AN OX SENTENCED TO BE STONED (cont.)
(Gemara - Beraisa): If Reuven's ox killed, before the final verdict, if he sold it, it is sold. If he made it Hekdesh, it is Hekdesh. If he slaughtered it, the meat is permitted. If the Shomer returned it to Reuven's house, it is considered returned;
After the verdict (if these were done), it is not sold, it is not Hekdesh, the meat is forbidden; and it is not considered returned.
R. Yakov says, if the Shomer returned it, it is considered returned.
Suggestion: Chachamim say that a Shomer cannot return something deposited by him after it became Asur b'Hana'ah (forbidden to benefit from it. Rather, he must pay). R. Yakov says that he can return it.
Rejection (Rabah): All agree that a Shomer can return something that became Asur b'Hana'ah;
Version #1 (Rashi): If they argued about this, Chachamim would not allow returning Chametz after Pesach (but we know that they do).
Version #2 (Tosfos): If they argue about this, the argument (here) should have been taught regarding Chametz on Pesach (lest we think that they argue about something else).)
Rather, they argue about whether or not Beis Din can sentence an ox in its absence.
Chachamim say they cannot. Reuven can say, you caused me to lose my ox. Had you returned it to me, I would have hid it, it would not have been sentenced;
R. Yakov says, an ox can be sentenced in its absence. In any case, it would have been sentenced.
Question: From where do Chachamim learn?
Answer: "The ox will be stoned, and also the owner will die" - execution of an ox is like execution of the owner;
Just like we sentence a man only when he is present, also regarding an ox.
R. Yakov says, this applies only to a man, who can make claims. It is unreasonable to learn this regarding an ox!
THE RESPONSIBILITY OF SHOMRIM
(Mishnah): If one gave an animal to a Shomer Chinam, borrower,...
(Beraisa): Four Shomrim are in place of the owner: a Shomer Chinam, a borrower, a Shomer Sachar, and a renter;
If the animal is Tam and it kills, it is killed, and Kofer is not paid;
If the animal is Mu'ad and if it kills, it is killed, and Kofer is paid;
The Shomer must compensate the owner for the loss of his ox, except for a Shomer Chinam.
Question: What is the case?
If he guarded the ox, no Shomer should be liable!
If he did not guard the ox, even a Shomer Chinam should be liable!
Answer: The case is, he guarded it poorly.
This is enough for a Shomer Chinam, but not for other Shomrim.
Question: Who is the Tana of the Beraisa?
Suggestion: It is R. Meir, who says that a renter is like a Shomer Chinam.
Rejection: If so, also a renter should be exempt!
Suggestion: It is like R. Yehudah, who says that a renter is like a Shomer Sachar.
Rejection: If so, all should be exempt from Kofer regarding a Mu'ad (he holds that a poor guarding suffices for a Mu'ad)!
Answer #1 (Rav Huna bar Chinena): The Beraisa is R. Elazar, who says that a Mu'ad cannot be guarded, and it must be killed;
Regarding a renter, he holds like R. Yehudah, that he is like a Shomer Sachar.
Answer #2 (Abaye): Really he holds like R. Meir, according to Rabah bar Avuha, who switches their opinions.
(Rabah bar Avuha): R. Meir says that a renter is like a Shomer Sachar, and R. Yehudah says that he is like a Shomer Chinam.
(R. Elazar): If Reuven handed his ox over to a Shomer Chinam, and it damaged, the Shomer is liable. If it was damaged, he is exempt.
Question: What is the case?
If he accepted to guard it, he should be liable even if it is damaged!
If he did not accept to guard it, he should be exempt even if it damaged!
Answer (Rava): Really, he accepted to guard it. The case is, he knew that it was a gorer.
He expected to have to guard it from damaging. He did not expect to have to guard it from being damaged (since animals fear it)!
HOW WELL MUST ONE GUARD AN ANIMAL?
(Mishnah - R. Meir): If Reuven tied his animal by the rope around its neck, or locked (a gate) in front of it properly, and it escaped and damaged, he is liable, whether it is Tam or Mu'ad;
R. Yehudah says, a Tam is liable, and a Mu'ad is exempt. It says "if he will not guard it", and this is guarded!
R. Elazar says, a Mu'ad cannot be guarded. It must be killed.
(Gemara) Question: What is R. Meir's reason?
Answer: He holds that people normally do not guard their oxen. The Torah obligates a Tam to pay; this mandates a minimal guarding. It says about a Mu'ad "if he will not guard it", that it must be guarded well. We learn a Tam (from a Gezeirah Shavah "Yigach-Yigach") from a Mu'ad.
R. Yehudah holds that people normally guard their oxen (minimally). The Torah obligates a Tam to pay; this mandates a proper guarding. It says about a Mu'ad "if he will not guard it." This is a second verse coming to include the same thing (that it must be guarded well), so it really comes to exclude. I.e., a poor guarding suffices for a Mu'ad.
Question: We should learn a Tam from a Mu'ad, through the Gezeirah Shavah!
Answer: It says about a Mu'ad "if he will not guard it" - a minimal guarding is not enough for anything else.
Question: We need the verse to obligate one who did not guard!
Answer: It could have said only "if he will not guard." "It" is extra, to teach that a minimal guarding suffices only for a Mu'ad.
(Beraisa - R. Eliezer ben Yakov): A minimal guarding suffices for both Tam and Mu'ad.
Question: How does he learn?
Answer: He learns that a minimal guarding suffices for a Mu'ad, like R. Yehudah;
He learns Tam from Mu'ad from the Gezeirah Shavah, like R. Meir.
(Rav Ada bar Ahavah): R. Yehudah holds that a minimal guarding exempts only the additional payment of a Mu'ad. It does not exempt half-damage that a Tam pays.
(Rav): An ox Mu'ad to gore with the right horn is not Mu'ad to gore with the left horn.
Question: (Rav need not teach about paying half or full damage. We can learn this from a Mishnah, which says that Mu'ad for animals is not Mu'ad for people!) Surely, he came to teach about how well it must be guarded.) Like whom does Rav hold?
He cannot hold like R. Meir. R. Meir requires a proper guarding for both Tam and Mu'ad!
If he holds like R. Yehudah, even the right horn has both a Tam and Mu'ad side (so he could have taught about the levels of guarding the right horn alone)!
Answer: Really, he holds like R. Yehudah. Rav disagrees with Rav Ada bar Ahavah;
Rav holds that only in this case R. Yehudah holds that a Mu'ad has a Tam side.