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Bava Kama 41

BAVA KAMA 41 - Sponsored by the generous contributions of an anonymous donor in Manchester, England. May he be blessed with a Kesivah va'Chasimah Tovah, and a year of physical and spiritual growth and prosperity.



(a) The Tana of our Mishnah discusses Kofer. A Tam that kills a person ...
1. ... is not Chayav to pay Kofer.
2. ... is nevertheless Chayav Miysah.
(b) The ox is Chayav Miysah - irrespective of whether the ox killed a grown-up who is Chayav to keep the Mitzvos or a Katan, who is not.

(c) If an ox kills a person worth ...

1. ... a hundred Manah - he must pay thirty Shekalim.
2. ... one Dinar - he must pay thirty Shekalim, too.
(a) We ask how an animal can ever be a Mu'ah le'Adam, seeing as it must be put to death after the first killing. Rav Ashi objects to Rabah's answer that it is possible when the animal chased three people and Beis-Din assessed that it would have killed them had it caught them - on the grounds that, in terms of warning (to becomes a Mu'ad) such an assessment is meaningless, until the animal actually kills.

(b) Rav Ashi himself answers 'K'gon she'Siken li'Sheloshah B'nei Adam', by which he means that the ox gored three people on three consecutive days, though they only died later on the same day, at which point the ox becomes both Chayav Miysah and a Mu'ad simultaneously.

(c) We reject the answer of Rav Z'vid (that it becomes a Mu'ad by killing three animals) on the grounds that a Mu'ad for animals is not a Mu'ad for people, as we learned above. And we reject the answer of ...

1. ... Rav Shimi (that it first killed three Nochrim) - on the grounds that a Mu'ad le'Nochrim is not a Mu'ad le'Yisre'elim either.
2. ... Resh Lakish (that it first killed three T'reifos) - that, by the same token, a Mu'ad le'T'reifos is not a Mu'ad for healthy people.
(d) Rav Papa establishes a Mu'ad le'Adam when it is simply not physically possible to kill it - because immediately after the warning, it ran away (three times), before it could be put to death.
(a) Rav Acha B'rei de'Rav Ika answers that the Zomemei Zomemin themselves became Zomemin - meaning that after each of the first two (or three) pairs of witnesses testified, another pair rendered them Zomemin. Then, after the third (or fourth) pair testified, that pair came again to render the final pair Zomemin too, only this time, another pair came and rendered *them* Zomemin on all their testimonies. Consequently, the ox becomes a Mu'ad in one moment, since now all the previous testimonies take effect retroactively.

(b) This is only clear-cut however, according to those who only require the Mazik ox to be warned, but according to those who require the owner to be warned, there is a problem - namely, that if it is the owner who needs to be warned, he requires not only three days, but three separate warnings on three separate days (and he only had one set of three warniings on one day.

(c) We establish that the final witnesses added that the owner was standing by his herd each time his ox gored and witnessed the goring.

(a) According to Ravina, it is possible to find a Mu'ad le'Adam in a case where the witnesses were able to identify the owner's herd, but not the individual ox. The owner is then Chayav - to keep watch over his entire herd, as if they were all goring oxen.

(b) One specific animal become Mu'ad - when after the third (or the fourth) goring, the witnesses recognized the ox retroactively, rendering it a Mu'ad.

(a) The Tana learn from the Pasuk ...
1. ... "ve'Lo Ye'achel es Besaro" - that, if an ox that killed a person, and that ought to be stoned, was Shechted, its flesh may not be eaten.
2. ... "u'Ba'al ha'Shor Naki" - that one may also not derive any benefit from it.
(b) ben Zoma explains the word "Naki" to mean - like a person says to his friend 'So and so went free from his property, and he got nothing out of them.'

(c) The Tana declines to explain the Pasuk literally - because we do not need a Pasuk to teach us that a stoned ox may not be eaten.

(a) Rebbi Avuhu Amar Rebbi Elazar interpret "Lo Ye'achel", "Lo Sochal" and "Lo Sochlu" wherever they occur to mean - that they are not only forbidden to eat, but also, be'Hana'ah (to derive any benefit from them).

(b) He extrapolates this from the Pasuk "la'Ger Asher bi'She'arecha Titnenah va'Achalah" - implying that, if not for the special Pasuk permitting it, it would be forbidden to to benefit from a Neveilah in this way. And this in turn teaches us that "Achilah" (Lo Sochlu Kol Neveilah") incorporates Hana'ah.

(c) Nevertheless, the Tana declines to establish "ve'Lo Ye'achel es Besaro" with regard to a prohibition forbidding Hana'ah from an ox that was stoned (but permitting it if it is Shechted) - because Rebbi Avahu was referring to adding Hana'ah to the basic La'av of eating, but not that it "Lo Sochal" should be confined to Hana'ah.

(d) We know to split Rebi Avuhu's Din in this way - because otherwise, the Torah ought to have written "Lo Yehaneh". But why should it write "Lo Sochal", and mean Hana'ah?

