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Bava Kama 47



(a) If we knew for sure that the pregnant cow killed the ox before the calf was born, Rava would permit claiming the full Chatzi Nezek from the body of the calf - because Rava holds that a fetus is considered part of its mother (see Tosfos DH 'Mai Ta'ama').

(b) The same will not apply with regard to claiming the egg if a Tam chicken caused damage whilst it was carrying en egg - because the egg inside a chicken is considered a separate entity (which cannot be held responsible for damage caused by its 'mother'.

(a) When Rava says that one does not assess the value of the cow on its own and the calf on its own, he is referring to - the Reisha of the Mishnah, where the cow and the calf are damaged by the ox. What he means is - that rather than reckoning the two as separate entities, one assesses the loss by evaluating the pregnant cow with the fetus and without the fetus, and considering the difference as the damage.

(b) An Eved whose hand someone severed and a field from which someone cut down a row of trees or ate a row of vegetables, have in common is - that they too, are assessed in the same way: the difference between the Eved with his hand and the Eved without it (rather than the amount one would accept to have the hand of one's Eved cut off), and the difference between the field with the row of vegetables and the field without it.

(c) The reason for all of these is - because it would be unfair to the Mazik to make him pay such a high price.

(d) When Rav Acha Brei de'Rava asked Rav Ashi why we have pity on the Mazik, and that if his Din is to pay the full value of the cow, then let him pay - he replied that when all's said and done, it was not a cow and a calf that his ox killed, but a pregnant cow (so that is what he has to pay for. Note, that the other two cases will be explained later in the Masechta.

(a) Based on the previous Halachah, we take for granted that if an ox kills a fattened, pregnant cow, assuming that the cow and the fetus belonged to different owners, when Beis-Din assess the cow together with the calf, the owner of the calf will not benefit from the fact that the cow was fattened (only the owner of the cow) - because the fetus did not add to the intrinsic weight of the cow.

(b) If the cow was not fattened but naturally fat (due to its pregnancy), Rav Papa rules that here too, it is the owner of the cow who stands to gain from the cow's extra bulk (see Tosfos DH 'Nafcha'). Rav Acha B'rei de'Rav Ika says - Cholkin (since the cow's fatness is due to the calf).

(c) The Halachah is - Cholkin.

(a) The Tana discusses a case where Reuven brings his pots (or his fruit) into Shimon's Chatzer without permission. If an ox belonging to Shimon ...
1. ... smashes the pots or eats the fruit - he is Patur.
2. ... trips over either of them and injures itself - Reuven is liable.
(b) If he brought them in with permission then, in the event that Shimon smashes the pots or his animal eats the fruit - he is liable.

(c) If Reuven brings his ox into Shimon's Chatzer without permission, and ...

1. ... an ox belonging to Shimon gores it or if his dog bites it - Shimon is Patur.
2. ... it gores an ox belonging to Shimon - Reuven is Chayav.
(a) If Reuven's ox falls into a pit and ...
1. ... dirties the water in it - Reuven will be liable.
2. ... kills the owner's father or son who happens to be in the pit at the time - he will be Chayav to pay Kofer (though we will need to understand why [seeing as we are currently discussing a Tam]).
(b) If Reuven were to bring in his ox with permission - and an ox belonging to Shimon gored it or if his dog bit it - Shimon would be liable.

(c) According to Rebbi - Shimon would not be liable in any case, unless he specifically accepted responsibility for Reuven's ox.




(a) We learned in our Mishnah that if the potter brought in his pots without permission, he is liable for damages that the animals belonging to the owner of the Chatzer sustained on their account. We can extrapolate from there - that had he received permission to enter, he would be Patur.

(b) We think that this goes like Rebbi, who says in the Seifa that S'tam, the owner of the Chatzer does not accept responsibility for damages done to Shimon's ox is - because we assume that just as according to the Rabbanan, the owner accepts resonsibility S'tam for damages that his ox does to the pots, so too, does the potter accept responsibility S'tam for the damages that his pots do to the ox.

(c) This clashes with the Seifa 've'Im Hichnis bi'Reshus, Ba'al Chatzer Chayav' - meaning that S'tam, the owner of the Chatzer does accept responsibility for damages done to the pots (or to the ox), like the Rabbanan of Rebbi.

(d) We also ask from the Seifa 'Rebbi Omer be'Chulan Eino Chayav ... ' - because then the Reisha and the Seifa go like Rebbi, and the Metzi'asa, like the Rabbanan.

(a) When Rebbi Zeira says 'Tavra, Mi she'Shanah Zu Lo Shanah Zu', he means - that the Reisha and the Metzi'asa are two opinions in the Rabbanan. According to the Reisha, the Rabbanan hold like Rebbi (in the Seifa), whereas according to the Metzi'asa, they argue with him.

