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)

(a)In a case where an ox worth two hundred Zuz gored another ox worth two hundred Zuz, causing damage to the value of fifty Zuz, what does the Beraisa say, assuming that the value of the Nizak rose to four hundred Zuz (and, if not for the injury, it would have risen to eight hundred)? Can the Mazik claim exemption from payment, on the grounds that, at the end of the day, the ox did not depreciate in spite of its death?

(b)What is the reason for this ruling?

(c)How else might we explain the Chidush of the Beraisa, from the perspective of the Nizak rather than of the Mazik?

(d)And what does the Tana say in a case where the value of the Nizak depreciated?

(e)If the value of the Mazik rose, the Nizak may only claim from it according to its value at the time of the damage. What does the Tana say in a case where the value of the Mazik depreciated?

1)

(a)In a case where an ox worth two hundred Zuz gored another ox worth two hundred Zuz, causing damage to the value of fifty Zuz, assuming that the value of the Nizak rose to four hundred Zuz (and, if not for the injury, it would have risen to eight hundred) the Beraisa obligates the Mazik to pay according to the Nizak's value at the time of the damage.

(b)The Mazik cannot claim exemption from payment, on the grounds that at the end of the day, the ox did not depreciate in spite of its death seeing as, if not for the damage, its value would have risen even more.

(c)We might also explain the Chidush of the Beraisa from the perspective of the Nizak rather than the Mazik by explaining that the Nizak is not entitled to claim the Chatzi Nezek of two hundred Zuz which he lost from the potential rise in price.

(d)In a case where the value of the Nizak depreciated, the Tana says that we go after its value at the time of the court hearing, and the Nizak may claim the additional losses.

(e)If the value of the Mazik rose, the Nizak may only claim from it according to its value at the time of the damage. In a case where the value of the Mazik depreciated the Tana once again goes after the time of the court hearing, only this time, it is the Nizak who loses.

2)

(a)In what way do the two statements that comprise the Seifa (Shavach Mazik ... ) appear to clash? What is wrong with saying that if the Mazik goes up, we go after the time of the damage, whereas if it goes down, we go after the time of the court hearing?

(b)If, as we conclude, the author is Rebbi Akiva, why does the Nizak not then share in the proceeds when the price rose?

(c)What is the problem with this explanation from the Reisha (Shavach Nizak ... )?

(d)How does this Kashya disprove the second explanation in 'Shavach Nizak' (where it is the Nizak who claims half the loss of the potential gain)?

2)

(a)The two statements that comprise the Seifa (Shavach Mazik ... ) appear to clash because the author of the Mishnah which holds that when the Mazik goes up, we go after the time of the damage, is Rebbi Yishmael (according to whom the Nizak does not acquire the actual ox), whereas if, when it goes down, we go after the time of the court hearing then the author has to be Rebbi Akiva (who holds that he does).

(b)In fact, we conclude, the author is Rebbi Akiva, and the reason that the Nizak does not share in the proceeds when the price rose is because the Tana is speaking when the Mazik became fat because the owner fed it (and it would not be fair for the Nizak to 'become rich at the expense of the Mazik').

(c)The problem with this explanation from the Reisha is that in order to balance with the Seifa, it must speak when the Nizak fattened his ox. In that case what is the Chidush? Is it not obvious that the Mazik cannot claim exemption at the expense of the Nizak?

(d)This Kashya disproves the second explanation in 'Shavach Nizak' (where it is the Nizak who claims half the loss of the potential gain) because it is not obvious at all, that, because the Nizak fed his animal, he cannot claim half of the potential improvements (in fact, if anything, the opposite is true).

3)

(a)How does Rav Papa establish the Reisha, so as to conform with our interpretation of the Seifa?

(b)Why can we not establish the Reisha when the Nizak became weaker due to the owner having worked with it?

(c)Then to what do we attribute the ox's depreciation?

3)

(a)To conform with our interpretation of the Seifa Rav Papa establishes the Reisha either when the Nizak fed the animal (when there is no Chidush) or when he did not, and its rise in price was due to other causes (when there is).

(b)We cannot establish the Reisha when the Nizak became weaker due to the owner having worked with it because it would then be unfair for the Nizak to receive more Nezek on account of the depreciation that he himself caused.

