PAST DEDICATION
BAVA KAMA 45 (17 Shevat) - Dedicated by Mrs. Idelle Rudman in memory of Harav Reuven Moshe Rudman ben Harav Yosef Tuvia Rudman on his third Yahrzeit.

1)

(a)What distinction does the Tana of the Beraisa draw between an owner who, after his ox killed someone, sells it, slaughters it or declare it Hekdesh before it has been sentenced to stoning and afterwards?

(b)And what does he say about a Shomer who returns the ox that gored someone to death to its owner ...

1. ... before the sentence?

2. ... after the sentence?

(c)With which of the Tana Kama's rulings does Rabbi Yakov disagree?

(d)Assuming the basis of their Machlokes to be whether one can say to the owner of Isurei Hana'ah 'Harei she'Lecha Lefanecha', what other practical ramifications will their Machlokes have.

1)

(a)The Tana of the Beraisa rules that, if, after his ox killed someone, the owner sells, slaughters it or declares it Hekdesh before it has been sentenced to stoning these transactions are valid, but not afterwards.

(b)He also rules that if a Shomer returned the ox that gored someone to death to its owner ...

1. ... before the sentence the return of the ox is valid, and he is Patur from paying.

2. ... after the sentence it is not, and he is liable.

(c)Rabbi Yakov disagrees with the previous ruling. According to him, the Shomer is Patur in both cases.

(d)Assuming the basis of their Machlokes to be whether one can say to the owner of Isurei Hana'ah 'Harei she'Lecha Lefanecha', other practical ramifications of this Machlokes will be whether a Shomer may return someone's Chametz to him after Pesach, or whether he must replace it.

2)

(a)Rabah concludes that in fact, even the Tana Kama concedes that one can say to the owner of Isurei Hana'ah 'Harei she'Lecha Lefanecha'. Then what is the Tana Kama's reason for saying 'Hichziro Shomer l'Beis Ba'alav, Eino Muchzor? What makes this case worse than Chametz on Pesach?

(b)What does Rebbi Yakov hold? On what grounds does he argue with the Rabanan?

(c)How does Rabah know that this is the Rabanan's reason and not because they hold that one cannot say to the owner 'Harei she'Lecha Lefanecha'?

(d)And how do we know that Rabah's reason in the Rabanan is because the Shomer failed to return the owner's ox to him, thereby depriving him of the possibility of saving it (as the Lashon suggests)?

2)

(a)Rabah concludes that in fact, even the Tana Kama concedes that one can say to the owner of Isurei Hana'ah 'Harei she'Lecha Lefanecha', and the Tana Kama's reason for saying 'Hichziro Shomer l'Beis Ba'alav Eino Muchzor' is because, based on the fact that an ox cannot be sentenced in its absence, the owner can say to the Shomer 'You had no right to take my ox to Beis-Din, thereby causing it to be sentenced' (whereas in the case of Chametz after Pesach, the Shomer did not perform any act to deprive the owner of the opportunity of eating it before Pesach).

(b)Rebbi Yakov, on the other hand, holds that the ox can be sentenced even in its absence, in which case, the Shomer cannot be blamed for the sentence.

(c)Rabah knows that this is the Rabanan's reason and not because they hold that one cannot say to the owner 'Harei she'Lecha Lefanecha' because if that was the case, then they should have argued with Rebbi Yakov in the case of Chametz after Pesach.

(d)Neither can Rabah's reason in the Rabanan be because the Shomer failed to return the owner's ox to him, thereby depriving him of the possibility of saving it (as the Lashon suggests) because then, the same would apply to Chametz after Pesach (and why would the Rabanan then agree that he can say 'Harei she'Lecha Lefanecha'?). And besides, on what basis would Rebbi Yakov then argue with the Rabanan, seeing as even though the ox was sentenced in its absence, the Shomer should nevertheless be guilty for not returning the ox earlier.

3)

(a)Rebbi Yakov maintains that it is possible to conclude the Din of an ox even in its absence. How does he counter the Rabanan's proof from the principle 'ke'Misas ha'Be'alim, Kach Misas ha'Shor'.