(b) According to Rava - the Rabbanan in the Metzi'asa argue with Rebbi over whether, when the owner of the Chatzer said 'Come in!', he automatically accepts responsibility for damages done to his pots or animals even by the wind (the Rabbanan), or not (Rebbi). But in the Reisha, they will agree with Rebbi that the potter or the owner of the animal does not accept responsibility S'tam for damages that his animals do to the property of the owner of the Chatzer, seeing as he did not say anything.

(a) In the opening case in the Mishnah, the Tana obligates the owner of the fruit to pay should the ox belonging to the owner of the courtyard trip over them. Rav comments on this, that if the oxen would have eaten the fruit and become ill from it - he would have been Patur, because it had the option not to eat.

(b) Due to the following Beraisa, Rav Asi reacted strongly to Rav's statement. He said - that Rav must have been asleep when he said that.

(c) The Beraisa says that if someone places poison in front of his friend's animal, and the animal eats it and dies - he is Patur at the hand of Beis-Din, but Chayav at the Hand of Hashem (i.e. morally).

(a) The reason we initially ascribe to the Tana resticting the case to where he gave the animal poison is - because animals do not normally eat poison, but had he placed fruit, he would even have been Chayav at the hand of Beis-Din.

(b) This explains Rav Asi's reaction - because this clearly refutes Rav's statement, since it illustrates that the Tana does not hold of the S'vara that it had the option not to eat.

(c) According to Rav, the Tana refers specifically to poison - t teach us that even though animals do not usually eat poison, he is nevertheless Chayav at the Hand of Hashem.

(a) Rav Asi asked on Rav from another Beraisa, where the Tana says that if a woman entered someone's house without permission to grind wheat, and the owner's animal ...
1. ... ate her wheat - he is Patur from paying
2. ... sustained damages due to the wheat - the woman is liable.
(b) Rav Asi understood, like he did above with regard to our Mishnah, that 'Huzkah' refers to damages through eating. He nevertheless persisted in asking here, even though we already answered above that it means by tripping over it - because here the Tana says 'Im Huzkah' (implying that it was damaged through the eating mentioned by the Tana earlier ('ve'Achlasan Behemto shel Ba'al ha'Bayis'), whereas earlier, he added the word 'Huzkah Bahen', which could well refer to tripping over them.

(c) The Tana of yet another Beraisa rules in a case where Reuven took his ox into Shimon's Chatzer and his ox ate wheat, contracted diarrhea and died, assuming that he brought in the ox ...

1. ... without permission - that Simon is Patur.
2. ... with permission - he is liable.
(d) Rav Asi asked why, according to Rav, the Tana does not exempt the owner of the Chatzer on the grounds that the ox had the option of not eating. Rava replied - that since we are speaking here when the owner permitted him to enter, that incorporates guarding the ox against all contingencies, even against it choking (a S'vara hich does not apply in a case when he entered without permission).
(a) We ask, in a case where Shimon accepts responsibility for the damages done to Reuven's ox, to what extent he accepts it - whether it even incorporates damages that it sustains via a third party.

(b) This She'eilah is relevant even S'tama according to the Rabbanan, and if he accepted responsibility, according to Rebbi.

(a) And we try to resolve it from a Beraisa quoted by Rav Yehudah bar Simon. The Tana of Nizakin de'Bei Karna says there in a case where Reuven brought his fruit into Shimon's Chatzer, and a third person's ox ate them, assuming that he entered ...
1. ... without permission - that he is Patur.
2. ... with permission - that he is liable.
(b) In an attempt to resolve our She'eilah, we establish 'Patur' and 'Chayav' in the Beraisa - by the owner of the Chatzer (in which case we see that the responsibility extends even to a third party too.

(c) We object to the counter suggestion (that Chayav and Patur refer to the owner of the ox that did the damage) - on the grounds that what is then the significance of 'Reshus' (why should 'she'Lo bi'Reshus' exempt him from liability).

(a) Nevertheless, we accept it, and the significance of 'Reshus' is - that it is then a case of Shein bi'Reshus ha'Nizak ([i.e. 'shel Shutfin'] rendering the owner of the ox Chayav), whereas 'she'Lo bi'Reshus' renders it a case of Shein bi'Reshus ha'Rabim (and he will be Patur).

(b) We reconcile this with the Halachah 'Chatzar ha'Shutfin Patur Bah al ha'Shein ve'al ha'Regel' - by establishing that case with regard to damages performed by one of the Shutfim to the other, and our case with regard to damages that a third party did to one of them them.

(c) Whyen we say 'she'Lo bi'Reshus, Havya Leih Shein *bi'Reshus ha'Rabim*', what we really mean is a Reshus that is not the Reshus of the Nizak, since that is the critetion as regards Shein.

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