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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 45



(a) The Tana of the Beraisa draws a distinction between an owner who, after his ox killed someone, sold it, Shechted it or declared it Hekdesh before it had been sentenced to stoning - in which case these transactions are valid, and afterwards - in which case they are not.

(b) He also says that if a Shomer returned the ox that gored someone to death to its owner ...

1. ... before the sentence - the return of the ox is valid, and he is Patur from paying.
2. ... after the sentence - it is not, and he remains liable.
(c) Rabbi Ya'akov disagrees - with the previous ruling. According to him, the Shomer is Patur in both cases.

(d) Assuming the basis of their Machlokes to be whether one can say to the owner of Isurei Hana'ah 'Harei she'Lecha Lefanecha', other practical ramifications of this Machlokes will be - whether a Shomer may return someone's Chametz to him after Pesach, or whether he must replace it.

(a) Rabah concludes that in fact, even the Tana Kama concedes that one can say to the owner of Isurei Hana'ah 'Harei she'Lecha Lefanecha', and the Tana Kama's reason for saying 'Hichziro Shomer le'Beis Ba'alav Eino Muchzor' is - because, based on the fact that an ox cannot be sentenced in its absence, the owner can say to the Shomer 'You had no right to take my ox to Beis-Din, thereby causing it to be sentenced' (whereas in the case of Chametz after Pesach, the Shomer did not perform any act to deprive the owner of the opportunity of eating it before Pesach).

(b) Rebbi Ya'akov, on the other hand, holds - that the ox can be sentenced even in its absence, in which case, the Shomer cannot be blamed for the sentence.

(c) Rabah knows that this is the Rabbanan's reason and not because they hold that one cannot say to the owner 'Harei she'Lecha Lefanecha' - because if that was the case, then they should have argued with Rebbi Ya'akov in the case of Chametz after Pesach.

(d) Neither can Rabah's reason in the Rabbanan is because the Shomer failed to return the owner's ox to him, thereby depriving him of the possibility of saving it (as the Lashon suggests) - because then, the same would apply to Chametz after Pesach (and why would the Rabbanan then agree that he can say 'Harei she'Lecha Lefanecha'?). And besides, on what basis would Rebbi Ya'akov then argue with the Rabbanan, seeing as even though the ox was sentenced in its absence, the Shomer should nevertheless be guilty for not returning the ox earlier.

(a) Rebbi Ya'akov, who maintains that it is possible to conclude the Din of an ox even in its absence, counters the Rabbanan's proof from the principle 'ke'Miysas ha'Ba'alim, Kach Miysas ha'Shor' - by pointing out that the logic behind the Din that one cannot sentence a person in his absence is, because this deprives him of the opportunity to defend himself, a logic that does not apply to an ox.

(b) We learn from the Pasuk "Ad Omdo Lifnei ha'Eidah la'Mishpat" - that a person cannot be sentenced in abstentia.

(a) We have learned in a Beraisa that the four Shomrim take the place of the owner. The difference whether the ox that they are guarding and that killed someone is a Tam or a Mu'ad will be - that the former is Patur from Kofer, the latter, Chayav. Either way, the ox is stoned.

(b) The Shomrin does the Tana exempt from reimbursing the owner for the loss of his ox is - the Shomer Chinam.

(c) We ask 'Mah Nafshach', if they guarded the ox, then they should all be Patur, and if they did not, they should all be liable, and we answer - by establishing the Beraisa when they did indeed guard the ox, but only superficially. Such a Shemirah is sufficient with respect to a Shomer Chinam, but not with respect to the other Shomrim.




(a) The Beraisa currently under discussion goes neither like Rebbi Meir nor like Rebbi Yehudah. It cannot go like ...
1. ... Rebbi Meir - who says 'Socher ke'Shomer Chinam, because in that case, the Tana ought to have listed Socher together with Shomer Chinam as being Patur from reimbursing the owner for the loss of his ox.
2. ... Rebbi Yehudah - who says that a superficial Shemirah will suffice for a Mu'ad, in which case the Shomrim ought to be Patur from paying for the damages of a Mu'ad ox, so why does the Tana say declare them Chayav?
(b) We initially establish the Beraisa like Rebbi Eliezer - who holds that a Mu'ad requires 'a knife', and no amount of Shemirah will suffice. And as far as a Socher is concerned, he will hold 'Socher ke'Shomer Sachar', like Rebbi Yehudah.

(c) Abaye establishes the author as Rebbi Meir, and he answers the Kashya on this with the words 'ke'de'Machlif Rabah bar Avuhah' - who switches the opinions of Rebbi Meir and Rebbi Yehudah. Consequently, the Tana is justified in listing exclusively the Shomer Chinam as being Patur from reimbursing the owner; and as far as a Mu'ad is concerned, he holds that a Mu'ad requires a proper Shemirah, and the Shomer who made a Shemirah Pechusah will be liable, exactly as stated in the Beraisa.

(a) Rebbi Elazar obligates a Shomer Chinam to pay should the ox he is looking after cause damage. In the event that the ox is injured however, he exempts him from paying.

(b) If the Shomer Chinam ...