(c)So we attribute the ox's depreciation to the wound caused by the Mazik's ox (as if the ox's horn was still buried inside the wounded ox).

4)

(a)How does Rebbi Meir establish the Pasuk "u'Machru Es ha'Shor ha'Chai v'Chatzu Es Kaspo"?

(b)On what basis does Rebbi Yehudah disagree?

(c)How does Rebbi Yehudah then establish the Pasuk?

4)

(a)Rebbi Meir establishes the Pasuk "u'Machru Es ha'Shor ha'Chai v'Chatzu Es Kaspo" by an ox worth two hundred Zuz which gored another ox worth two hundred Zuz, and the carcass is worth nothing.

(b)Rebbi Yehudah disagrees on the basis of the continuation of the Pasuk "v'Gam Es ha'Mes Yechetzun", which appears to be superfluous according to Rebbi Meir.

(c)Rebbi Yehudah establishes the Pasuk by an ox worth two hundred Zuz which gored another ox worth two hundred Zuz, and the carcass is worth fifty Zuz, in which case the Mazik and the Nizak each take half the live Mazik and half the dead Nizak.

5)

(a)How does Rebbi Meir interpret the Pasuk "v'Gam Es ha'Mes Yechetzun"?

(b)According to Rebbi Yehudah, each one receives twenty-five Zuz from the carcasss of the Nizak, plus a hundred Zuz from the live Mazik. What will they each one receive according to Rebbi Meir?

5)

(a)Rebbi Meir interprets the Pasuk "v'Gam Es ha'Mes Yechetzun" to mean 'P'chas she'Pachsaso Miysah Machtzin b'Chai' (the devaluation caused by the death of the Nizak comes out of the body of the Mazik).

(b)According to Rebbi Yehudah, each one receives twenty-five Zuz from the carcass of the Nizak, plus a hundred Zuz from the live Mazik; whereas according to Rebbi Meir the Nizak takes the carcass (worth fifty Zuz), plus seventy-five out of the live Mazik.

6)

(a)Seeing as either way, the Nizak receives a hundred and twenty five Zuz, it is not at first clear over what the Tana'im are arguing. Rava initially suggests that they are arguing over the depreciation of the carcass. What will each one then hold?

(b)What do we learn from the Pasuk "v'ha'Mes Yiheyeh lo"?

(c)Based on this Derashah, how does Abaye then refute Rava's suggestion?

(d)Seeing as Rebbi Yehudah is more stringent by a Tam than by a Mu'ad as far as the degree of guarding is concerned, as we shall see in 'Shor she'Nagach Es ha'Parah', what is Abaye's Kashya on Rava? Maybe he is more stringent here, too?

6)

(a)Seeing as either way, the Nizak receives a hundred and twenty five Zuz, it is not at first clear over what the Tana'im are arguing. Rava initially suggests that they are arguing over the depreciation of the carcass, in which case Rebbi Meir holds that this is borne by the Nizak, whereas according to Rebbi Yehudah, it is the Mazik who must bear the loss.

(b)We learn from the Pasuk "v'ha'Mes Yiheyeh lo" that, in the case of a Mu'ad, the Nizak alone bears the depreciation of the carcass.

(c)Based on this Derashah, Abaye refutes Rava's suggestion because it will now transpire that, according to Rebbi Yehudah, the Din of a Tam is more stringent than a Mu'ad (where the Mazik does not bear the depreciation of the Nizak's ox), which would appear rather odd!

(d)Even though Rebbi Yehudah is more stringent by a Tam than by a Mu'ad as far as the degree of guarding is concerned, as we shall see in 'Shor she'Nagach Es ha'Parah', Abaye's Kashya on Rava is valid because it is not because he is more stringent by Tam regarding the method of guarding, that he will also be more stringent regarding the payment (as we shall now see).

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

7)

(a)On what grounds does Rebbi Yehudah in a Beraisa reject the suggestion that if an ox worth a Manah (a hundred Zuz) gores one worth five Sela'im (twenty Zuz), and the carcass is worth only one Sela, the Nizak should take half the Mazik and half the Nizak?

(b)What do we set out to prove from this Beraisa?

