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Bava Kama 71

BAVA KAMA 71 (Sukos) - dedicated by Rabbi Eli Turkel and his wife. May they be blessed with much Nachas from their children and grandchildren and may all of their prayers be answered l'Tovah!



(a) We learned in our Mishnah 'Tavach u'Machar be Yom ha'Kipurim, Chayav Dale ve'Hey'. Based on the fact that Chayvei K'riysus are subject to Malkus, the problem with this is - that it contravenes the principle 'Ein Lokeh u'Meshalem' )a person canot be receive two punishments for the same sin.

(b) To answer this Kashya, we establish our Mishnah - like Rebbi Meir, who holds 'Lokeh u'Meshalem'.

(c) Rebbi Meir says in the Mishnah in Makos that if witnesses testified that Reuven owed Shimon two hundred Zuz and then became Zomemin, they receive Malkos as well as having to pay - because the obligation to pay and the La'av of false testimony stem from two different Pesukim.

(d) Even though the author of our Mishnah is Rebbi Meir, the Ganav is not Chayav Daled ve'Hey, he stole and Shechted on Shabbos - because although he holds Lokeh u'Meshalem, he does not hold Meis u'Meshalem.

(a) Rebbi Meir says in a Beraisa 'Ganav ve'Tavach be'Shabbos, Ganav ve'Tavach la'Avodah-Zarah, Ganav Shor ha'Niskal u'Tevacho, Meshalem Arba'ah va'Chamishah' - the Rabanan exempt him from paying.

(b) In light of what we just learned (that 'Meis u'Meshalem Leis Lei') - Rebbi Yochanan quoted as explaining Rebbi Meir's statement 'Ganav ve'Tavach be'Shabbos ... Meshalem ... ' - by establishing it, not when the Ganav Shechted the animal himself, but when he engaged a Sheli'ach to do it for him (in which case, the Sheli'ach is Chayav Miysah, and the Ganav pays Daled ve'Hey.

(c) Rava learns from the Pasuk "u'T'vacho O Mecharo" - that just as Mechirah requires a second person for the Ganav to be Chayav Daled ve'Hey, so too, is the Ganav Chayav Daled ve'Hey if the Tevichah is performed by someone else (i.e. a Sheli'ach). Otherwise, it would be difficult to understand how Reuven can be Chayav for an act performed by Shimon (due to the principle 'Ein Sheli'ach li'D'var Aveirah').

(d) de'Bei Rebbi Yishmael learns from "u'Tevacho *O* Mecharo", and de'Bei Chizkiyah from "Tachas" - that one is Chayav Daled ve'Hey if the Ganav's Sheli'ach Shechts the animal.

3) Mar Zutra asked how it is possible for the Ganav to be Chayav Daled ve'Hey when his Sheli'ach Shechts the animal, considering that he is not Chayav when he himself Shechts it, to which Rav Ashi replied - that he is not Patur per se, but because he is Chayav a more stringent punishment. Consequently, there where the more stringent punishment is not applicable, it stands to reason that he should be Chayav Daled ve'Hey.


(a) We just cited Rebbi Meir in the Beraisa 'Ganav ve'Tavach be'Shabbos, Ganav ve'Tavach la'Avodah-Zarah, Ganav Shor ha'Niskal u'Tevacho, Meshalem Arba'ah va'Chamishah', whereas the Rabanan exempt him from paying. The Rabbanan's reason is - because the author of the Beraisa is Rebbi Shimon, who holds 'Shechitah she'Einah Re'uyah is not considered a good Shechitah.

(b) 'Ganav ve'Tavach la'Avodah-Zarah' be considered Isurei Hana'ah, because although one cannot render somebody else's animal forbidden - verbally, or even by bowing down to it, performing an idolatrous deed on the animal itself such as Shechitah in the name of Avodah-Zarah, does render it Asur.

