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Bava Kama 58



(a) Had Rabah not taught us that in the case of a sheep that fell into a field below and broke the crops together with its fall, the owner is obligated to pay for the Hana'ah, why would we have exempted him from paying altogether - because it is similar to Mavri'ach Ari (he merely spared him a loss, without giving him anything concrete).

(b) The difference between 'Mavri'ach Ari' and this case is twofold - a. because Mavria'ch Ari saves the animals from being attacked of his own choice, and b. because it does not cost him anything; whereas in our case, Reuven's sheep ruined Shimon's crops against his will, dispensing with both reasons for which Mavri'ach Ari is Patur.

(c) According to Rav Kahana, the sheep fell by slipping in its own urine. According to Rava - it was pushed over the embankment by another sheep.

(d) Rav Kahana disagrees with Rava - because, in his opinion, if one animal pushed another over the embankment, it would reflect the owner's negligence in leading them in pairs along a narrow path, rather than in single file.

(a) According to Rav Kahana, the owner pays only for the Hana'ah, as long as his sheep continues to eat from the row where it fell. But the moment it moves on to another row, he becomes liable to pay for the damage. Rebbi Yochanan says - that even if it walks from one row to another, the owner pays only for the Hana'ah, until the animal leaves the field and returns a second time with the owner's knowledge.

(b) This does not mean - that he is not liable until the sheep leaves the field with the owner's knowledge and returns with his knowledge too. It will suffice to leave with his knowledge but to return even without it. He will be obligated to pay full damages, because once the animal has tasted freedom, he can be sure that it will make every effort to escape again. Consequently, the next time the animal escapes, he will be considered negligent for not taking the necessary precautions.

(a) Rebbi Yirmiyah asks what the Din will be if a pregnant sheep climbs down to the field below, gives birth and damages with the Mei Leidah (the amniotic fluids). This She'eilah is irrelevant according to those who hold 'Techilaso bi'Peshi'ah ve'Sofo be'O'nes Chayav' - because not guarding the animal against climbing down to the field below is negligence, placing this case in that category.

(b) Rebbi Yirmiyah's She'eilah therefore is whether the owner is not liable even according to those who hold 'Techilaso bi'Peshi'ah ve'Sofo be'O'nes, Patur' - because seeing as he must have known that his sheep is close to giving birth, the owner was careless in allowing a potential damager to roam around. Consequently, it falls under the category of 'Techilaso bi'Peshi'ah, ve'Sofo bi'Peshi'ah'.

(c) The outcome of the She'eilah is 'Teyku' (the acronym of 'Tishbi Yetaretz Kushyos ve'Ibayos').




(a) Rav Masna learns from the Pasuk "u'Bi'er *bi'S'dei Acher*" - that one does not assess what the animal ate indepentently, but as part of the field.

(b) We learn that Shein is Patur in the Reshus ha'Rabim - from the Pasuk "u'Bi'er bi'S'dei Acher".

(c) It is possible to learn two D'rashos from the same words - the latter from the Pasuk, as we explained, the former from the fact that the Torah wrote "u'Bi'er bi'S'dei Acher", and not "u'Bi'er bi'S'dei Chaveiro" or "u'Bi'er S'dei Acher".

(d) The Pasuk cannot come to teach us the former D'rashah (to assess the damage as part of the field, and not as an independent entity) exclusively - because the Torah should then have inserted it in the Pasuk which discuss payment ("Meitav Sadeihu u'Meitav Karmo Yeshalem bi'S'dei Acher"), rather than in the Pasuk that deals with the damage.

(a) According to Rebbi Yossi b'Rebbi Chanina, we reckon a Beis Sa'ah in sixty Sa'in - meaning that if the ox ate a Kav or two, we reckon it as part of a Beis Sa'ah, which in turn, we reckon as one sixtieth of a field of sixty Sa'ah.

(b) We cannot simply assess the Kav as one sixth of a Beis Sa'ah - because that would be unfair to the Mazik, since it is only a poor person who would purchase such a small plot of land, and he would pay dearly for it (much more than a Beis Sa'ah which is a sixtieth of sixty Sa'ah is worth).

(a) According to Rebbi Yanai, we reckon a Tarkav in sixty Tarkavin. A Tarkav is - half a Kav (in thirty Sa'ah).

(b) He disagrees with Rebbi Yossi b'Rebbi Chanina on the grounds that the assessment of a Sa'ah in sixty Sa'in would cause the Nizak an unfair loss - because the owner of a field of sixty Sa'ah (which is too large for an average person and too small for as wealthy man) is forced to sell it cheaply.

(c) Chizkiyah's assessment is the closest to the Pasuk ("u'Bi'er bi'S'dei Acher"). Disregarding the above arguments, he holds - that one simply assesses whatever the animal ate in a plot sixty times the area of the damage.

(a) The Beraisa says that if an animal ate a Kav or two, we do not reckon just what it ate, but as if it was a small row. This Beraisa poses a Kashya on all three opinions - because the Tana, who makes no mention of sixty, seems to hold that one assesses what the animal ate independently.