(a) Alternatively, we might learn it from "Lo Ye'achel *es Besaro*" - wjich is superfluous, and which implies that, even though he made the flesh like meat (which refers to Shechitah), it is nevertheless forbidden.

(b) We suggest that "ve'Lo Ye'achel es Besaro" might pertain specifically to where the animal was Shechted with a sharp piece of rock, but not to where it was Shechted with a knife - since the former is similar to stoning, whereas the pater is not.

(c) We refute this on the basis of a Mishnah in Chulin - which validates the Shechitah of someone who Shechts with a scythe, a sharp piece of rock or a a reed.

(d) We have proved with this Mishnah - that Shechitah with a sharp piece of rock is called Shechitah. Consequently it would be illogical to distinguish between a Shor ha'Niskal that one Shechted with a sharp rock and one that one Shechted with a knife.




(a) Having concluded that we learn both the prohibition to eat a 'Shor ha'Niskal' that was Shechted and to derive benefit from it, from "ve'Lo Ye'achel es Besaro", we learn from "u'Ba'al ha'Shor Naki" - to include Hana'as Oro (the prohibition of deriving benefit from the animal's skin).

(b) We will shortly discuss the opinions of other Tana'im who learn other things from "u'Ba'al ha'Shor Naki". They learn Hana'as Oro - from the word "es" in "es Besaro".

(c) Our Tana is Shimon ha'Amsuni or Nechemyah ha'Amsuni, who does not Darshen the word "es" wherever it appears in the Torah. He retracted from all the 'esin' that he had Darshened up to that point - when he arrived at "es Hashem Elokecha Tiyra", since there was no creature on earth whose awe can compare with that of Hashem.

(d) When they asked him what he would do with the numerous D'rashos he had made up to that point - he replied that just as he would receive reward for those D'rashos, so too would he receive reward for retracting from them.

(a) The Tana who argues with Shimon ha'Amsuni - is Rebbi Akiva.

(b) He learns from the "es" in "es Hashem Elokecha Tiyra" - 'Le'rabos Talmidei-Chachamim'.

(a) When Rebbi Eliezer in a Beraisa learns from "u'Ba'al ha'Shor Naki", 'Naki me'Chatzi Kofer', he is referring to - a Tam that killed a person.

(b) Rebbi Akiva objects to Rebbi Eliezer's D'rashah on the grounds - that - seeing as the payment of damages performed by a Tam are confined to the body of the ox, and an ox that killed someone must be put to death and is Asur be'Hana'ah, why do we need a Pasuk to exempt a Tam from Chatzi Kofer?

(c) Rebbi Eliezer counters this objection - by establishing the case when only one witness saw the ox killing, or even when the owner himself saw it, in which case the ox is not put to death (see Tosfos DH 'Al Pi').

(d) We establish the case when the owner admitted to his ox having gored the person, despite the fact that normally due to the principle 'Modeh bi'K'nas Patur', he would be exempt from paying - because Rebbi Eliezer holds that Kofer (even in the case of a Tam) is a Kaparah and not a K'nas.

(a) An animal that meant to kill another animal, but inadvertently killed a person, or that meant to kill a Nochri and inadvertently killed a Yisrael - is not put to death.

(b) The third case mentioned by Rebbi Eliezer in the Beraisa is - an animal that meant to kill a Nefel (an eighth month baby that would have died anyway within thirty days) but inadvertently killed a healthy child.

(c) We quote this Beraisa - as an alternative to Rebbi Eliezer's previous answer. Here, he uses these cases to counter Rebbi Akiva's objection, since we have here another case where the ox is not put to death, and would therefore have to pay Chatzi Kofer (if not for "u'Ba'al ha'Shor Naki").

(d) The Beraisa of 'Miskaven' considered a bigger Chidush than that of 'Eid Echad' - because there is no reason to exempt him from paying, whereas in the case of 'Eid Echad' there is; where the owner himself witnessed the killing, he may be Patur because of 'Modeh bi'K'nas Patur', and when another single witness saw it, the absence of two witnesses may well absolve him from having to pay.

12) Regarding the question which answer did Rebbi Eliezer give Rebbi Akiva first, Rav Kahana says in the name of Rava 'Miskaven, whereas Rav Tivyomi said in the name of Rava 'Heimis' ('Eid Echad'). Each of them gave a Mashal to support his opinion.
1. Rav Kahana compared it to - a fisherman who, even after he has caught big fish, will continue fishing for small ones; so too, the fact that Rebbi Eliezer had brought a strong proof for his words did not deter him from adding another proof, albeit a weak one (as we just explained).
2. Rav Tivyomi compared it to a fisherman with a limited number of receptacles. Upon catching a large fish, he throws the small fish that he has already caught back into the water. So too here, Rebbi Eliezer only brought the proof from 'Heimis' because he had nothing better at the time. But when he discovered the proof from 'Miskaven', he cited that instead.
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