(Permission is granted to print and redistribute this material
as long as this header and the footer at the end are included.)


prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

Previous daf

Bava Kama 49



(a) We can extrapolate from our Mishnah, which exempts an ox that meant to gore another ox, and inadvertently gored a pregnant woman, killing her babies - that had the ox originally meant to gore the woman, the owner is liable.

(b) We reconcile this Mishnah with Rav Ada bar Ahavah, who exempts the ox even in the latter case too. The Tana specifically present the case in this way - to balance the Seifa, where he wants to teach us that the man is Chayav even if he did not originally aim at the woman.

(c) If an ox gores a pregnant Shifchah, killing her babies - the owner is liable to pay - because in effect, he wounded a pregnant donkey, for which he is obligated to pay.

(d) We Darshen from the Pasuk (in connection with the Akeidah) "Sh'vu Lachem Poh im ha'Chamor" - 'Am ha'Domeh la'Chamor' (that as Eved is like a donkey).

(a) We query the Lashon 'Keitzad Meshalem *D'mei V'lados*' in our Mishnah - on the grounds that he is not paying for the intrinsic value of the V'lados, but for the extent that they increase the value of their mother.

(b) So we amend it to read 'Keitzad Meshalem D'mei V'lados u'Sh'vach V'lados'.

(c) This assessment does not incorporate the personal Nezek sustained by the woman - which is assessed independently.

(d) The proportion of the woman's personal Nezek that goes to the husband, and the proportion that goes to the woman herself is ...

1. ... in the case of revealed blemishes - two thirds to the husband, and one third to herself.
2. ... hidden blemishes - one third to her husband and two thirds to herself.
(a) Raban Shimon ben Gamliel argues with the Tana Kama in our Mishnah. He says 'Im Kein, mi'she'ha'Ishah Yoledes Meshabachas', which Rava interprets to mean that - on the contrary, a woman is worth more after the babies are born than before (due to the element of life-danger involved). In that case, the Mazik will not be obligated to pay anything at all.

(b) According to Raban Shimon ben Gamliel - on assesses the actual babies themselves.

(c) In a Beraisa which supports Rava's explanation, Raban Shimon ben Gamliel adds 'u'Sh'vach V'lados Cholkin'. We reconcile this with our Mishnah, where Raban Shimon ben Gamliel disagrees with those who hold that there is such a thing as Sh'vach V'lados - by establishing our Mishnah by her first baby (where the danger to her life is much higher), and the Beraisa, to subsequent births, where it is lower.

(a) Bearing in mind that the Torah has already written "ve'Yatz'u Yeladehah", it seems obvious that the Pasuk is talking about a pregnant women. The Rabbanan therefore learn from the word "ve'Nagfu Ishah *Harah*" - that the Sh'vach Heirayon (the appreciation caused by the pregnancy) goes to the husband (as the Torah writes there).

(b) Raban Shimon ben Gamliel Darshens it like Rebbi Eliezer ben Ya'akov, who restricts the obligation of the man who struck the woman - to when he struck her in the vicinity of the stomach (which is what Raban Shimon ben Gamliel learns from the word "Ishah Harah").

(c) Rav Papa extends Rebbi Eliezer ben Ya'akov's qualifiction - to the entire torso (precluding only the arms and the legs).

(a) According to Rabah, it is only if the incident under discussion took place during the lifetime of the Ger, who died only afterwards, that the man who dealt the stroke is exempt from paying, but not if the Ger was no longer alive at the time of the incident - because then, the woman takes over the monetary rights in her babies.

(b) Rav Chisda vehemently objects to Rabah's statement, on the grounds - that babies are not bundles of money over which people have monetary rights (other than what the Torah specifically states.

(c) 'Mari Dichi' means - 'Master of that statement' (with reference to Rabah, in this particular case).

(d) So Rav Chisda rules - that as long as the husband (or one of his heirs) is alive, he has the exclusive rights to the money. If he is no longer alive, then the Mazik who is Muchzak on the money, automatically acquires them.

(a) We ask on Rabah from the Beraisa that we cited already in the previous Perek. The Tana says there that in the current case, the Nezek and Tza'ar go to the woman and the D'mei V'lados to her husband. In the event that ...
1. ... the woman is no longer alive - her heirs get the Nezek and Tza'ar.
2. ... the husband is no longer alive - his heirs get the D'mei V'lados.
3. ... the woman is a Shifchah or a Giyores - the Mazik retains the Nezek and Tza'ar and the D'mei V'lados.
(b) The problem with Rabah from this Beraisa is - that according to him, if the incident took place after the death of the Ger, the Giyores takes over the rights of her babies, whereas the Beraisa states that the Mazik may retain it?

(c) Rabah resolves the problem in one of two ways; one of them, by establishing the Beraisa when the incident took place during the lifetime of the Ger (like he established our Mishnah). Alternatively, the Beraisa is speaking when it took place after the death of the Ger. In that case, he will amend the Beraisa ('Haysah Shifchah O Giyores, Zachah') - to read (not 'Zachah', but) 'Zachsah'.




(a) We cite a Beraisa which discusses a pregnant bas Yisrael who is married to a Ger and whom someone struck, killing her baby. If this took place during her husband's life-time, says the Tana, the D'mei V'lados go to the Ger. If it happened after his death, there are two opinions - one says 'Chayav, and the other, 'Patur'.

(b) We initially try to correlate this Machlokes with that of Rabah and Rav Chisda currently under discussion - by connecting Rabah with the Tana who holds Chayav, and Rav Chisda, with the Tana who holds Patur.

