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BAVA KAMA 112 (25 Nisan) - Dedicated by Sandy and Les Wiesel in honor of the Yahrzeit of Les's father, Menachem Yehuda ben Rav Avigdor Yosef ha'Levy Wiesel z'l, who perished in the Holocaust, and in memory of his uncle, Harav Rav Avraham Yeshaya ben Rav Avigdor Yosef ha'Levy Wiesel z'l, whose Yahrzeit is 10 Nisan.
If someone lent money with interest and his sons inherited the interest payment they are Patur from paying it back even though they are aware of the source of the money.
Rami Bar Chama says that if a Gazlan dies after Yi'ush and his son inherits the stolen object he is Koneh with Yi'ush and Shinuy Reshus (change of ownership).
Rava says that only a purchase is a Shinuy Reshus but an inheritance is not a Shinuy Reshus.
If someone steals and feeds it to his sons the sons are Patur from paying, if the sons inherit the stolen object if they are Gedolim they are Chayav to pay. (1)
Sumchus holds that if the sons are Ketanim they are Patur from paying while the Chachamim hold that even Ketanim are Chayav to pay if the stolen object is still in existence.
If the sons claim that they their father paid for the stolen object and no longer owes any money they are Patur.
If someone borrows a cow and he dies the sons may use the cow for the duration of the term and if it dies b'Ones they are Patur.
If the sons erroneously thought that the cow belonged to their father and they Shechted it they only must pay 2/3 of the cost of the meat. (2)
If their father left them Karka in their inheritance they must pay for the full cost of the meat. (3)
If someone stole a cow on Erev Shabbos and Shechted it on Shabbos he is Chayav five payments. (4)
If someone borrowed a cow and Shechted it on Shabbos he is Patur from paying for the cow according to R. Papa. (5)
If a Katan instructs his servant to take over someone's property we take it away from him immediately and when if he has witnesses that it belongs to him he may bring them when he becomes a Gadol.
A Beis Din may not receive testimony if the Ba'al Din is not present unless the Ba'al Din was ill or the witnesses were ill or were about to travel and they notified him and he didn't come.
If the Beis Din started and they notified the Ba'al Din and he didn't come they may receive testimony without his presence.
Shmuel holds that a Beis Din may authenticate the signatures on a Shtar without the presence of the Ba'al Din, while R. Yochanan argues.
If the Ba'al Din asks for time to find witnesses who will disprove the Shtar we give him time and if he doesn't come we give him Monday, Thursday and Monday and if he still doesn't come he is excommunicated.
After he is excommunicated he is given 90 days to pay and if he doesn't pay by the end of 90 days a Shtar Adrachta (a Shtar that allows him to take the property of his Ba'al Din) is given to him.
If the Ba'al Din says he will not come to Beis Din or if the Din is with regards to a Pikadon a Shtar Adrachta is given immediately.
A Shtar Adrachta only allows him to collect Karka not Metaltelin because of the concern that if the Ba'al Din ends up finding witnesses who testify that he is not Chayav the Metaltelin will already be gone and he will not be able to collect.
The Ba'al Din is notified when a Shtar Adrachta is written if he is close enough to the Beis Din that if the Shali'ach of Beis Din is sent on Tuesday and the Ba'al Din could arrive in Beis Din by Thursday.
A Shali'ach Beis Din is believed like two witnesses if he testifies that the Ba'al Din refuses to come to Beis Din and we excommunicate the Ba'al Din. (6)
A BIT MORE
1. According to Rami Bar Chama who holds that inheritors are Koneh with Shinuy Reshus in this case the owner had not yet been Meya'esh and therefore they are Chayav to pay
2. They don't have to pay for the full cost of the meat because if they had known that it doesn't belong to their father they would not have Shechted it
3. According to some opinions if their father left them Karka and the cow dies b'Ones they must pay for the cow, however R. Papa holds that even if the father left them Karka they are Patur from paying because the Chiyuv that a Sho'el has to pay for an Ones only starts from the time of the Ones and since there was no Chiyuv during the lifetime of their father his property is not Meshubad to the Chov.
4. Even though the Ganav is Chayav Misah for Shechting the cow on Shabbos he is not Patur from the five payments because he was Chayav Kefel for the Geneivah before he Shechted it and even though the Chiyuv of five payments is only at the time of the Shechitah however since it is a Knas he is not Patur with Kim Lay bede'Rabah Minei.
5. R. Papa holds that a Sho'el is not Koneh the animal at the time that he borrowed it and therefore the Chiyuv to pay is only at the time that he Shechted it and since he Shechted it on Shabbos he is Patur because of Kim Lay bede'Rabah Minei.
6. However a Shtar Shamta is not written because on the basis of the testimony of the Ba'al Din because we do not release the person from his excommunication until he pays for the expense of the scribe and we do not believe one witness when it comes to taking money from a person.
GENEIVAH AND AVEIDAH
If someone borrows a cow and he dies the son may use the cow for the duration of the term and if it dies b'Ones they are Patur. However, if it is stolen or lost they are Chayav because since they benefited from the animal they have the status of a Shomer Sachar and they are Chayav for Geneivah and Aveidah. Even if the sons did not use the animal they are Chayav for Geneivah and Aveidah that which they had the right to use the animal is considered a benefit.(Nimukei Yosef)
THE PRESENCE OF THE BA'AL DIN
It is forbidden for the Beis Din to receive testimony unless the Ba'al Din is present and if the testimony is received the Beis Din may not judged on the bases of the testimony. If the Ba'al Din or the witnesses were ill they may receive testimony without his presence. If the witnesses wanted to travel overseas and they notified the Ba'al Din and he did not show up or he was not in town they may receive testimony without his presence. (Shulchan Aruch CM 28:16)
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