(c) The above reason also apply to the first case 'Ganav ve'Tavach be'Shabbos' because Rebbi Shimon holds like Rebbi Yochanan ha'Sandlar, who holds that if someone cooks on Shabbos be'Meizid - that dish is forbidden forever for anyone to eat.

(d) The Mishnah in Chulin says that if someone Shechts an animal on Shabbos - the Shechitah is valid.

(a) Rebbi Meir says 'ha'Mevashel be'Shabbos be'Shogeg, Yochal, be'Meizid, Lo Yochal'. He is referring to eating the cooked dish on Shabbos itself (from Motza'ei Shabbos onwards, according to Rebbi Meir, everything is permitted).

(b) In the Seifa, where he cooked be'Meizid - nobody is permitted to eat it on the same day, neither the person who transgressed Shabbos nor anyone else.

(c) be'Shogeg, Rebbi Yehudah forbids even others to eat it on the same day. When it was cooked be'Meizid - then the person who transgressed is forbidden to eat it forever, whereas others may eat it already on Motza'ei Shabbos.

(a) Rebbi Yochanan ha'Sandlar learns from the Pasuk in Ki Sisa ...
1. ... "u'Shemartem es ha'Shabbos *Ki Kodesh Hi* Lachem" - that even others are forbidden to eat it ever ('Ma'aseh Shabbos Asur').
2. ... "Ki Kodesh Hi *Lachem*" - that it is not Asur be'Hana'ah.
(b) In the case of a Shogeg - he holds that others may eat the cooked dish as from Motza'ei Shabbos, but not the person who transgressed.

(c) Rav Acha and Ravina argue over Ma'aseh Shabbos according to Rebbi Yochanan ha'Sandlar. One of them learns that it is d'Oraysa, as we just explained. The other one learns from "Kodesh Hu" - that *Shabbos* is Kodesh, but not Ma'aseh Shabbos.

(d) One cannot ask how according to the one who holds that it is only mi'de'Rabbanan, the Rabbanan in the Beraisa that we quoted earlier exempt someone who Shechts on Shabbos from Daled ve'Hey - because in fact they pertain to the other two cases in the Beraisa 'la'Avodah-Zarah' and 'Shor ha'Niskal', as we explained, but not to Ganav ve'Tavach be'Shabbos'.




(a) We ask why, according to Rebbi Meir in the Beraisa, the Ganav is Chayav Daled ve'Hey for Shechting the stolen animal to Avodah-Zarah, seeing as, once he makes the initial cut to Avodah-Zarah, and the rest is Asur be'Hana'ah - and Isurei Hana'ah are considered ownerless (whereas the Chiyuv Daled ve'Hey is confined to Shechting the animal belonging to the person from whom one stole it).

(b) To ask such a Kashya, we have to assume - that 'Yeshnah li'Shechitah mi'Techilah ve'Ad Sof' (Shechitah constitutes the entire cutting process from beginning to end [and not just the final cut that kills the animal]).

(c) He is not already Chayav Daled ve'Hey for the initial cut - because, as we will see later, the entire Shechitah must be performed be'Isur.

(d) Rava answers the Kashya - by establishing the Mishnah when the Ganav specifically stated that he only intended to worship Avodah-Zarah with the final part of the cut (in which case the entire Shechitah was performed on the animal belonging to the owner.

