PAST DEDICATION
BAVA KAMA 46 - Dedicated by Elliot and Lori Linzer for the safety of Tzahal.

1)

(a)Rebbi Eliezer says '(Mu'ad) Ein Lo Shemirah Ela Sakin'. How does Rabah initially learn this from "v'Lo Yishmerenu"?

(b)On what grounds does Abaye refute Rabah's explanation?

(c)How do we know that "v'Lo Yechasenu" does not mean that a pit is not subject to covering (but must be filled in)?

(d)Then how does Abaye finally explain Rebbi Eliezer? Which ...

1. ... Tana serves as the basis for Rebbi Eliezer's Din?

2. ... Pasuk does he learn it from ?

1)

(a)Rebbi Eliezer says '(Mu'ad) Ein Lo Shemirah Ela Sakin'. Initially, Rabah learns this from "v'Lo Yishmerenu", which he interprets to mean - that a Mu'ad is not subject to Shemirah, but must be killed.

(b)Abaye refutes Rabah's explanation however, based on the Pasuk - "v'Lo Yechasenu", which, by the same token, ought then to mean that a pit is not subject to covering (but must be filled in). ...

(c)... which we know to be incorrect - from the Mishnah in the next Perek, which specifically exonerates a person who covered his pit properly from having to pay damages.

(d)Abaye finally learns Rebbi Eliezer's Din from ...

1. ... Rebbi Nasan (whom we quoted in the first Perek) - who forbids in a Beraisa rearing a dangerous dog or placing a rickety ladder in one's home.

2. ... the Pasuk in Ki Setzei "v'Lo Sasim Damim b'Veisecha".

HADRAN ALACH SHOR SHE'NAGACH ES HA'PARAH

PEREK SHOR SHE'NAGACH ES HA'PARAH

2)

(a)Our Mishnah discusses a Tam that gored a cow and a dead fetus is subsequently found beside it. It is obvious why the owner of the ox pays Chatzi Nezek for the cow. But why does he pay a quarter of the damage for the fetus?

(b)What is the Tana referring to, when he adds that the same applies to the reverse case, where a cow gored an ox and a born calf is subsequently found beside the cow? What is the ..

1. ... Safek?

2. ... Din?

(c)Rav Yehudah Amar Shmuel establishes our Mishnah like Sumchus. What does Sumchus say?

(d)What would the Chachamim rule in the same case?

2)

(a)Our Mishnah discusses a Tam that gored a cow and a dead fetus is subsequently found beside it. It is obvious why the owner of the ox pays Chatzi Nezek for the cow. And he pays a quarter of the damage for the fetus - because since we are in doubt as to whether the ox gored and killed the fetus or whether it died before the goring, we rule 'Cholkin'.

(b)When the Tana adds that the same applies to the reverse case, where a cow gored an ox and a born calf is subsequently found beside the cow. The ...

1. ... Safek is - whether the calf shared in the damage, and whether the Nizak is therefore entitled to claim from its body or not (as will be explained later in the Sugya).

2. ... Din is - that the Nizak claims half the damage from the cow and a quarter from the calf.

(c)Rav Yehudah Amar Shmuel establishes our Mishnah like Sumchus, who says - 'Mamon ha'Mutal b'Safek, Cholkin'.

(d)The Chachamim rule in the same case - 'Zeh Klal Gadol, ha'Motzi me'Chaveiro Alav ha'Re'ayah'.

3)

(a)There are two reasons why the Chachamim added 'Zeh Klal', one of them simply expands the case in our Mishnah. What does this mean?

(b)Alternatively, 'Zeh ha'Klal' comes to include another case. Which other case? What makes the buyer there a 'Motzi me'Chaveiro'?

(c)What does Rav say in this latter case?

(d)We ask why the purpose of sale is not evident from ...

1. ... Shimon's trade (whether he is a butcher who normally sells meat to eat, or a farmer who normally sells live animals), . What do we answer?

