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Bava Kama 62

BAVA KAMA 62 (Yom Kipur) - Dedicated by Rabbi and Mrs. Kornfeld in honor of the Bat Mitzvah of their daughter, Malkie. May she grow in Yir'as Shamayim and follow in the ways of her illustrious grandparents and ancestors!



(a) The Beraisa cites the Machlokes Rebbi Yehudah and the Rabbanan regarding Tamun ba'Eish, and distinguishes between where the Mazik lit the fire in his own domain and where he set fire to the Nizak's haystack directly, as we just discussed. Rava interprets the statement 'Aval Madlik be'Soch shel Chaveiro, Divrei ha'Kol Meshalem Mah she'be'Socho' - by vessels that one normally keeps in a haystack (such as plowing implements). Otherwise, he would be Patur from paying.

(b) In the case where Reuven lends Shimon a location to pile up a wheat-stack, and he ...

1. ... breaks the condition and piles up a barley-stack - Rebbi Yehudah rules that he pays for a barley-stack, because that is what he saw (or vice-versa - see Tosfos DH 'she'Eino')
2. ... piles up a wheat-stack but overlays it with barley or vice-versa - he concedes that he only pays for a barley-stack (in the first case because that is what he saw, and in the second, because that is what he stipulated with him.
(c) Rava rules that if a woman damaged a golden Dinar which she was given to look after, and which she was told, was silver - she is obligated to pay for the golden Dinar that it really was (because she had no right to damage it [irrespective of what it was made of]), whereas if she was merely careless and the coin got lost - she pays for the silver Dinar that she thought it was (because that is what she undertook to guard).

(d) Rav Mordechai extrapolated this latter Halachah from the previous Beraisa - where in the case where Reuven lent Shimon a location to pile up a barley-stack and he piled up a wheat-stack, he pays only for a barley-stack, because that is what he undertook to take care not to damage.

(a) When Shmuel asked with surprise why Aba did not know what he had heard according to Rebbi Yehudah - he was referring to Rav, who could not recall what he had heard regarding Tamun ba'Eish, according to Rebbi Yehudah.

(b) Shmuel supplied the required information. When he said that according to Rebbi Yehudah ... 'Asu Takanas Nigzal be'Isho', he meant - that according to Rebbi Yehudah, who obligated the Mazik to pay for Tamun, Chazal extended the Takanah that a Nigzal swears what was stolen from him and takes it from the thief, to the case of Tamun (because in both cases, we would not otherwise know how much the guilty party is obligated to pay.

(c) And when Ravina asked whether they made Takanas Nigzal by a Masur or not, he meant to ask - whether they also extended it to a case a Masur (where Reuven had witnesses that Shimon had connived with the authorities to confiscate his property, but they did not know how much was involved).

(d) This She'eilah is confined to those who judge 'Diyna de'Garmi' (directly causing someone a definite loss [which will be explained in 'ha'Gozel u'Ma'achil']), because according to those who do not - the Masur is exempt from paying altogether, and there is nothing to ask.

(a) In the case where Reuven knocked Shimon's money-box out of his hand and into the river - we initially interpret Rav Ashi's dilemma to be exactly the same as Ravina's She'eilah with regard to a Masur (whether Takanas Nigzal applies to this case).

(b) Rav Ashi did not derive the ruling in this case from Rebbi Yehudah in the above Mishnah 'u'Modim Chachamim le'Rebbi Yehudah be'Madlik es ha'Birah ... she'Kein Derech B'nei Adam Le'hani'ach be'Batim' - because he claimed that he had kept pearls in the box. Consequently, Rav Ashi's She'eilah was whether a person tends to keep pearls in a money-box or not.

(c) The outcome of both the She'eilah of Ravina and that of Rav Ashi is - 'Teiku'.

(a) Rav Yeimar asked Rav Ashi whether we will believe the Nizak whose house was burned down if he claims that he had kept a silver goblet in the house, which got burned too. He replied that we believe him as long as he meets one of two conditions - either that we assess him as a wealthy man who is likely to have owned such a goblet, or that he is an honest sort of person to whom people would entrust such a silver goblet.

(b) Rav Ada Brei de'Rav Ivya asked Rav Ashi to define the difference between a Gazlan and a Chamsan. He replied - that a Gazlan does not pay money for the object that he stole, a Chamsan does.

(c) Rav Huna says 'Talyuhu ve'Zavin, Zevineih Zevina' (meaning that if Reuven forces Shimon to sell him a field by hanging him up until he agrees to sell it, then the sale is fully valid).