(b)What do we learn from the Pasuk in Mas'ei "Ad Omdo Lifnei ha'Eidah la'Mishpat"?

3)

(a)Rebbi Yakov, who maintains that it is possible to conclude the Din of an ox even in its absence, counters the Rabanan's proof from the principle 'ke'Misas ha'Be'alim, Kach Misas ha'Shor' by pointing out that the logic behind the Din that one cannot sentence a person in his absence is, because this deprives him of the opportunity of defending himself, a reason that does not apply to an ox.

(b)We learn from the Pasuk "Ad Omdo Lifnei ha'Eidah la'Mishpat" that a person cannot be sentenced in abstentia.

4)

(a)We have learned in a Beraisa that the four Shomrim take the place of the owner. What will the difference then be whether the ox that they are guarding and that killed someone, is a Tam or a Mu'ad?

(b)What about the ox being stoned?

(c)Which of the four Shomrin does the Tana exempt from reimbursing the owner for the loss of his ox?

(d)We ask 'Mah Nafshach', if they guarded the ox, then they should all be Patur, and if they did not, they should all be liable. What do we answer?

4)

(a)We have learned in a Beraisa that the four Shomrim take the place of the owner. The difference whether the ox that they are guarding and that killed someone is a Tam or a Mu'ad will be that the former is Patur from Kofer, the latter, Chayav.

(b)Either way the ox is stoned.

(c)The only Shomer that the Tana exempts from reimbursing the owner for the loss of his ox is the Shomer Chinam.

(d)To answer the Kashya 'Mah Nafshach', if they guarded the ox, then they should all be Patur, and if they did not, they should all be liable we establish the Beraisa where they did indeed guard the ox, but only superficially. Such a Shemirah is sufficient with respect to a Shomer Chinam, but not with respect to the other Shomrim.

45b----------------------------------------45b

5)

(a)The Beraisa currently under discussion goes neither like Rebbi Meir nor like Rebbi Yehudah. Why can it not go like ...

1. ... Rebbi Meir? What does Rebbi Meir say about a Socher?

2. ... Rebbi Yehudah? What does Rebbi Yehudah say regarding the Shemirah of a Mu'ad?

(b)We initially establish the Beraisa like Rebbi Eliezer. How will he deal with both of the above problems?

(c)Abaye establishes the author as Rebbi Meir, and he answers the Kashya that we asked on him with the words 'ke'de'Machlif Rabah bar Avuhah'. What does Rabah bar Avuhah say? How does that answer the Kashya?

5)

(a)The Beraisa currently under discussion goes neither like Rebbi Meir nor like Rebbi Yehudah. It cannot go like ...

1. ... Rebbi Meir who says 'Socher k'Shomer Chinam, because the Tana ought then to have listed Socher together with Shomer Chinam as being Patur from reimbursing the owner for the loss of his ox.

2. ... Rebbi Yehudah who says that a superficial Shemirah will suffice for a Mu'ad, in which case the Shomrim ought to be Patur from paying for the damages of a Mu'ad ox, so why does the Tana declare them Chayav?

(b)We initially establish the Beraisa like Rebbi Eliezer who holds that a Mu'ad requires 'a knife', and no amount of Shemirah will suffice. And as far as a Socher is concerned, he will hold 'Socher k'Shomer Sachar', like Rebbi Yehudah.

(c)Abaye establishes the author as Rebbi Meir, and he answers the Kashya that we asked on him with the words 'ke'de'Machlif Rabah bar Avuhah' who switches the opinions of Rebbi Meir and Rebbi Yehudah. Consequently, the Tana is justified in listing exclusively the Shomer Chinam as being Patur from reimbursing the owner; and as far as a Mu'ad is concerned, he holds that a Mu'ad requires a proper Shemirah, and the Shomer who made a Shemirah Pechusah will be liable, as stated in the Beraisa.

6)

(a)Rebbi Elazar obligates a Shomer Chinam to pay, should the ox he is looking after cause damage. What does he say about paying the owner in the event that the ox is injured?

