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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 59



(a) Abaye equates the stringent opinion of Rebbi Yossi Hagelili ('Achlah Chaziz Nidun bi Meshuyar she'Bo') in the Beraisa currently under discussion, with that of Rebbi Yishmael in another Beraisa. According to Rebbi Akiva, one pays for the damaged land according to its value at the time of the damage (see Tosfos DH 'u'Mai Niyhu'). Rebbi Yishmael says -'Meitav Sadeihu ... shel Nizak Ki He'ach de'Salik' (as much as it will be worth in the harvest season, when it is ready to pick).

(b) Rav Idi bar Avin explains Rebbi Yishmael's statement "Meitav Sadeihu ... ", 'Meitav Sadeihu shel Nizak ... ' differently. According to him, Rebbi Yishmael means - that if one is uncertain from which quality crops the animal ate, we assess the Nizak's best crops, and that is what the Mazik pays.

(c) We reject this explanation however - on the basis of the principle 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' (which gives the defendant and not the claimant, the benefit of the doubt).

(a) Rebbi Shimon ben Yehudah quoting Rebbi Shimon says in the Reisha that 'Lulvei Gefanim ve'Yichurei Te'einim are still considered part of the field, and in the Seifa that Pagim or Boser are reckoned as independent fruit, as if they were ready to pick. 'Pagim' and 'Boser' are - figs and grapes respectively, that are beginning to ripen (one stage further than S'madar).

(b) The Reisha and the Seifa appear to clash - inasmuch as they both omit S'madar, implying at one and the same time that S'madar has the same Din as ripe fruit (the Reisha) and that it does not (the Seifa).

(c) When Ravina answers 'K'roch ve'Tani ... ' he means (in fact, he actually says) - that from the inference of the Reisha, we specifically include S'madar in the Seifa 'Bameh Devarim Amurim ... Aval Achlah S'madar, Pagim O Boser, Ro'in Osam ... '.

(d) The fact that Rebbi Shimon now places S'madar in the same category as Pagim and Boser creates the problem - that he then seems to be saying exactly the same as Rebbi Yehoshua, who in the same Beraisa, considers S'mader as if it was ripe fruit ready to pick.

(a) We reply 'K'chash Gufna Ika Beneihu'. K'chash Gufna - constitutes the depreciation of the fig-trees or the vines that would have taken place had the fruit remained on the trees until the harvest season. One of the Tana'im holds that we deduct this from the damages, the other maintains that we don't.

(b) Initially, we do not know which Tana deducts 'K'chash Gufna' and which one does not. But Abaye cites a Beraisa which settles the issue. Rebbi Shimon ben Yehudah quoting Rebbi Shimon ben Menasya says - that an O'nes is exempt from paying Tza'ar, seeing as the girl (a Besulah) would have experienced Tza'ar at the hand of her husband anyway.

(c) The Chachamim disagree on the grounds - that one cannot compare the pain of a Besulah who is raped to the pain of being intimate with her husband.

(d) In any event, Abaye has proved that Rebbi Shimon ben Yehudah is the one who takes into account the loss that the Nizak would anyway have suffered and deducts it from the damages.

(a) Abaye says further that the following Tana'im hold like Rebbi Shimon ben Yehudah. When ...
1. ... Rebbi Yossi says 'Nechi Chayah', he means - that we deduct the midwife's costs from the damages.
2. ... ben Azai says 'Nechi Mezonos', he means - that we deduct the extra food that a woman about to give birth requires from the damages.
(b) Rebbi Yossi does not take into account the fact that the damage and the pain are greater now than if she had had a normal birth with a midwife participating - because the Mazik already pays for the damages and the pain.

(c) ben Azai disagrees with Rebbi Yossi - because, he argues, the husband can claim that his wife would have managed fine without a midwife (like the women in Egypt).

(a) According to the first Lashon, Rav Papa and Rav Huna Brei de'Rav Yehoshua issued a ruling like Rav Nachman (one in sixty). According to the second Lashon - they assessed a date-palm as part of a plot of land, and not independently (though the difference between the two Leshonos is unclear).

(b) The Halachah is like Rav Papa and Rav Huna Brei de'Rav Yehoshua regarding regular date-palms ...

(c) ... but like the Resh Galusa (who assessed the tree independently) - in the case of Persian date-palms, because of their great value.




