to testify that the Shor was a Mu'ad as a result of three gorings that occurred on different days in the past, as Rashi explains. If such testimony is accepted, it must be that the witnesses are accomplishing "Yi'udei Tora," since the Shor becomes a Mu'ad even though the owner was not warned on three separate occasions.
The Gemara asks that even if the testimony accomplishes "Yi'udei Tora," why should the third set of witnesses have to share in the payment of the Mu'ad-half of the payment? Why can they not claim that they were not aware that the Shor had gored two times in the past, and they came only to make the owner liable (Chatzi Nezek) for the goring which they saw on this occasion?
The Gemara first answers that the witnesses gestured to each other. Rav Ashi answers that the three sets of witnesses came to court together. Ravina answers that the witnesses testify that they saw one of the owner's oxen gore, but they are not sure which one it was. (See previous Insight.)
Are these answers attempts to explain the Beraisa according to the view of "Yi'udei Tora," or do they also answer the Beraisa according to the view of "Yi'udei Gavra"? (As explained above, the view of "Yi'udei Gavra" must explain that the three sets of witnesses came on three separate occasions and not at the same time.)
ANSWERS:
(a) RASHI explains that these answers explain only how the Beraisa knows that the third set of witnesses intended to make the Shor into a Mu'ad, according to the opinion of "Yi'udei Tora." The first answer says that the first two pairs of witnesses gestured to the third pair to come and testify. Accordingly, the third pair must have known that two sets of witnesses testified previously.
Rav Ashi answers that the three sets of witnesses walked into Beis Din together, which clearly shows that they knew what each other would testify.
Ravina answers that the third set of witnesses could not identify which ox did the damage. (Rashi explains that this answer, too, does not suffice according to the view of "Yi'udei Gavra.")
(b) TOSFOS RABEINU PERETZ explains that Ravina's answer applies even according to the opinion of "Yi'udei Gavra." Ravina means that each of the three sets of witnesses testified that they do not remember which ox it was that gored. If they later identify the ox and it gores a fourth time, the owner will have to pay damages of a Mu'ad. How does Beis Din know that they intend to identify the Shor later and make it into a Mu'ad, and not to make it merely a Tam now? Their intention must be to make the Shor into a Mu'ad because, otherwise, they would wait to come to court until they could identify the Shor, since they accomplish nothing by testifying before they can identify the ox (as mentioned in the end of the previous Insight).
(c) TOSFOS cited by Tosfos Rabeinu Peretz (see Tosfos DH b'Makirin) and the ME'IRI explain that not only does Ravina's answer address the view of "Yi'udei Gavra," but the first answer of the Gemara does as well. When the Gemara says that they gestured to each other, it means that each time one set of witnesses came to court the other sets stood in court and winked at them, gesturing in such a way to show that they are plotting together.
However, the answer of Rav Ashi -- that all of the witnesses came together -- obviously maintains that the testimony accomplishes "Yi'udei Tora" since the witnesses are coming on the same day.
(d) RABEINU CHANANEL cited by Tosfos Rabeinu Peretz explains that even Rav Ashi's answer explains the Beraisa according to the view of "Yi'udei Gavra": If all three sets came together when the third set came to Beis Din, that alone shows that they must have plotted together, for otherwise why did the first two sets return to Beis Din?
The RA'AVAD makes a similar suggestion, but he explains that Rav Ashi means that all three sets came to Beis Din each time, on each occasion when one of the sets of witnesses came to testify. This is the implication of the words of Rabeinu Chananel as printed in our text. (See also MAHARSHA in MAHADURA BASRA to Tosfos DH Ela.)

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