(b)What would the Din be if the Shomer Chinam ...

1. ... accepted full responsibility (in the case of a regular ox)?

2. ... did not accept the responsibility for damages?

(c)Rava establishes Rebbi Elazar's case when he did indeed accept responsibility. Then why is he Chayav for the one and Patur from the other?

6)

(a)Rebbi Elazar obligates a Shomer Chinam to pay should the ox he is looking after cause damage. In the event that the ox is injured however, he exempts him from paying.

(b)If the Shomer Chinam ...

1. ... accepted full responsibility (in the case of a regular ox) he would be Chayav in both cases.

2. ... did not accept the responsibility for damages he would be Patur in both cases.

(c)Rava establishes Rebbi Elazar's case when he did indeed accept responsibility, and the reason that he is Chayav for the one and Patur from the other is because he is also speaking when the Shomer realized initially that the ox was a 'Nagchan' (a goring ox). Consequently, we assume that when he undertook responsibility, he did so having in mind to keep the animal in check, but not to guard against others goring it (since that did not seem necessary).

7)

(a)Rebbi Meir in our Mishnah, obligates the owner to pay for damages done by one's ox after he tied it by its reigns or locked the door in front of it. Why is that?

(b)Rebbi Yehudah disagrees. What does he learn from the Pasuk "v'Lo Yishmerenu Be'alav" (written in connection with a Mu'ad)?

(c)Rebbi Eliezer is the most stringent of all. What does he say about a Mu'ad?

7)

(a)Rebbi Meir in our Mishnah, obligates the owner to pay for damages done by one's ox after he tied it by its reigns or locked the door in front of it because he is talking in a case of 'Shemirah Pechusah' (an inferior guarding), where the ox is able to break loose and where the door will not stand up to a regular wind.

(b)Rebbi Yehudah disagrees. He learns from the Pasuk "v'Lo Yishmerenu Be'alav" that, as far as a Mu'ad is concerned, even a minimal Shemirah will suffice.

(c)Rebbi Eliezer is the most stringent of all. In his opinion a Mu'ad must be disposed of ('Ein Lo Shemirah Ela b'Sakin').

8)

(a)Rebbi Meir and Rebbi Yehudah argue over the interpretation of the Pasuk "v'Lo Yishmerenu" (written in connection with au Mu'ad). Over which basic premise do they argue (that will determine their respective interpretations)?

(b)What does 'Stam Shevarim b'Chezkas Shimur Kaymi' mean?

(c)Based on the premise 'Stam Shevarim Lav b'Chezkas Shimur Kaymi', how does Rebbi Meir subsequently interpret "v'Lo Yishmerenu"?

(d)From where does Rebbi Meir then learn that a Tam requires a proper Shemirah?

8)

(a)Rebbi Meir and Rebbi Yehudah argue over the interpretation of the Pasuk "v'Lo Yishmerenu" (written in connection with a Mu'ad). The basic premise over which they argue (that will determines their respective interpretations) is whether 'Stam Shevarim b'Chezkas Shimur Kaymi' [Rebbi Yehudah]), or not (Rebbi Meir).

(b)'Stam Shevarim b'Chezkas Shimur Kaymi' means that an owner generally applies a minimal Shemirah to his ox (in which case, the Torah need not instruct him to do more than that).

(c)Based on the premise 'Stam Shevarim Lav b'Chezkas Shimur Kaymi', Rebbi Meir subsequently interprets "v'Lo Yishmerenu" to mean a proper Shemirah (seeing as it has already necessitated a Shemirah Pechusah by a Tam).

(d)Rebbi Meir learns that a Tam also requires a a proper Shemirah via a 'Gezeirah-Shavah' ('Negichah l'Tam, Negichah l'Mu'ad').

9)

(a)Assuming that 'Stam Shevarim b'Chezkas Shimur Kaymi', and that the Torah therefore obligates a proper Shemirah by a Tam, how does Rebbi Yehudah interpret "v'Lo Yishmerenu"?

(b)Why does he not Darshen the Gezeirah-Shavah ('Negichah l'Tam, Negichah l'Mu'ad'), like Rebbi Meir?

