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|BAVA KAMA 90 (25 Av) - Dedicated by Mrs. G. Kornfeld for the Yahrzeit of her mother, Mrs. Gisela Turkel (Golda bas Chaim Yitzchak Ozer), on 25 Av. Mrs. Turkel was an exceptional woman with an iron will who loved and respected the study of Torah.|
Rava holds that Hekdesh, Chametz or Shichrur supersedes a Shibud. (1)
If someone sells his servant on condition that he may continue to use the servant for thirty days R. Meir says if the seller kills the servant within thirty days the Din of Yom or Yomayim applies to him, but if the buyer kills the servant the Din of Yom or Yomayim does not apply. (2)
R. Yehudah says that the Din of Yom or Yomayim applies to the buyer because a Kinyan Peiros is not like a Kinyan Guf.
R. Yosi holds that the Din of Yom or Yomayim applies to both the buyer and the seller because it is a Safek to him if a Kinyan Peiros is like a Kinyan Guf and since is a Safek Nefashos they are both Patur.
R. Elazar holds that the Din of Yom or Yomayim does not apply to either the buyer or the seller because the Pasuk states 'Kaspo' which implies that the Din of Yom or Yomayim only applies if the servant completely belongs to him.
Ameimar says even if the husband and a wife sell the Nichsei Melug of the wife together it is not a valid sale and if one of them dies the other may take the property back from the buyer. (3)
A half servant and half free person or a servant who belongs to two partners does not go free if his tooth or eye is knocked out according to R. Elazar. (4)
If someone hits his friend in the ear he pays a Sela for Boshes according to the Tana Kama while R. Yosi ha'Glili holds he pays a Manah Tzuri. (5)
If he slaps him in the face he pays 200 Zuz for Boshes and if he hits him with back of his hand he pays 400 Zuz.
If he pulls his ear or hair, spits at him, takes off his Talis, removes a woman's head covering he pays 400 Zuz for Boshes.
The Tana Kama states that that the amount that is paid for Boshes is dependent on the status of the victim, while R. Akiva holds that all victims are paid as if they are rich people who lost their money.
It is forbidden to wound oneself, however if a person wounds himself and subsequently someone else wounds him he is Chayav
It is forbidden to cut down one's own tree but if a person cuts down his tree and subsequently someone else cuts down his tree he is Chayav.
If the Sanhedrin saw someone commit a murder at night some of the judges may serve as witnesses while the others may serve as judges according to R. Elazar. (6)
R. Akiva holds that since the Sanhedrin witnessed the murder they are all regarded as witnesses and may not serve as judges.
If someone murders his friend with a rock and the rock gets lost and it is not brought to the Beis Din to evaluate if the rock is big enough to kill a person he is Patur according to Shimon ha'Teimani.
R. Akiva says that it is not necessary for the Beis Din to see the rock and it is sufficient that for the witnesses to see the rock and evaluate if it is big enough to kill.
If a Shor Ta'am kills a person and subsequently causes damage the Shor is judged for the death that it caused but the payment for the damage is not collected. (7)
If a Shor Mu'ad kills a person and subsequently causes damage first it is judged for the damage that it caused and than it is judged for killing the person.
If the Shor Mu'ad is judged first for killing the person it is no longer judged for the damages it caused. (8)
A BIT MORE
1. If someone makes an animal into an Aputiki for a Chov and he is Makdish it for the Mizbe'ach or he makes Chametz into an Aputiki and it was in his possession over Pesach or he made a servant into an Aputiki and he freed the servant the Hekdesh, Chametz or Shichrur overrides the Shibud and it is no longer Meshu'abad to the Chov.
2. If the owner of a servant kills the servant and the servant lives for at least 24 hours before he dies he is Patur from a Chiyuv Misah. R. Meir hold Kinyan Peiros is like a Kinyan Guf and therefore the Din of Yom or Yomayim applies to the seller who has a Kinyan Peiros for thirty days.
3. This is in accordance with R. Elazar who holds that when one person owns the Guf and the other owns the Peiros neither one of them has a Kinyan on the item and therefore they may not sell it.
4. Because the Pasuk states 'Avdo' which implies that the servant only goes free when the his tooth or eye is knocked out if it completely belongs to its owner.
5. A Manah Tzuri is 25 Sela'im which is 100 Zuz.
6. Since they witnessed the murder at night which is not a time for receiving testimony they must testify in front of a Beis Din the next day, however if they witnessed the murder during the day there is no need for them to testify and they immediately judge the case without any testimony.
7. The damages are not collected because a Shor Ta'am pays mi'Gufo and once it is put to death for killing a person it is not possible to collect the from the Guf.
8. If the Shor is put to death first the owner no longer has to pay damages according to Shimon ha'Teimani who holds that the Shor has to be evaluated if it is big enough to have caused the damage and once it is condemned to death we don't push off carrying out the sentence for the evaluation of Beis Din.
BOSHES AND TZAR
If a person slaps his friend in the face he pays 200 Zuz for Boshes and if he hits him with back of his hand he pays 400 Zuz. If he spits at him takes off his Talis removes a woman's head covering he pays 400 Zuz for Boshes. The Rambam states that all of the various humiliations mentioned in the Mishnah consist of embarrassment and pain without Nezek and therefore the Chachamim stated a fixed sum that must be paid. The fixed sum includes medical expenses and unemployment if applicable, but even if there is no medical expenses or unemployment the payments is the same. However, the Tur states in the name of the Rif that the fixed sum only includes Boshes and Tzar because it applies to most injuries, however it does not includes medical expenses and unemployment and if those payments applies they must be evaluated and paid separately. (Tosfos Yom Tov)
WITNESS AND JUDGE
A witness may mot be a judge, however only a witness who testifies may not be a judge for example if one of the witnesses testifies in front of his friend about an act that he witnessed he may not combine with the other judges to judge the case. But if he doesn't testify for example if they three judges witnessed the act even if they witnessed it with intention to testify if they saw it during the day they may judge the case without any other witnesses. But f they saw it at night they may not judge without hearing testimony from other witnesses. (Shulchan Aruch CM 7:5)
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