2. ... the price that he paid, bearing in mind that an animal that is used for meat is generally worth far less than one that is used for plowing?

3)

(a)There are two reasons why the Chachamim added 'Zeh Klal Gadol'; one of them simply extends the case in our Mishnah - to teach us that 'ha'Motzi me'Chaveiro ... ' applies even if the Nizak is Bari (certain), and the Mazik is Shema.

(b)Alternatively, 'Zeh ha'Klal' comes to include a case - where Reuven sells Shimon an ox (which Shimon wants for plowing, but) which turns out to be a Nagchan (forcing him to slaughter it). Shimon wants his money back (and the fact that he has already paid renders him 'Motzi me'Chaveiro'), in keeping with the majority of people, who sell animals for plowing rather than for the meat.

(c)According to Rav - we go after the majority, who sell animals for plowing, and the buyer is entitled to claim his money back.

(d)To answer why the purpose of sale is not evident from ...

1. ... Shimon's trade (whether he is a butcher who normally sells meat to eat, or a farmer who normally sells live animals, we answer - that Shmuel is speaking when Shimon trades both as a farmer and as a butcher.

2. ... the price that Reuven paid (after all, an animal that is used for meat is generally worth far less than one that is used for plowing), we answer - that we are speaking in a case where for some reason, the price of meat was exorbitant, and matched the price of animals for plowing.

46b----------------------------------------46b

4)

(a)We query the very case, based on the adage 'mi'Mari Rashvasach Pari Afra'? What does it mean?

(b)In that case, what is Shimon claiming? Why can he not simply keep the ox in lieu of payment?

(c)On which fact is the Machlokes between Rav and Shmuel based?

(d)What is their actual Machlokes?

4)

(a)We query the very case, based on the adage 'mi'Mari Rashvasach Pari Afra', which means - 'If the debtor has no money with which to pay, accept from him whatever he has to offer (i.e. all his property is Meshubad to the creditor), even oats'.

(b)The reason that Shimon is claiming from Reuven here is - because we are speaking where Reuven has money, and Shimon wants specifically money, not the ox (rightfully so, according to Rav). Otherwise, he would simply retain the ox, as we just explained.

(c)The Machlokes between Rav and Shmuel is based on the fact that most people purchase oxen for plowing.

(d)And they are arguing over - whether the Din of 'Holchin Achar ha'Rov' (going after the majority) holds even against a Chezkas Mamon (Rav) or whether the Chezkas Mamon overrides the Din of Rov (Shmuel [see above Daf 27b]).

5)

(a)We cited Rav Yehudah Amar Shmuel, who established our Mishnah like Sumchus, but that the Chachamim apply the principle 'ha'Motzi me'Chaveiro Alav ha'Re'ayah'. How do we know for sure that Shmuel's statement is correct?

5)

(a)We cited Rav Yehudah Amar Shmuel, who established our Mishnah like Sumchus learned earlier, but that according to the Chachamim 'ha'Motzi me'Chaveiro Alav ha'Re'ayah'. We know for certain that Shmuel's statement is correct - because it has the support of a Beraisa.

6)

(a)How does Rebbi Shmuel bar Nachmani extrapolate the principle 'ha'Motzi me'Chaveiro, Alav ha'Re'ayah' from the Pasuk "Mi Ba'al Devarim Yigash Aleihem"?

(b)On what grounds does Rav Ashi reject the need for Rebbi Shmuel bar Nachmani's Derashah?

(c)So he uses the Pasuk for the Din of Rav Nachman Amar Rabah bar Avuha, 'she'Ein Nizkakin Ela l'Tove'a Techilah'. What does this mean?

(d)There are two cases in which Beis-Din will break this rule and give Shimon's claim precedence. One of them, if for example, there are merchants who are keen to purchase the security that Reuven purportedly seized, and who will have left town by tomorrow. What is the other?