(c) But we conclude that, although Rabah must hold like this, Rav Chisda need not. Rav Chisda will say - that in fact both Tana'im agree with him, that the Mazik is Patur from D'mei V'lados, because their Machlokes concerns Sh'vach V'lados.

(d) The Tana who holds Chayav will then be Raban Shimon ben Gamliel (who holds that half the Sh'vach V'lados goes to the woman), and the Tana who holds Patur is the Chachamim, who holds that it goes entirely to the husband.

(a) Rabah cannot establish both Tana'im like him - because according to him, nobody would say 'Patur'.

(b) Despite the fact that the author of the Beraisa that says Chayav is Raban Shimon ben Gamliel (as we just concluded, according to Rav Chisda), the Tana speaks specifically in a case where the husband *died* (even though, according to him, the Mazik would even be Chayav in the Ger's lifetime) - because the Tana is coming to teach us that, after her husband's death, the woman receives the entire sum (whereas in his lifetime, she will only have received half).

(a) Alternatively, we establish both Beraisos like Raban Shimon ben Gamliel, which is possible - by establishing the Beraisa which says Patur, by *D'mei* V'lados.

(b) Seeing as, after the death of her husband, the woman receives Sh'vach V'lados, according to Raban Shimon ben Gamliel, we ask why he will not say the same concerning D'mei V'lados. If that were so, we would say it with regard to Sh'vach V'lados according to the Chachamim, too.

(c) We reject this suggestion however - on the grounds that it is excluively Sh'vach V'lados according to Raban Shimon ben Gamliel, which she shares with her husband in his lifetime, that she inherits completely after his death, but D'mei V'lados, according to Raban Shimon him, and even Sh'vach V'lados, according to the Chachamim, of which she receives nothing in her husband's lifetime, she will receive nothing after his death, either.

(a) Rav Yeiva Saba asked Rav Nachman about someone who is holding the documents of a Ger who dies - whether his intention is to acquire the contents of the Sh'taros exclusively, in which case he will not even acquire the Sh'taros either (and anyone who takes them from him may keep them), or whether his mind is on the Sh'taros themselves (as well as on their contents, which he cannot acquire anyway), in which case he at least acquires the Sh'taros.

(b) The ramifications of the She'eilah are - whether the paper is his to use as bottle-stoppers (or whatever he wishes to use it for) or not.

(a) Rabah rules that if a Yisrael seizes the Mashkon (security) ...
1. ... that a Ger received from his Jewish debtor, after the death of the Ger - he must return it to the debtor, because the Shibud of the Ger fell away with his death.
2. ... that a Yisrael received from his debtor who is a Ger, after the death of the Ger - he may keep it, after the creditor has taken the amount of his loan from it.
(b) We ask why, in the latter case, the creditor's Chatzer did not acquire the remainder of the Mashkon on his behalf. And we initially answer - that we are speaking in a case when the creditor is out of town.

(c) Indeed, we maintain - as long as the creditor is not there to claim the Mashkon in person, his Chatzer will not acquire it on his behalf, either.

(d) This is not the Halachah however. In fact, we are speaking - when the Mashkon was not lying in the Chatzer (otherwise he would acquire it irrespective of where he was).

(a) Our Mishnah says that someone who digs a pit in the Reshus ha'Yachid which opens into the Reshus ha'Rabim or to another Reshus ha'Yachid, or in the Reshus ha'Rabim which opens into the Reshus ha'Yachid - is Chayav.

(b) We cannot extrapolate from this Mishnah that a Bor bi'Reshus ha'Rabim is Patur (due to the fact that it has no owner) - because we will learn in the Seifa that it is Chayav.

(c) In the case when he dug the pit in the Reshus ha'Rabim with its opening to the Reshus ha'Yachid, must we say that he declared his Reshus Hefker - because otherwise, he can ask the Nizak what he is doing in his Reshus, in the first place?

(a) Rebbi Yishmael say about someone who digs a pit in the Reshus ha'Yachid which opens into the Reshus ha'Rabim - that this is the pit which the Torah is referring to.

(b) Rebbi Akiva says - that the pit which the Torah is referring to is one where the owner declared his Reshus Hefker, but not his pit.

(c) According to Rabah, Rebbi Yishmael and Rebbi Akiva argue over a Bor bi'Reshuso. Rebbi Akiva learns from the Pasuk "Ba'al ha'Bor Yeshalem" - that even a pit which has an owner is Chayav too.

(a) According to Rabah, both Tana'im will agree - that a Bor bi'Reshus ha'Rabim is Chayav.

(b) And they learn this from the Pasuk "Ki Yiftach Ish Bor" ... "ve'Chi Yichreh Ish Bor". Having obligated someone who opens a pit to pay, why does the Torah need to add that he is also liable for digging one", unless it is to teach us that one is Chayav for digging or opening a pit, even though he does not own it (to include a Bor bi'Reshus ha'Rabim).

(c) Rebbi Yishmael interprets "Ba'al ha'Bor" to mean - Ba'al ha'Takalah (meaning the man responsible for the damage (irrespective of the fact that a pit in the Reshus ha'Rabim does not belong to him)?

(d) Bearing in mind that Rebbi has a Pasuk for a Bor bi'Reshus ha'Rabim as well as for a Bor bi'Reshuso, when he says 'Zehu Bor ha'Amur ba'Torah' - he means that this is the Bor which the Pasuk speaks about first.

Next daf


For further information on
subscriptions, archives and sponsorships,
contact Kollel Iyun Hadaf,