(a) We ask the same Kashya on the next case in the Beraisa ('Ganav Shor ha'Niskal ... '). And we answer that the Tana speaks about an animal that became a Shor ha'Niskal in the house of a Shomer, from where it was stolen. And the Ganav is Chayav Daled ve'Hey because Rebbi Meir holds like ...
1. ... Rebbi Ya'akov, who says - that if a Shomer returns the animal that became a Shor ha'Niskal by him to the owner, he has fulfilled his duty and is exempt from paying for the damage.
2. ... Rebbi Shimon, who says - 'Davar ha'Gorem le'Mamon (something which has no intrinsic value to the owner, but which saves him from having to pay for it as long as he is able to return it intact), ke'Mamon Dami'. In other words, since the article concerned is worth money to the person who has it, it is considered as if it was his article.
(b) Rebbi Shimon is speaking about paying Kefel and Daled ve'Hey for stealing and Shechting 'Kodshim she'Chayav be'Acharayusan' from the owner.
1. 'Kodshim she'Chayav be'Acharayusan' is - Kodshim which the owner is obligated to replace (i.e. Kodshim which he declared by saying 'Harei Alai', in which case the obligation is on *him*, rather than on the animal that he ultimately designates).
2. ... 'Kodshim she'Eino Chayav be'Achrayusan' is - Kodshim which he is not obligated to replace (i.e. Kodshim which he declared by saying 'Harei Zu', in which case, it is the designated animal which is Kadosh, and there is no obligation on him to replace it should anything happen to it).
(a) Rav Z'vid from Neherda'a queried establishing our Mishnah like Rebbi Meir and not like Rebbi Shimon - because, the fact that Rebbi Shimon argues in the last two cases in the Mishnah (T'reifah and Chulin ba'Azarah), implies that he concurs with the rest of it.

(b) Rav Kahana refute his Kashya - on the grounds that the statement of Rebbi Shimon pertains specifically to the final section of the Mishnah, precluding 'Tavach u'Machar li'Refu'ah ve'li'Kelavim', with which Rebbi Shimon concurs (because it is a Shechitah that is fit to eat (as we explained in the Mishnah).

(a) Rava asked Rav Nachman what the Din will be if a Ganav stole and Shechted a cow belonging to two partners and confessed to one of them - if subsequently, two witnesses testified independently that this is what he did. Rava wanted to know whether he would have to pay half of the Daled ve'Hey to the second partner.

(b) The basis of the She'eilah is - whether when the Torah writes "Chamishah Bakar ... ", it includes 'Chamishah Chatza'ei Bakar', or whether it means specifically "Chamishah Bakar" (a full five-fold and not half).

(c) Rav Nachman's initial reply was - 'Chamishah Bakar, Amar Rachmana, ve'Lo Chamishah Chatza'ei Bakar'.

(d) We learned in our Mishnah 'Ganav mi'Shel Aviv ve'Tavach u'Machar ve'Achar-Kach Meis Aviv, Meshalem Tashlumei Arba'ah va'Chamishah'. This poses a Kashya on Rav Nachman - because, if as we assume, it was his brothers who took him to Beis-Din, then seeing as he himself inherits a portion (from which he is obviously Patur from paying), it should be no different than the previous case where the Ganav confessed to one of the owners, and according to Rav Nachman, he ought to be Patur.

(a) We answer that the Tana speaks when the Ganav's father had already taken his son to Beis-Din before his death, in which case, the animal belonged entirely to the father, and the son is obligated to pay the full Arba'ah va'Chamishah to him. But then, we ask on the Seifa 'Ganav mi'Shel Aviv u'Meis, ve'Achar-Kach Tavach u'Machar, Eino Meshalem ... ' - the Tana should rather have presented the same case as the Reisha (even when he Shechted or sold it before his father's death), but when the father had not yet taken his son to Beis-Din when he died.

(b) The very next morning Rav Nachman changed his mind, and Darshened "Chamishah Bakar", 'va'Afilu Chamishah Chatza'ei Bakar'.

(c) The reason that he gave for not answering correctly the night before was - that he not eaten meat, meaning that he had not yet thought the matter out properly (see also Tosfos).

(d) According to Rav Nachman's conclusion, despite the fact that the son is Chayav to pay even Chamishah Chatza'ei Bakar in the Reisha, he is Patur from paying in the Seifa - because seeing as he only Shechted it after his father's death (in which case, he was a partner in the cow), the Shechitah was not performed fully be'Chiyuv.

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