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BAVA KAMA 45

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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.

SUMMARY

If the owner of a Shor that killed a person sells the Shor or is Makdish it before the Gmar Din it is effective and if he slaughters the Shor the meat is permitted.
 
If it gored while it is in the possession of a Shomer and the Shomer returned the Shor to its owner prior to the Gmar Din he is Patur from paying for the Shor. (1)
 
If the owner of a Shor that killed a person sells the Shor or is Makdish it after the Gmar Din it is not effective and if he slaughters the Shor the meat is prohibited.
 
If it gored while it is in the possession of a Shomer and the Shomer returned the Shor to its owner after the Gmar Din he is Chayav to pay for the Shor according to the Rabanan, while R. Yakov argues.
 
The Rabanan hold that a Shor may only be judged in the presence of the Shor, while R. Yakov holds that the presence of the Shor is not necessary. (2)
 
Everyone agrees that if a Shomer returns Chametz to the owner after Pesach even though it is forbidden to derive benefit from it he is Patur. (3)
 
If a person gives his Shor to a Shomer and the Shor kills a person it is put to death; if it was a Tam it is Patur from Kofer and for a Mu'ad it is Chayav Kofer.
 
If the Shomer guarded the Shor with a good Shemirah and the Shor gores and is put to death the Shomer is Patur from paying the value of the Shor to the owner with the exception of a Sho'El.
 
If the Shomer guarded the Shor with a second-rate Shemirah and the Shor gores and is put to death the Shomer must pay the value of the Shor to the owner with the exception of a Shomer Chinam. (4)
 
R. Meir holds that a renter shares the Din of a Shomer Chinam, while Rebbi Yehudah holds that he shares the Din of a Shomer Sachar. (5)
 
If a Shor that is known to be aggressive is given to a Shomer Chinam to guard he is Chayav if it causes damage but if it is injured he is Patur. (6)
 
R. Meir holds that a second-rate Shemirah is not sufficient for any Shor. (7)
 
Rebbi Yehudah holds that a second-rate Shemirah is sufficient for a Mu'ad and not for a Tam and if he guards a Mu'ad with a second-rate Shemirah he pays only the Chatzi Nezek of a Tam. (8)
 
R. Eliezer holds that even if the owner of a Shor Mu'ad guards the Shor with a superior Shemirah he is Chayav.
 
R. Eliezer Ben Yakov holds that a second-rate Shemirah is sufficient for both a Tam and a Mu'ad.
 
A Shor that is a Mu'ad for its right horn is not a Mu'ad for its left horn.

A BIT MORE

1. Even though the Shor will be put to death he is Patur since he returned it prior to the Gmar Din.
 
2. According to the Rabanan since the presence of the Shor is needed for the Gmar Din if the Shomer returns the Shor after the Gmar Din he is Chayav because he is at fault for allowing the Shor to be brought to the Beis Din, while according to R. Yakov since the Gmar Din does not require the presence of the Shor if the Shor is returned after the Gmar Din the Shomer is Patur.
 
3. Even according to the Rabanan he is Patur since the prohibition of Chametz comes automatically and it was not as a result of an act on the part of the Shomer.
 
4. All Shomrim except for a Shomer Chinam are responsible to guard the animal with a good Shemirah and therefore if they did not do so and the Shor gores and it is put to death they are liable, but a Shomer Chinam is not responsible to guard the Shor with more than a second-rate Shemirah and therefore he is not liable.
 
5. Rabah Bar Avuha states in the Beraisa that the Machlokes is the opposite: Rebbi Yehudah holds that a renter shares the Din of a Shomer Chinam, while R. Meir holds that he shares the Din of a Shomer Sachar.
 
6. Since it is known to be an aggressive Shor we assume that he has taken upon himself to guard it so that it will not causes damage, but he never took upon himself to guard it from being injured because he never would have considered that it would be injured since it is so aggressive.
 
7. A door that could stand up to a regular wind, but not to an unusually strong wind is regarded as a second-rate Shemirah.
 
8. Rebbi Yehudah holds that a Mu'ad pays half mi'Gufo like a Tam and half from Aliyah like a Mu'ad and if a Shor Mu'ad is guarded with a second-rate Shemirah it pays the Chatzi Nezek of a Tam and it is Patur for the other Chatzi Nezek of a Mu'ad.

BRIEF INSIGHT

MU'AD FOR THE RIGHT HORN
 
A Shor that is a Mu'ad for its right horn is not a Mu'ad for its left horn. According to most Rishonim the same is true if it is a Mu'ad for the left horn that it is not a Mu'ad for its right horn. So too, if an animals is a Mu'ad for an Av it is not a Mu'ad for a Toldah and vice versa. If it is a Mu'ad for one Toldah it is not a Mu'ad for another Toldah. Therefore if the animal is a Mu'ad for goring it is not a Mu'ad for pushing and if it is a Mu'ad for pushing it is not a Mu'ad for biting. (Me'iri)

QUICK HALACHAH

SHEN AND REGEL
 
If an ox is tied with a rope and locked up properly and it went out and damaged, if it is a Tam it pays Chatzi Nezek and if it is a Mu'ad it is Patur. So too if [he guards it in this fashion] and the animals damages something with a Hezek that is a Mu'ad from the beginning such as [Shen or Regel], for example if it eats something that it usually eats, or breaks something with its leg while it walks it is Patur. If an animal is a Mu'ad for the right horn and it is not a Mu'ad for its left horn and the animal got out after it was guarded properly and it damages with either the right horn or the left horn it is Chayav Chatzi Nezek. (Rambam Hilchos Nizkei Mamon 7:1,2)

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