(c)So how does Rebbi Yochanan finally establish the basis of the Machlokes between Rebbi Meir and Rebbi Yehudah in our Mishnah (seeing as both agree that in the case described in our Mishnah, the Nizak receives a hundred and twenty five Zuzim damages?

(d)What does each one then hold?

7)

(a)Rebbi Yehudah in a Beraisa rejects the suggestion that if an ox worth a Manah (a hundred Zuz) gores one worth five Sela'im (twenty Zuz), and the carcass is worth only one Sela, the Nizak should take half the Mazik and half the Nizak on the grounds that if a Mu'ad, which is more Chamur than a Tam, only pays for the damage and no more, then how can a Tam possibly be made to pay in excess of the damage?

(b)We set out to prove from this Beraisa that as regards payment, Rebbi Yehudah maintains that a Tam must be more lenient than a Mu'ad, as we just explained.

(c)Rebbi Yochanan finally establishes the basis of the Machlokes between Rebbi Meir and Rebbi Yehudah in our Mishnah (bearing in mind that both agree that in the case described in our Mishnah, the Nizak receives a hundred and twenty five Zuzim damages) by 'Sh'vach Neveilah'.

(d)Rebbi Meir holds 'Sh'vach Neveilah goes to the Nizak' (because, according to him, the Mazik is not a partner in the Nizak ox at all), whereas according to Rebbi Yehudah, they divide it.

8)

(a)Based on Rebbi Yehudah's opinion that the Mazik shares in the improvement of the Nizak, what does Rebbi Yehudah himself suggest in a case where an ox worth five Sela'im (twenty Zuz) gores an ox worth a Manah, and the carcass is worth fifty Zuz?

(b)And on what grounds does he refute this suggestion?

(c)What does he learn from the Pasuk "Shalem Yeshalem", and from the double Lashon?

(d)In light of the strong Sevara that he just presented, why does Rebbi Yehudah require an additional Derashah for this?

8)

(a)Based on Rebbi Yehudah's opinion that the Mazik shares in the improvement of the Nizak, Rebbi Yehudah himself suggests that in a case where an ox worth five Sela'im gores an ox worth a Manah, and the carcass is worth fifty Zuz he should also receive half the Nizak.

(b)And he refutes this suggestion on the grounds that nowhere do we find the Mazik making money out of his liabilities.

(c)From the Pasuk "Shalem Yeshalem", he learns that the Mazik pays but does not receive. The double Lashon extends this principle to a Tam.

(d)Despite the strong Sevara that he just presented, Rebbi Yehudah requires this additional Derashah to cover a case where not only the Mazik gains, but the Nizak does not lose either (i.e. where the carcass is worth more than half the loss, as well as more than the Mazik).

9)

(a)If, as we learned earlier, Rebbi Yehudah does not hold of 'P'chas she'Pachso Miysah Machtzin b'Chai', Rav Acha bar Tachlifa asked Rava, it will be possible for a Mazik to pay more than half the damage (in spite of the Pasuk " ... v'Chatzu Es Kaspo". What will be the case?

(b)What was Rava's reply?

(c)But how is this possible? Does he not already learn from the Pasuk "v'Gam Es ha'Mes Yechetzun" that the Mazik shares in Sh'vach Neveilah?

9)

(a)If, as we learned earlier, Rebbi Yehudah does not hold of 'P'chas she'Pachso Miysah Machtzin b'Chai', Rav Acha bar Tachlifa asked Rava, it will be possible for a Mazik to pay more than half the damage (in spite of the Pasuk " ... v'Chatzu Es Kaspo" such as where an ox worth fifty Zuz gores an ox worth forty Zuz and the carcass is worth twenty Zuz (seeing as half the loss is only ten Zuz, whereas half the Mazik is worth twenty-five.

(b)Rava replied that Rebbi Yehudah actually does concur with 'P'chas she'Pachso Miysah ... '.

(c)Even though he already learns from the Pasuk "v'Gam Es ha'Mes Yechetzun" that the Mazik shares in Sh'vach Neveilah that is from the extra word "v'Gam". But from the actual Pasuk he concurs with Rebbi Meir, who learns from there 'P'chas she'Pachso Miysah Machtzin b'Chai'.

10)

(a)Our Mishnah lists cases where one is liable to pay for the damage performed by one's ox but not for the damage performed by oneself, and vice-versa. From which of the five categories of damage is one Patur, in the event that one's ox injures someone? From where do we learn this?