(d) Rav Ashi goes on to reconcile his description of a Chamsan with Rav Huna, who seems to give someone who does this a semblance of respectability (whereas the Torah equates a Chamsan with a Gazlan - see Tosfos 'Mah Bein') - by drawing a distinction between where Shimon subsequently agrees to sell (Rav Huna) and where he doesn't (Rav Ashi).




(a) A blacksmith - is liable for sparks that fly from his hammer as he strikes the anvil, and cause damage.

(b) The Tana of our Mishnah obligates the owner of the camel to pay for the damage, if his camel is walking down the street, and the bail of flax that it is carrying enters a store, catches fire on a burning candle, and sets fire to the entire building. If the store-keeper placed his candle outside the store, according to ...

1. ... the Tana Kama - the storekeeper will always be liable.
2. ... Rebbi Yehudah - the storekeeper will be liable at all times except for on Chanukah (when it is a Mitzvah to place one's Ner-Chanukah outside).
(c) Ravina extrapolate from Rebbi Yehudah that Lechatchilah one is obligated to place one's Ner Chanukah lower than ten Tefachim - because otherwise, why does Rebbi Yehudah exempt the person whose Ner Chanukah caused damage? Why is he not liable for not placing it above the level of a camel and its rider?

(d) We reject Ravina's proof on the grounds that even if it was not a Mitzvah to place the Chanukah-lamp higher than ten Tefachim, he would not held responsible for damages that his lamp caused below the height of a camel and its rider - because we do not to put someone who is performing a Mitzvah to go through so much trouble.

(a) Rav Kahana, quoting ... Rebbi Tanchum, Darshened - that a Ner Chanukah that is above twenty Amos is Pasul.

(b) The reason for this is - because people do not automatically notice it, and there is therefore no 'Pirsumey Nisa' (publicity of the miracle, a major ingredient of the Mitzvah of Ner Chanukah).

(c) The two other areas of Halachah where we will find the same restriction - are those of Sucah and Mavoy (a blind alley, with regard to the Dinim of carrying on Shabbos).

***** Hadran Alach, ha'Ko'nes *****

***** Perek Merubeh *****


(a) The Tana of our Mishnah describes the Midah of paying double as being more common than that of four and five times - inasmuch as the former pertains to any object that the Ganav stole, whereas the latter is restricted to an ox and a sheep.

(b) We extrapolate from the Pasuk "ve'Gunav mi'Beis ha'Ish" - "mi'Beis ha'Ish", 've'Lo mi'Beis ha'Ganav' (meaning that if someone stole from the Ganav, he is Patur from paying double).

(c) Only Reuven who stole the ox or the cow, is obligated to pay four or five times its value in the event that he Shechted it, but not Shimon.

(a) Rebbi Chiya bar Aba Amar Rebbi Yochanan says that a To'en Ta'anas Ganav by a Pikadon ...
1. ... who is found to have sworn falsely - pays double.
2. ... who then Shechts or sells the ox or the sheep - pays four or five times.
(b) Had Rebbi Yochanan not made this statement, we would have thought - that he pays double but not four or five times.

(c) We prove Rebbi Yochanan correct from our Mishnah - which does not list this as another difference between the Midah of double and that of four or five times.

(d) In the second Lashon, we reject this proof however - on the grounds that maybe the Tana leaves out some distinctions between Kefel and Arba'ah va'Chamishah ('Tana ve'Shiyer') see Tosfos DH Merubeh Katani').

(a) The Beraisa discusses the details of the Shevu'ah required by a Shomer Sachar when he alleges that the article was stolen or lost. The Tana learns from the 'K'lal u'P'rat u'Ch'lal' "Al Kol D'var Pesha; Al Shor al Chamor al Seh ve'Al Salmah; al Kol Aveidah" - that one only swears on something that is movable and has intrinsic value.

(b) We now preclude ...

1. ... Karka'os from a Shevu'ah, on the grounds - that they are not movable.
2. ... Avadim" - that they are compared to Karka'os.
3. ... Sh'taros - that they do not have intrinsic value.
(c) The Tana also precludes Hekdesh - due to the fact that the Torah also writes "Shor *Re'eihu*", from which we Darshen 've'Lo shel Hekdesh'.
(a) Based on the fact that the 'P'rat' lists only Shor, Chamor and Seh - the Tana attempts to preclude birds, whose carcasses are not Metamei through touching and carrying.

(b) The fact that the Torah adds 'Salmah' is not sufficient justification to include them - because "Salmah" is not an animal (but this is based on the following fact).

(c) When we say 'de'Ha Kol Chad ve'Chad K'lal u'P'rat be'Apei Nafsheih Darshinan', we mean - that since there are so many 'P'sratim', we cannot lump them together and use "Salmah" to include all other living creatures. But each 'P'rat' must be Darshened independently.

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