1. ... accepted full responsibility (in the case of a regular ox) - he would be Chayav in both cases.
2. ... did not accept the responsibility for damages - he would be Patur in both cases.
(c) Rava establishes Rebbi Elazar's case when he did indeed accept responsibility, and the reason that he is Chayav for the one and Patur from the other is - because he is also speaking when the Shomer realized initially that the ox was a a 'Nagchan' (a goring ox). Consequently, we assume that when he undertook responsibility, he did so having in mind to keep the animal in check, but not to guard against others goring it (since that hardly seemed necessary).
(a) Rebbi Meir in our Mishnah, obligates the owner to pay for damages done by one's ox after he tied it by its reigns or locked the door in front of it - because we are speaking when the ox was able to break loose and when the door would not stand up to a regular wind This is a Shemirah Pechusah, and will not suffice, according to Rebbi Meir.

(b) Rebbi Yehudah disagrees. He learns from the Pasuk "ve'Lo Yishmerenu Be'alav" - that even a minimal Shemirah will suffice for a Mu'ad.

(c) Rebbi Eliezer is the most stringent of all. In his opinion '(Mu'ad) Ein Lo Shemirah Ela be'Sakin'.

(a) Rebbi Meir and Rebbi Yehudah argue over the interpretation of the Pasuk "ve'Lo Yishmerenu" (written in connection with Mu'ad).
The basic premise over which they argue (that will determines their respective interpretations) is - whether 'S'tam Shevarim be'Chezkas Shimur Kaymi' (Rebbi Yehudah), or not (Rebbi Meir).

(b) 'S'tam Shevarim be'Chezkas Shimur Kaymi' means - that an owner generally applies a minimal Shemirah to his ox (in which case, the Torah need not instruct him to do so).

(c) Based on the premise 'S'tam Shevarim La'av be'Chezkas Shimur Kaymi', Rebbi Meir subsequently interprets "ve'Lo Yishmerenu" to mean - a proper Shemirah (seeing as it has already necessitated a Shemirah Pechusah by a Tam).

(d) Rebbi Meir learns that a Tam also requires a a proper Shemirah - via a 'Gezeirah-Shavah' ('Negichah le'Tam, Negichah le'Mu'ad').

(a) Based on the premise 'S'tam Shevarim be'Chezkas Shimur Kaymi', and that the Torah therefore obligates a proper Shemirah by a Tam, Rebbi Yehudah interprets "ve'Lo Yishmerenu" to mean -another proper Shemirah. However, we have a principle that when we have two consecutive inclusions, the second one actually comes to exclude, in which case, the Torah is precluding a Mu'ad from a proper Shemirah.

(b) He does not Darshen the Gezeirah-Shavah ('Negichah le'Tam, Negichah le'Mu'ad'), like Rebbi Meir - because of "ve'Lo Yishmerenu", which serves as a 'Miy'ut', precluding a Tam from a Shemirah Pechusah.

(c) Despite the fact that we need "ve'Lo Yishmerenu" to teach us the initial Chiyuv by a Mu'ad, we nevertheless Darshen the 'Miy'ut' - because for the initial D'rashah, the Torah could have written "ve'Lo Yishmor". It adds "nu" to teach us the 'Miy'ut'.

(d) The most lenient opinion of all is that of Rebbi Eliezer ben Ya'akov. On the presumption that he follows the basic D'rashah of Rebbi Yehudah, Rebbi Eliezer ben Ya'akov learns that even a Tam requires only a Shemirah Pechusah - from the 'Gezeirah-Shavah' 'Negichah le'Tam, Negichah le'Mu'ad' (which Rebbi Yehudah rejected).

10) According to Rav Ada bar Ahavah, even though Rebbi Yehudah exempts a Mu'ad from a proper Shemirah, the owner will nevertheless be liable to pay half - because every Mu'ad retains a Tzad Tamus.


(a) According to Rav, Ha'ada'ah on an ox's right horn does not cover its left one. The reverse will not be true - because the right horn being the stronger one, an ox that is Mu'ad for its left horn is certainly Mu'ad for its right one.

(b) Rav cannot be referring to the Din of how much the owner has to pay - because if, as we have already learned, 'Mu'ad le'Adam Eino Mu'ad li'Beheimah', it goes without saying that Mu'ad le'Keren Yemin (which is the stronger one, as we just explained), is not Mu'ad le'Keren S'mol.

(c) He must therefore be referring to Shemirah - whether a Shemirah Pechusah will suffice or not.

(d) Rav cannot hold like ...

1. ... Rebbi Meir - because in his opinion, both a Tam and a Mu'ad require a proper Shemirah.
2. ... Rebbi Yehudah, according to Rav Ada bar Ahavah - because, according to him, every Mu'ad contains a Tzad Tamus, and Rav could just as well have cited the right horn (to teach us that even a Mu'ad remains obligated to pay half).
(a) Ultimately, Rav holds like - Rebbi Yehudah, only he disagrees with Rav Ada bar Ahavah.

(b) In fact, he is coming to teach us - that it is only from one horn to another that Tamus remains, but not in one horn.

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