(c)Seeing as we need "v'Lo Yishmerenu" to teach us the initial Chiyuv by a Mu'ad, how can we now use the same word to teach us the 'Miy'ut'?

(d)The most lenient opinion of all is that of Rebbi Eliezer ben Yakov. On the presumption that he follows the basic Derashah of Rebbi Yehudah, from where does he learn that even a Tam requires only a Shemirah Pechusah?

9)

(a)Assuming that 'Stam Shevarim b'Chezkas Shimur Kaymi', and that the Torah therefore obligates a proper Shemirah by a Tam, Rebbi Yehudah interprets "v'Lo Yishmerenu" to mean another proper Shemirah. However, based on the principle that when we have two consecutive inclusions, the second one actually comes to exclude, he explains that the Torah is precluding a Mu'ad from a proper Shemirah.

(b)He does not Darshen the Gezeirah-Shavah ('Negichah l'Tam, Negichah l'Mu'ad'), like Rebbi Meir because "v'Lo Yishmerenu", precludes it, as we just explained.

(c)Despite the fact that we need "v'Lo Yishmerenu" to teach us the initial Chiyuv by a Mu'ad, we nevertheless Darshen the 'Miy'ut' because for the initial Derashah, it would have been sufficient to write "v'Lo Yishmor"; the extra "nu" teaches us the 'Miy'ut'.

(d)The most lenient opinion of all is that of Rebbi Eliezer ben Yakov. On the presumption that he follows the basic Derashah of Rebbi Yehudah, Rebbi Eliezer ben Yakov learns that even a Tam requires only a Shemirah Pechusah from the 'Gezeirah-Shavah' 'Negichah l'Tam, Negichah l'Mu'ad', only he compares the Tam to the Mu'ad (and not vice-versa, like Rebbi Meir).

10)

(a)Rav Ada bar Ahavah explains that even though Rebbi Yehudah exempts a Mu'ad from a proper Shemirah, the owner will nevertheless be liable to pay half. Why is that?

10)

(a)Rav Ada bar Ahavah explains that even though Rebbi Yehudah exempts a Mu'ad from a proper Shemirah, the owner will nevertheless be liable to pay half because he maintains that, according to Rebbi Yehudah, every Mu'ad retains a Tzad Tamus ('Tzad Tamus bi'Mekomah Omedes').

11)

(a)According to Rav, Ha'ada'ah on an ox's right horn does not cover its left one. How about the reverse case ?

(b)Why can Rav not be referring to the Din of how much the owner has to pay?

(c)Then to what is he referring?

(d)Why can Rav then not hold like ...

1. ... Rebbi Meir?

2. ... Rebbi Yehudah, according to Rav Ada bar Ahavah?

11)

(a)According to Rav, Ha'ada'ah on an ox's right horn does not cover its left one but Hada'ah on its left horn will cover its right one (because the right horn ox is stronger than its left one).

(b)Rav cannot be referring to the Din of how much the owner has to pay because if, as we have already learned, 'Mu'ad l'Adam Eino Mu'ad li'Beheimah' (and pays only Chatzi Nezek), it goes without saying that Mu'ad on the right horn still pays only Chatzi Nexek on the the left one.

(c)He must therefore be referring to Shemirah whether a Shemirah Pechusah will suffice on the same animal or not.

(d)Rav cannot hold like ...

1. ... Rebbi Meir because in his opinion, both a Tam and a Mu'ad require a proper Shemirah.

2. ... Rebbi Yehudah, according to Rav Ada bar Ahavah because, according to him, every Mu'ad contains a Tzad Tamus, and Rav could just as well have cited the right horn (to teach us that even a Mu'ad remains obligated to pay half).

12)

(a)Like whom must Rav therefore hold?

(b)What is he then coming to teach us?

12)

(a)Rav must therefore hold like Rebbi Yehudah, only not like Rav Ada bar Ahavah.

(b)In fact, he is coming to teach us that it is only from one horn to another that the Tzad Tamus remains, but not in the same horn (which is a total Mu'ad).

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