(b) The three Amora'im interpret the Beraisa to mean - in sixty (each one according to his opinion), even though the Tana did not say so.

(a) Another Beraisa states 'Ein Shamin Kav Mipnei she'Mashbicho ve'Lo Beis Kur Mipnei she'Pogmo'. Rav Papa interprets ...
1. ... 'Ein Shamin Kav' to mean - 'Ein Shamin Kav be'Shishim Kabin' (if the animal ate a Kav, one does not reckon it as part of a field of sixty Kabin), and ...
2. ... 'Mipnei she'Mashbicho' - because it would be to the *Mazik's* advantage (because, seeing as it is too large for a poor man to purchase and too small for the ordinary man, the owner is forced to sell it cheaply).
3. ... 've'Lo Beis Kur' to mean - 've'Lo Beis Kur be'Shishim Kurin', and ...
4. ... 'Mipnei she'Pogmo' - because it would be to the *Mazik's* disadvantage (because, seeing as sixty Kurin is huge, too big for anyone to afford other than someone who is extremely rich, who will pay a fortune for it, the owner will demand an exorbitant price for it [and besides, a Kur is a sizable patch, and the loss would be assessed at a far higher rate]).
(b) In either case, one would in fact, assess whatever the animal ate as part of a Sa'ah (in the latter case one would do this thirty times [because there are thirty Sa'in in a Beis Kur]) which one reckons as part of a field of sixty Sa'ah.

(c) Rav Huna bar Mano'ach ... objects to Rav Papa's explanation - on the grounds that the Tana should then have said 've'Lo Kur Mipnei she'Pogmo' (instead of 've'Lo Beis Kur ... ').

(d) He finally explains ...

1. ... 'Ein Shamin Kav' to mean - that one does not reckon the Kav that the animal ate independently ...
2. ... 'Mipnei she'Mashbi'cho' - because it would be to the *Nizak's* (unfair) advantage.
3. ... 've'Lo Beis Kur' to mean that neither does one assess it as part of a field of sixty Kur ...
4. ... 'Mipnei she'Pogmo' - because it would be to the *Nizak's* (unfair) disadvantage.
(a) When Reuven chopped down a Kasba (a date-palm - see also Tosfos ) belonging to Shimon - the Resh Galusa (the Exilarch) obligated him to pay thirty-three and a third Zuz (because it belonged to a group of three trees which he evaluated at a hundred Zuz.

(b) Reuven was unhappy with the Resh Galusa's ruling - because he assessed the tree independently, and not in sixty, as we learned above.

(c) So he took his case to Rav Nachman (who was the Resh Galusa's son-in-law and) who ruled that the tree must be assessed in sixty.

(d) Rava objected to Rav Nachman's ruling - on the grounds that one in sixty is a leniency that is confined to damage performed by one's property, but not to damage performed by Adam ha'Mazik.

(a) Abaye quotes a Beraisa which he (correctly) presumes is the source of Rava's stringent view in the case of damage perpetrated by the person himself. The Beraisa says that if Reuven destroys Shimon's fig orchard or vineyard when it is in the stage of S'madar (immediately after the fig or grape blossoms have turned into berries) - he must pay the difference between the trees' value before the damage and afterwards (and the Tana makes no mention of one in sixty).

(b) Abaye refutes Rava's proof from here that Nizkei Adam do not require one in sixty - by quoting a Beraisa that deals with Nizkei Beheimah, which does not mention one in sixty either (as we shall now see). Consequently, we have no choice but to draw our conclusions in both cases.

(a) The Gozrei Gezeiros (Admon and Chanan ben Avshalom) ruled that someone whose animal destroys a sapling of ...
1. ... one year old - must pay two Zuzim.
2. ... two years old - must pay four Zuzim.
(b) According to Rebbi Yossi Hagelili, if it ate Shachas, one assesses what the row will be worth when it is fully-grown and the owner pays accordingly. 'Shachas' is - 'fodder (short crops during the early stages of growth).

(c) The Chachamim say - that one assesses what the land was worth before the animal ate the Shachas, and what it is worth afterwards, and he pays the difference.

(d) They say the same in a case where the animal ate S'madar. Rebbi Yehoshua says there - that we consider them like figs or grapes in the harvest season that are ready for picking (i.e. independently, and not together with the field - similar to Rebbi Shimon in our Mishnah.

(a) Rebbi Shimon bar Yehudah cites Rebbi Shimon, who agrees with the Chachamim in certain cases. He ...
1. ... agree with them - if the animal ate them when they were still at the earliest stages of blossoming ('Lulavim' by grapes, and 'Yichurim' by figs).
2. ... argues - if it ate them when they had already turned into small figs or grapes (Pagim or Boser - which will be explained shortly).
(b) Abaye proves from the Chachamim (against Rava) - that the Tana does necessarily mention one in sixty, even though it is obvious that this is what he means.
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