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BAVA KAMA 46

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

SUMMARY

R. Elazar holds that the only proper way to guard a Shor Mu'ad is to kill it. (1)
 
If a person covers up his Bor properly and an ox or donkey fall in he is Patur.
 
R. Nasan says that a person may not keep a bad dog or a bad ladder in his possession. (2)
 
If a Shor gores a cow and a dead baby cow is found next to it and we don't know if it gave birth prior to or after it was gored it pays Chatzi Nezek for the cow and a quarter Nezek for the baby. (3)
 
Sumchus holds that Mamon that is a Safek is divided while the Chachamim hold ha'Motzi me'Chaveiro Alav ha'Re'ayah.
 
Even if the Nizak is certain that his property was damaged and the Mazik is uncertain the Chachamim hold ha'Motzi me'Chaveiro Alav ha'Re'ayah.
 
If someone sells a Shor and it turns out to be a Shor that gores, according to Rav it is a Mekach Ta'us because the majority of people buy a Shor for plowing, not for Shechitah.
 
Shmuel holds the seller can claim he sold it for Shechitah and it is not a Mekach Ta'us because with respect to Mamon we don't follow the majority. (4)
 
If a person has money he must pay his Ba'al Chov with money, but if not he may pay with anything of value.
 
If someone makes a claim on his friend and the defendant makes a counterclaim the Beis Din deals with the original claim first. (5)
 
If a cow gores a Shor and a dead baby cow is found next to it and we don't know if it gave birth prior to or after the Nezek, it pays a quarter Nezek from the cow and one eighth Nezek from the baby if they are owned by different people. (6)
 
If the cow and the baby are owned by the same person the Mazik must pay a complete Chatzi Nezek.
 
If the cow and the baby are owned by two different people, if he collects from the owner of the cow first according to the first Lashon of the Gemara he must pay a complete Chatzi Nezek.

A BIT MORE

1. Therefore even if the Shor is guarded well and it escapes and it gores and causes damage the owner is Chayav.
 
2. For that reason R. Elazar holds that a person may not keep a Shor Mu'ad in his possession and if he does keep it he must pay if it gores even if he guarded it well.
 
3. This is the opinion of Sumchus, however according to the Rabanan he is Patur completely for the baby because ha'Motzi me'Chaveiro Alav ha'Re'ayah.
 
4. However if the buyer buys oxen only for plowing, or if the price for oxen that are used for plowing is more expensive and he paid the higher price it is a Mekach Ta'us even according to Shmuel.
 
5. Sometimes the Beis Din deals with the counterclaim first, such as in a case that his property depreciated as a result of the claim and if we deal with the counterclaim first he will not have to sell his property in order to pay off the claim.
 
6. This is the opinion of Abaye who holds that the cow and the baby are considered partners in the Hezek and therefore the cow pays half of Chatzi Nezek and the baby which is a Safek pays only a half of half of Chatzi Nezek according to Sumchus who holds that Mamon which is a Safek is split.

BRIEF INSIGHT

A BAD DOG
 
R. Elazar holds that a person may not keep a Shor Mu'ad in his possession because he holds like. R. Nasan who says that a person may not keep a bad dog or a bad ladder in his house. Tosfos asks that according to R. Elazar why is a person Patur if he covers his Bor. Just as a person may not keep a Shor Mu'ad in his possession even though it is guarded he also should not be allowed to keep a Bor in his possession even though it is covered. Tosfos answers that although the Gemara originally understood that the opinion of R. Elazar is that even though the Shor Mu'ad is guarded he is Chayav, however the Gemara in conclusion holds that even though it is forbidden for him to keep the Shor in his possession, however if it gores he is Patur. Consequently, the Din of a Bor is the same as the Din of a Shor Mu'ad and it is forbidden to keep a Bor in his possession even if it is covered however if an animal falls into the Bor he is Patur.

QUICK HALACHAH

A MEKACH TA'US
 
If someone sells a Shor to his friend and it turns out to be a Shor that gores if it is impossible to prove if it was sold for plowing or for Shechitah, for example he is a person that buys oxen for both plowing and for Shechitah and no proof can be brought from the price because meat went up in price and it costs the same as a Shor that is used for plowing it is not a Mekach Ta'us because the seller can claim that he sold it for plowing and we don't follow the majority to be Motzi the Mamon from the seller. (Shulchan Aruch CM 232:23)

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