(b)Whom will ...

1. ... his ox injure that does not obligate him to pay (even though he would have had to pay had he performed the damage)?

2. ... he injure that does not obligate him to pay (even though he would have had to pay had his ox performed the damage?

(c)What is the reason for the latter ruling?

(d)What will the Din now be if he or his ox burn a haystack on Shabbos?

10)

(a)Our Mishnah lists cases where one is liable to pay for the damage performed by one's ox but not for the damage performed by oneself, and vice-versa. Should one's ox injure someone the Mazik is Patur from Boshes, which we learn from the Pasuk "Ish ba'Amiso", 've'Lo Shor ba'Amiso'.

(b)Should ...

1. ... his ox knock out the eye or the tooth of an Eved, he will not be obligated to pay (even though he would have been, had he performed the damage).

2. ... he injure his father or mother he will not be obligated to pay (even though he would have been, had his ox performed the damage).

(c)... due to the principle 'Kam leih b'de'Rabah Mineih' (meaning that someone who receives a more stringent punishment (such as the death-penalty), is absolved from the less stringent one (such as paying).

(d)If he burns a haystack on Shabbos he is not liable to pay (because of 'Kam leih b'de'Rabah Mineih'); whereas if his ox does so, he is.

11)

(a)What does the Beraisa cited by the Beraisa expert in front of Rebbi Yochanan state (regarding 'Kol ha'Mekalkelin ... ')?

(b)From where did the Tana learn the Ptur by ...

1. ... Chovel?

2. ... Mav'ir?

(c)Rebbi Yochanan reacted by instructing the Beraisa expert to erase his Beraisa. On what condition did he allow him to retain it?

(d)How will Rebbi Yochanan then justify the Mishnah, which obligates someone who causes a bruise (seeing as no blood came out)? Why would one need the bruise?

11)

(a)The Beraisa cited by the Beraisa expert in front of Rebbi Yochanan states that anyone who spoils something on Shabbos is Patur, with the exception of someone who wounds (Chovel) and someone who burns something (Mav'ir).

(b)The Tana learned the P'tur by ...

1. ... Chovel from the fact that the Torah finds it necessary to specifically permit Milah on Shabbos (even though it causes a wound).

2. ... Mav'ir from the fact that the Torah forbids the burning on Shabbos of a bas Kohen who committed adultery.

(c)Rebbi Yochanan reacted by instructing the Beraisa expert to erase his Beraisa unless he established it where he needed the blood for his dog and the ashes for some reason or other.

(d)Rebbi Yochanan will justify the Mishnah, which obligates someone who causes a bruise (despite the fact that no blood came out) in a case where he needed to redden the animal's neck to attract would-be buyers, in which case, he will be Chayav for dyeing.

12)

(a)Our Mishnah strikes a contrast between a person who sets fire to a haystack on Shabbos, and his ox which does the same thing. How do we try to establish the case (with regard to the owner), and prove Rebbi Yochanan wrong?

(b)How do we reconcile the two cases in a way that will conform with Rebbi Yochanan?

(c)What do we mean when we say that the ox needed the fire?

(d)How do we know ...

1. ... that, according to Rav Ivya?

2. ... that such a thing is possible? What happened with the donkey belonging to Rav Papa?

12)

(a)Our Mishnah strikes a contrast between a person who sets fire to a haystack on Shabbos, and his ox which does the same thing. We try to establish the case (with regard to the owner) where, like his ox, he has no need for the fire, proving Rebbi Yochanan wrong.

(b)To conform with Rebbi Yochanan, we reconcile the two cases conversely by rather comparing the ox to the person, in which case, the former, like the latter, did need the fire.

(c)When we say that the ox needed the fire, we mean that it had a sore back, and needed to roll in the ashes in order to be cured.

(d)We know ...

1. ... that, says Rav Ivya, because after the fire has turned the fuel into ashes, it rolls in the ashes.

2. ... that such a thing is possible from the donkey with toothache that belonged to Rav Papa which knocked off the lid of a barrel of vinegar and drank some beer, in order to alleviate its toothache, and was cured.

OTHER D.A.F. RESOURCES
ON THIS DAF