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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Kama 63



(a) 'de'Ha Kol Chad ve'Chad K'lal u'P'rat be'Apei Nafsheih Darshinan', which we just cited is based on the fact that the Torah should only need to write one P'rat, and that all the others are therefore superfluous. Had the Torah written ...
1. ... "Shor", it would still need to write "Chamor - to include even animals that are not fit to go on the Mizbe'ach.
2. ... "Chamor", it would still need to write "Shor" - to include animals that are not subject to Kedushas Bechorah (such as deer).
(b) We can learn this from "Shor", even though they are subject to the Din of Bechor - through the principle of 'Im Eino Inyan', because, seeing as we do not require a Pasuk to include animals that are subject to Bechorah, we use the extra word ("Shor") to include those that are not.

(c) The Torah needs to write "Seh" - to include birds.

(d) But that will only suffice to include Tahor birds, which are similar to sheep (with regard to the Dinim of Tum'ah) - inasmuch as, like the carcasses of sheep are metamei, so too are their carcasses Metamei even the clothes of people who eat them (whereas the carcasses of Tamei birds are not Metamei at all).

(a) We include Tamei birds - from "Kol", which is (not just a "K'lal, but) a 'Ribuy'.

(b) We learn from there - that with Ma'aser-Sheini money one may only buy something that is 'P'ri mi'P'ri ve'Gidulei Karka'.

(c) "u've'Chol" there is not considered a 'Ribuy' - because whereas "Kol" is a Ribuy, "ve'Chol" is not.

(a) Alternatively, "Kol" is generally a 'K'lal', and not a 'Ribuy'. Nevertheless, "Al Kol D'var Pesha considered a 'Ribuy' - because we already have a 'K'lal u'P'rat u'Ch'lal' from the beginning of the Parshah (as we shall now see).

(b) In fact, both the 'K'lal u'P'rat u'Ch'lal' of "Al Kol D'var Pesha ... " and that of "Ki Yiten Ish el Re'eihu; Kesef O Keilim; Li'shmor" teach us to confine the Pasuk to 'Davar ha'Metaltel ve'Gufo Mamon'. The "K'lal u'P'rat u'Ch'lal" of ...

1. ... "Ki Yiten Ish el Re'eihu; Kesef O Keilim; Li'sh'mor" speaks in connection with - Shevu'as Shomrim.
2. ... "Al Kol D'var Pesha; Al Shor al Chamor al Seh ve'Al Salmah; al Kol Aveidah" speaks in connection with - the Din of Kefel (paying double).
(c) What makes the 'Kol' in the second Pasuk a 'Ribuy' rather than a 'K'lal' is - the fact that it repeats the entire 'K'lal u'P'rat u'Ch'lal', instead of inserting the P'ratim in the first list, using the same two K'lalim.
(a) So now, with regard to paying Kefel, we have to contend with four Miy'utim ("Shor", "Chamor", "Seh" and "Salmah"). If "Shor" excludes Karka, and "Chamor", Avadim, we use ...
1. ... "Seh" - to preclude Sh'taros.
2. ... "Salmah" - to preclude something which has no clear identification.
(b) "Al Kol Aveidah" comes to include the statement of Rebbi Chiya bar Aba - who says 'ha'To'en Ta'anas Ganav ba'Aveidah, Meshalem Tashlumei Kefel'.

(c) His source is the Pasuk "Al Kol D'var Pesha"?




(a) We have learned in a Mishnah in Shevu'os 'Heichen Pikdoni, Amar Leih Avad, Mashbi'acha Ani ... ve'ha'Eidim Me'idim Oso she'Achlo, Meshalem es ha'Keren'. In a case where the Shomer confesses that he ate it, the Tana says - he pays the principle plus a fifth and brings an Asham.

(b) He does not pay the extrta fifth and bring an Asham in the previous case - because he only does so by his own admission, as we shall now see.

(c) We learn that To'en Ta'anas Ganav or Avad is Patur from Chomesh there is no Asham when there are witnesses from a Pasuk by the Asham of Gezel ha'Ger (where the Torah writes ''ve'Hisvadu es Chatosam"). This also teaches us that he is Patur from Chomesh - because there is no such thing as Chomesh without an Asham.

(d) With regard to the case where there are witnesses, the same applies to a To'en Ta'anas Ganav. The Tana says that a To'esn Ta'anas Ganav ...

1. ... who confesses that he ate the animal - pays the principle plus a fifth and brings an Asham.
2. ... who is proved to have lied through the testimony of two witnesses, but whose claim was not supported by a Shevu'ah - pays the principle only.
(a) The Tana of the first Beraisa learns that the Pasuk "Im Yimatzei ha'Ganav Yeshalem Shenayim" is referring to a Shomer who is To'en Ta'anas Ganav and not to the Ganav himself - from the following Pasuk "Im Lo Yimatzei ha'Ganav", which is definitely talking about a To'en Ta'anas Ganav (as we shall see, and) which reflects on the previous Pasuk.

(b) The second Beraisa says - that to the contrary, since the second Pasuk is speaking about a To'en Ta'anas Ganav, the first Pasuk must be speaking about a Ganav (to teach us that a thief pays double).

(c) Both Tana'im agree however, that the second Pasuk ("ve'Gunav mi'Beis ha'Ish ... Im Lo Yimatzei ha'Ganav ... ") is speaking about a To'en Ta'anas Ganav. They interpret ...

1. ... "Im Lo Yimatzei ha'Ganav Yeshalem Shenayim le'Re'eihu" - to mean that the alleged thief is not found, because it is the Shomer himself who had stolen the article.
2. ... ve'Nikrav Ba'al ha'Bayis el ha'Elohim" - to mean that the owner took the Shomer to Beis-Din and demanded a Shevu'ah.
(d) They learn from the 'Gezeirah-Shavah' Shelichus Yad' 'Shelichus Yad' - that the Torah does indeed refer to a Shevu'ah here ( a Shevu'ah that he did not lay a hand on the object), and not just to a monetary claim.
(a) The Tana who learns both Pesukim by To'en Ta'anas Ganav, explains the Torah's need for two Pesukim - to stress that it is only a To'en Ta'anas Ganav who pays double, but not a Ta'anas Avad.

(b) The other Tana precludes To'en Ta'anas Avad from the extra 'Hey' in "Im Lo Yimatzei ha'Ganav". The first Tana uses the 'Hey' to include the Din of Rebbi Chiya bar Aba Amar Rebbi Yochanan, who says that if a To'en Ta'anas Ganav then Shechts or sells the ox or the sheep - he pays four or five times (just like a Ganav).

(c) The second Tana, we explain, learns Rebbi Yochanan's Din from a Hekesh - comparing To'en Ta'anas Ganav (of "Im Lo Yimatzei ha'Ganav") and Ganav (in the Pasuk of "Im Yimatzei ha'Ganav"), and we have a principle 'Ein Mashivin al ha'Hekesh'.

(a) According to the Tana who establishes both Pesukim by To'en Ta'anas Ganav, we need to find a source for a Ganav having to pay double. We cannot learn it from a 'Kal va'Chomer' from To'en Ta'anas Ganav - because then, bearing in mind the principle 'Dayo La'vo min ha'Din Liheyos ke'Nadun'), the Ganav would only be obligated to pay after having sworn falsely, like a To'en Ta'anas Ganav.

(b) So we cite Tana de'Bei Chizkiyah - who learns it from a "K'lal u'P'rat u'Ch'lal' (as we shall now proceed to explain).

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