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BAVA KAMA 35

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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

A person who causes embarrassment is Chayav for Boshes, but a Shor that causes embarrassment is Patur for Boshes.
 
If a person intends to cause damage he is Chayav for Boshes even though he did not intend to cause embarrassment.
 
If a person injures an animal he is Chayav no matter how he caused the injury even if he is Shogeg or it was unintentional.
 
According to Tana D'Vei Chizkiyah if a person commits a murder he is Patur from any payment that was incurred at the same time even if the person is not put to death for the murder. (1)
 
If a Shor Tam is running after another ox and the ox was damaged, the Nizak claims that the Shor caused the damage and the Mazik claims that it was injured on a rock he is Patur. (2)
 
If two oxen are running after another ox and it was damaged and we don't know which ox caused the damage they are both Patur. (3)
 
If two oxen are running after another ox and one ox was bigger than the other or one ox was a Tam and the other one was a Mu'ad and we don't know which ox caused the damage because ha'Motzi me'Chaveiro Alav ha'Re'ayah. (4)
 
If two oxen are running after another two animals that are two different sizes and one of the oxen that caused the damage was bigger than the other or one was a Tam and one was a Mu'ad and we don't know which ox gored which one of the animals, ha'Motzi me'Chaveiro Alav ha'Re'ayah. (5)
 
Sumchus holds that when there is a Safek regarding a Chiyuv money the payment is split even if they both make a definitive claim.
 
Rabah Bar Nasan says that if someone claims that his friend owes him wheat and his friend admits that he owes him barley he is Patur from paying anything.

A BIT MORE

1. Even though the person is not put to death, such as he was Shogeg or it was unintentional, he is still Patur because if it was done b'Mezid he would be Chayav Misah.
 
2. Because ha'Motzi me'Chaveiro Alav ha'Re'ayah therefore the Nizak must prove that the ox caused the damage.
 
3. However if both oxen belonged to the same person he is Chayav.
 
4. Therefore he only pays the amount of the value of the smaller Shor.
 
5. Therefore the Mazik only has to pay Chatzi Nezek for the bigger animal that was damaged for the amount of the value of the smaller ox, and if the smaller ox does not equal the Chatzi Nezek of the bigger animal he is Patur for the remainder.

BRIEF INSIGHT

HURT BY A ROCK
 
If a Shor Tam is running after another ox and the ox was damaged, the Nizak claims that the Shor caused the damage and the Mazik claims that it was injured on a rock he is Patur. Even if the ox was damaged from the rock as a result of running away from the attacking Shor it is Patur because it is only a Gerama and a Shor is Patur for Gerama. (Sma)

QUICK HALACHAH

A SHEVU'AS HESES
 
If a Shor Tam is running after another ox and the ox was damaged, the Nizak claims that the Shor caused the damage and the Mazik claims that it was injured on a rock, ha'Motzi me'Chaveiro Alav ha'Re'ayah. Even if the Nizak claims he is certain and the Mazik is not certain he is Patur. If the Nizak claims that the Mazik knows that his ox caused the damage, the Mazik must swear a Shevu'as Heses that he does not know. However, he only has to swear if the Shor is a Mu'ad, but if the Shor is a Tam he is Patur from a Shevu'ah because if he was Modeh he would be Patur because it is a Kenas. (Shulchan Aruch CM 400:1)

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