(a) Eliezer Ze'ira was standing in the main street of Neherda'a wearing black shoes - as a sign of mourning for Yerushalayim.

(b) The Resh Galusa's men objected to this - because it is considered conceited for anyone other than a great man (a Talmid-Chacham) to mourn publicly in this way.

(c) To discover whether he was a great man or not, Eliezer Ze'ira gave them the option - of either asking him a question that he could not answer or of him asking them one.

(a) When the Resh Galusa's men opted for him to ask them, he asked them how much someone who cuts off Kufra from a date-palm has to pay. 'Kufra' is to dates what Boser is to grapes.

(b) The Mazik ought not to pay ...

1. ... for Kufra - because it is fully-grown dates that he deprived the owner of.
2. ... for fully-grown dates - because what he actually destroyed was Kufra.
(c) So he ruled - that one assesses one in sixty, precisely because someone who buys land, pays for the anticipated gains that he will later reap.

(d) He vindicated himself - by citing Shmuel and his Beis-Din. They did indeed support his ruling, and the Resh Galusa's men let him go.

8) We have already quoted Rebbi Shimon, who says in our Mishnah that if the animal ate fruit that was ready to pick, the owner pays for the fruit independently. He derives this from the Pasuk "u'Bier bi'S'dei Acher" - from which we learned to assess the damage as part of the field. It therefore stands to reason that fruits that no longer need the field are assessed independently.


(a) Rav Huna bar Chiya ... stated that Rav issued a ruling like Rebbi Meir. Rebbi Meir says that a woman who signs on the second sale of the field that was designated for her Kesuvah, after having declined to sign the first time her husband attempted to sell it - loses her Kesuvah.

(b) According to Rebbi Yehudah, the woman can claim that she only signed in order to satisfy her husband (but that she didn't really mean it).

(c) Rebbi Meir disagrees with Rebbi Yehudah specifically in this case - because if she merely wants to satisfy her husband, why did she decline to sign the first time?

(d) Rav also ruled like Rebbi Shimon - who said in our Mishnah that if the animal ate fully-grown fruit, then that is what the owner must pay for ('if it ate a Sa'ah, then he pays for a Sa'ah, and if it ate two, then he pays for two [and not as part of the field]').

(a) Our Mishnah states that if an animal belonging to Shimon ate the haystack that Shimon made in his field without his consent, he is Patur. In a case where Shimon's animal ...
1. ... tripped over the hay and got hurt, the Tana rules that Reuven is liable.
2. ... ate the hay after Reuven received permission to enter - then Shimon is liable.
(b) This is not a S'tam Mishnah not like Rebbi, who holds that even if Shimon would permit Reuven to enter, this would not automatically include an undertaking to accept liability for any damage to his goods, unless he specifically undertook to do so - because the Tana is speaking specifically in a case of 'the guard of the granary', where they would appoint a guard to look after the entire valley of haystacks. Since it was his job to protect the haystacks, even Rebbi concedes that permission to enter incorporates an undertaking to do so.
(a) We have already cited our Mishnah which exempts someone who leaves a fire in the charge of a 'Chashu', should the fire subsequently cause damage. If the person in whose charge he leaves it is a Pike'ach - then the Pike'ach is liable (because of the principle 'Ein Sheli'ach li'D'var Aveirah').

(b) In a case where Reuven prepares ...

1. ... the fire, and Shimon, the wood - then Shimon is liable.
2. ... the wood and Shimon, the fire - Shimon is liable.
(c) If in either of the above cases ...
1. ... Levi fanned the flames - then Levi is liable.
2. ... the wind fanned the flames - they are all Patur.
(a) We have also already cited the Machlokes between Resh Lakish and Rebbi Yochanan regarding how our Mishnah speaks. According to Resh Lakish quoting Chizkiyah, the Tana speaks when he handed the 'Chashu' non-flaming coal. If he handed him a flaming coal - then he is liable (because it is *his* fire that caused the damage).

(b) According to Rebbi Yochanan - he is Patur even then, because without the Chashu's participation, the damage would not have taken place (bearing in mind that, without it, the fire would have died down and gone out).

(c) He would however, be liable for leaving a fire in the charge of a 'Chashu', even according to Rebbi Yochanan - if he handed him thorns, twigs and a flame.

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