6)

(a)Rebbi Shmuel bar Nachmani extrapolates the principle 'ha'Motzi me'Chaveiro, Alav ha'Re'ayah' from the Pasuk "Mi Ba'al Devarim Yigash Aleihem" - by Darshening the word "Yigash" as if the Torah had written "Yagish" (meaning that the claimant must bring his proof to the Dayanim).

(b)Rav Ashi rejects the need for Rebbi Shmuel bar Nachmani's Derashah - because it is a 'Sevara' ('Just as one only goes to the doctor when it hurts, so too, can one only open a case when there is proof'), which needs no Pasuk to support it.

(c)So he uses the Pasuk for the Din of Rav Nachman Amar Rabah bar Avuha, 'she'Ein Nizkakin Ela l'Tove'a Techilah' - meaning that if Reuven claims a Manah from Shimon, and Shimon counters that Reuven already seized a security against the loan, Beis-Din will first settle Reuven's claim and only then will they deal with that of Shimon.

(d)There are two cases in which Beis-Din will break this rule and give Shimon's claim precedence. One of them, if for example, there are merchants who are keen to purchase the security that Reuven purportedly seized, and who will have left town by tomorrow. The other - where, the fact that Shimon is under pressure to obtain money, causes his property to devalue, and, by enabling him to retrieve his security, he will be free to sell his fields at their market price.

7)

(a)We learned in the Seifa of our Mishnah that in a case where Reuven's cow gored Shimon's ox and a born calf is subsequently found beside it (the cow), the Nizak may claim half the damage from the cow and a quarter from the calf. What is the problem with this ruling?

(b)How does Abaye resolve it?

7)

(a)We learned in the Seifa of our Mishnah that in a case where Reuven's cow gored Shimon's ox and a born calf is subsequently found beside the cow, Shimon may claim half the damage from the cow and a quarter from the calf. The problem with this ruling is - that a Tam only pays Chatzi Nezek, so why is Reuven obligated to pay three quarters in this case.

(b)Abaye resolves this problem - by interpreting a half to mean (half of the claim on the cow, which is really) a quarter, and likewise a quarter to mean (a quarter of the claim on the calf, which is really) an eighth.

8)

(a)According to Abaye's interpretation of the case, why can Shimon not demand Chatzi Nezek from Reuven 'mi'Mah Nafshach', seeing as it was either his cow alone that did the damage or his cow together with the calf?

(b)In the first Lashon, we establish the Mishnah where Shimon claimed from Levi first, but not if he claimed first from Shimon. Why is that?

(c)What does the second Lashon hold?

8)

(a)According to Abaye's interpretation of the case, Shimon cannot demand Chatzi Nezek from the Mazik 'mi'Mah Nafshach' (in spite of the fact that it was either his cow alone that did the damage or his cow together with the calf) - because the Tana is speaking in a case where the calf belonged to someone else.

(b)In the first Lashon, we establish the Mishnah where Shimon claimed from Levi first - in which case he could say to him that since his cow definitely caused the damage, the onus was on him to prove that he had a partner (and he would be permitted to take the full Chatzi Nezek from the cow).

(c)The second Lashon holds - that either way, Reuven can push him off and counter that, as far as he is concerned, the cow had a Chezkas Me'uberes (Tosfos DH 'Meida'), and the calf was therefore a partner in the goring, allowing Shimon to claim only a quarter of the damages from the body of the cow, as we explained.

9)

(a)What objection does Rava raise on Abaye's explanation?

(b)Then how does Rava re-establish our Mishnah?

(c)And how does he explain the half and the quarter?

9)

(a)Rava objects to Abaye's explanation however, on the grounds - that the Tana says a half and a quarter respectively, and not a quarter and an eighth.

(b)Rava therefore re-establishes our Mishnah - where the cow and the calf belong to the same owner.

(c)And as for the half and the quarter - the Tana does not mean a half and a quarter, but a half or a quarter. Should the cow be available, then the Nizak may claim half the damages from its body; but should it not, then he may only claim a quarter from the body of the calf, and no more.

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