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BAVA KAMA 34

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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.

SUMMARY

If one Shor gores another Shor even if the injured Shor subsequently appreciated and is now worth more than it was worth before the Hezek the Mazik still has to pay. (1)
 
If one Shor gored another Shor and the damaged Shor depreciates between the time of the Hezek and the time of the Din the Mazik must pay the entire Nezek as it stands at the time he was taken to Din. (2)
 
If the Mazik fattens up his Shor Tam and it appreciates after it caused damage the Nizak does not receive a portion of the appreciation even according to R. Akiva.
 
If a Shor Tam depreciates or appreciates after it gored according to R. Akiva the portion of the Nizak also depreciated or appreciated. (3)
 
R. Meir holds that when a Shor Tam kills another Shor of the same value the Nizak receives half of the ox of the Mazik, while Rebbi Yehudah holds that the Nizak takes half of the ox of the Mazik and half of the Neveilah of the dead Shor.
 
R. Meir holds that if the Neveilah of the Shor that was killed appreciates before the Mazik is taken to Din it is completely the loss of the Nizak while Rebbi Yehudah holds that the loss is divided between the Nizak and the Mazik.
 
Rebbi Yehudah holds that if a person guards his Shor with an inferior Shemirah if it is a Tam he is Chayav and if it is a Mu'ad he is Patur.
 
If a Shor Tam gores a Shor and the Neveilah is worth more than the Shor that caused the damage the Mazik does not take half of the Neveilah according to Rebbi Yehudah.
 
If a Shor Tam gores a Shor and the Neveilah is worth more than the Shor was worth while it was still alive the Mazik does not take a portion of the Neveilah according to Rebbi Yehudah.
 
Even though Rebbi Yehudah holds that the Nizak takes half of the Shor of the Mazik he agrees that a Shor Tam never pays more than Chatzi Nezek.
 
If a Shor caused someone Boshes or knocked out the eye or tooth of a servant it is Patur, but a person is Chayav for Boshes and if he knocks out the tooth or eye of his servant he goes free.
 
If a person wounds his father or mother or burns a stack of grain on Shabbos he is Patur, but if his ox does it he is Chayav.
 
R. Avahu states that a person who does a Melachah on Shabbos in a destructive manner is Patur with the exception of causing a wound or lighting a fire.
 
R. Yochanan disagrees and he holds that a person is only Chayav for causing a wound if he needs the blood for his dog and he is only Chayav for lighting a fire if he needs the ashes.

A BIT MORE

1. Because the Nizak could claim that if the Shor had not been gored it would be worth even more.
 
2. Because the Nizak can says the horn of your ox remains buried in it and the depreciation is a result of the fact that it was gored.
 
3. R. Akiva holds that the Nizak is a partner in the Shor and therefore if the value of the Shor fluctuates the portion of the Nizak also fluctuates.

BRIEF INSIGHT

A FATTENED OX
 
If the Mazik fattens up his Shor Tam and it appreciates after it caused damage the Nizak does not receive a portion of the appreciation even according to R. Akiva. The Tur states that which the Nizak does not receive a portion of the appreciation is only if the appreciation is not more than the expenses. However, if the appreciation is more than the expenses the Nizak also receives a share since he is a partner in the ox. Therefore after the Mazik receives his expenses along with the value of the work he put in the rest of the appreciation is divided up equally between the Nizak and the Mazik.

QUICK HALACHAH

PROFITING FROM A DAMAGE
 
The Nizak suffers the loss of the depreciation of the Neveilah and the appreciation of the Neveilah is split between the Nizak and the Mazik. However, if the appreciation of the Neveilah is so much that if the Mazik takes half of the appreciation it will be more than the amount of the damage he may not take the appreciation because he has no right to profit from the damage. (Shulchan Aruch CM 403:2)

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