BAVA KAMA 34 (28 Sivan) - dedicated to the memory of Hagaon Rav Yisroel Zev (ben Rav Avrohom Tzvi) Gustman, ZT'L, Rosh Yeshiva of "Yeshivas Netzach Yisrael-Ramailes" (in Vilna, Brooklyn, and then Yerushalayim), author of "Kuntresei Shi'urim," and renowned Dayan in pre-war and post-war Vilna, on the day of his Yahrzeit. Dedicated by his Talmidim Harav Eliezer Stern of Brooklyn NY, and Rabbis Mordecai Kornfeld, Avraham Feldman, Yechiel Wachtel, and Michoel Starr of Yerushalayim, who merited to learn from Rav Gustman in Yerushalayim.
PAST DEDICATION
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.

1)

PRIORITY TO COLLECT

(a)

Question #2: Even when he borrowed after the damage, since the creditor grabbed the ox first, he should collect from it!

(b)

Suggestion: This teaches that if a creditor collected before earlier creditors (and there is not enough to pay them all), his collection is invalid!

(c)

Rejection (and answer to both questions): No. If a creditor collected before earlier creditors, his collection stands;

1.

A damaging ox is different. The victim says, even if you consider that the ox was yours from when you lent him, I collect it. (Regarding a Tam, the victim collects from the damager.)

2)

WHEN THE OXEN CHANGE IN VALUE

(a)

(Beraisa): If an ox worth 200 gored an ox worth 200, and the damage was 50, and the ox rose in value to 400, but if not for the damage, it would now be worth 800, the damager pays according to the time of damage (50. If it is Tam, it pays 25.)

(b)

If the victim went down in value, payments are according to the time of judgment.

(c)

If the damager rose in value, it pays according to the time of damage. If it went down in value, it pays according to the time of judgment.

(d)

Question: 'If the damager rose in value, it pays like the time of damage' is like R. Yishmael, who says that the victim is a regular creditor (he has no partnership in the animal);

1.

The Seifa says 'if it went down in value, it pays like the time of judgment.' This is like R. Akiva, who says that they are partners!

2.

Is the Reisha like R. Yishmael, and the Seifa like R. Akiva?!

(e)

Answer: The entire Beraisa is like R. Akiva. The case is, he fattened the ox.

(f)

Question: If so, why must the Reisha teach that if the damaged ox rose in value to 400, the damager pays according to the time of damage? This is obvious!

(g)

Answer (Rav Papa): The Reisha applies whether or not he fattened it. The Chidush is when it rose in price by itself;

1.

The Seifa is only when he fattened it.

(h)

Question: What is the case when the damaged animal went down in value?

1.

If this was because he overworked it, that is no reason for the damager to pay more!

(i)

Answer (Rav Ashi): It went down due to the wound. It is all due to the goring.

3)

SPLITTING THE OXEN

(a)

(Mishnah - R. Meir): If an ox worth 200 gored an ox worth 200, and the carcass is worthless, in this case the Torah said "they will sell the live ox and split the money."

(b)

R. Yehudah: You fulfilled that verse, but not "also the dead ox they will split"!

1.

Rather, an ox worth 200 gored an ox worth 200, and the carcass is worth 50. Each gets half the live ox and half the dead ox.

(c)

(Gemara - Beraisa - R. Yehudah): If an ox worth 200 gored an ox worth 200, the carcass is worth 50, each gets half the live ox and half the dead ox. This is the case the Torah discusses;

(d)

R. Meir: No, the Torah discusses when both were worth 200, and the carcass is worthless - "they will sell the live ox and split the money";

1.

"Also the dead ox they will split" teaches that the damager pays half the difference between the value of the gored ox when alive and after death.

(e)

Question: (When the carcass is worth 50,) both Tana'im agree that both parties end up with 125. What do they argue about?

(f)

Answer #1 (Rava): They argue about when the value of the carcass declines. R. Meir says that the victim loses. R. Yehudah says that the damager shares the loss.

(g)

Question (Abaye): If so, R. Yehudah holds that a Tam is more stringent than a Mu'ad! (We learned (10a) that regarding a Mu'ad, the victim suffers the entire loss.)

34b----------------------------------------34b

1.

Suggestion: That is true!

i.

(Mishnah - R. Yehudah): (If the owner guarded the animal poorly) a Tam is liable, and a Mu'ad is exempt.

2.

Rejection R. Yehudah said so only about guarding the ox, for the verses say so;

i.

We have no source that a Tam is more stringent regarding payments!

ii.

(Beraisa - R. Yehudah) Suggestion: If a (Tam) ox worth 100 (Zuz) gored an ox worth 20, and the carcass is worth four, each gets half the live ox and half the dead ox.

iii.

Rejection: This cannot be! A Mu'ad is more stringent than Tam, and Mu'ad does not pay more than the damage!

(h)

Answer #2 (R. Yochanan): They argue about when the carcass rose in value.

1.

R. Meir holds that the victim profits. R. Yehudah holds that the damager shares the profit (i.e. he pays less).

(i)

This explains R. Yehudah's Havah Amina:

1.

Suggestion: The Torah was lenient on the damager, to allow him half the increased value of the carcass. Perhaps if an ox worth 20 gored an ox worth 100, and the carcass is worth 50, that each gets half the live ox and half the dead ox!

2.

Rejection: Where do we find that the damager profits? Also, it says "he will pay", he will not receive!

3.

Question: Why must we also bring the verse?

4.

Answer: One might have thought that when the victim has no loss, e.g. his animal was worth 20, and the carcass is worth 30, then both victim and damager would gain five. The verse teaches that the damager never gains.

(j)

Question (R. Acha bar Tachlifa): If so, R. Yehudah (has no source that the damager pays half the decrease due to the goring. Rather, we sell both and split the money, even when the damager is worth more than the victim. If so, he) holds that a Tam sometimes pays more than half- damage. However, it says "they will sell the live ox and split the money" (and R. Yehudah (37a) agrees that it pays half-damage)!

(k)

Answer (Rava): No. R. Yehudah agrees that the victim gets half the decrease in value.

(l)

Question: We learn this from "also the dead ox they will split";

1.

R. Yehudah learned from this verse that each gets half the live ox and half the dead ox!

(m)

Answer: Had the verse come to teach only that, it would have said 'and the dead ox they will split';

1.

Rather, it says "also the dead ox they will split" to teach both laws.

4)

MONETARY LIABILITY OF ONE LIABLE TO DIE

(a)

(Mishnah): Sometimes Reuven is liable for his ox' action and exempt for his own, and sometimes vice-versa.

1.

If his ox caused embarrassment, he is exempt. If he embarrassed, he is liable;

2.

If his ox destroyed a limb of Reuven's slave, he is exempt. If he did so, he is liable;

3.

If his ox wounded his father or mother, or burned something on Shabbos, he is liable. If Reuven did so, he does not pay, for he is liable to die.

(b)

(Gemara - R. Avahu - Beraisa): All who ruin (on Shabbos) are exempt, except for one who wounds or burns.

(c)

Objection (R. Yochanan): Don't teach this way. It is wrong!

1.

It could be true only if one wounds to feed the blood to his dog, or burns to get the ashes.

(d)

Question: (against R. Yochanan - Mishnah): If his ox burned something on Shabbos, he is liable. If he did so, he does not pay, for he liable to die.

1.

The case in which he burned is like when his ox burned. Just like his ox does not burn for a need, also he, and he is liable to die!

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