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Bava Kama 78



(a) We just explained that the word "O" in the Pasuk by Kodshim "Shor O Kesev" comes to exclude Kil'ayim. We learn from the 'Gezeirah-Shavah' ...
1. ..."*Tachas* ha'Shevet" (regarding Ma'aser Beheimah) from "*Tachas* Imo" (written by Kodshim) - that Kil'ayim is also invalid with regard to Ma'aser Beheimah.
2. ... "*ve'Ha'avarta* Kol Petter Rechem la'Hashem" (regarding Bechor Beheimah) from "Kol Asher *Ya'avor* Tachas ha'Shavet" - that it is also invalid with regard to Bechor.
(b) An alternative D'rashah to the latter is a direct Limud from the Pasuk "Ach Bechor Shor" - from which we extrapolate 'Ad she'Yehei Hu Shor u'Bechoro Shor (to preclude Kil'ayim).
(a) Having found independent D'rashos for all of the above, Rava's Binyan Av (invalidating Kil'ayim) pertains to Pidyon Petter Chamor, where the Torah writes in Bo "ve'Chol Petter Chamor Tifdeh be'Seh".

(b) This is the source of the Mishnah in Bechoros, which invalidates a lamb of Kil'ayim with regard to redeeming a donkey of Peter Chamor. The Tana there, also invalidates a calf, a wild animal, a Shechted lamb and a Coy.

1. A Coy is - the offspring of a cross between a Beheimah and a Chayah.
2. ... the reason for the P'sul of a lamb that has been Shechted is - because a Shechted lamb is not called a 'Seh'.
(a) Rebbi Elazar - permits the redemption of a Petter Chamor with a lamb of Kil'ayim.

(b) According to Rebbi Elazar therefore, we suggest that Rava's Binyan Av pertains to a non-Kasher animal that is born from a Kasher mother, but whose father is not Kasher either (e.g. a horse born from a cow, whose father is a horse [though we are dealing specifically with a lamb]). The problem with this explanation is - that a Kasher animal cannot become pregnant from a non-Kasher one.

(c) We solve the problem - by establishing it when the non-Kasher father itself was born (not from a non-Kasher species, but) from a sheep, which did not have split hooves (a Kalut [she'Parsosav Kelutos]), and like Rebbi Shimon, who does not consider it Kasher.

(a) This explanation cannot go according to Rebbi Yehoshua - who learns Rava's D'rashah from "Seh Kesavim ve'Seh Izim" (implying that both parents must be sheep [though it is unclear how Rava can argue with Rebbi Yehoshua]).

(b) Rebbi Yehoshua argues with Rebbi Shimon - inasmuch as, in his opinion, as long as both parents are Kasher, the child is Kasher too, provided the father has at least one Siman of Kashrus (e.g. it chews its cud, even if it a Kalut).




(a) The Tana Kama in the Mishnah in Temurah requires someone who declares a Neder to bring an Olah, to bring at least a lamb. According to Rebbi Elazar ben Azaryah - he is even permited to bring an Olas ha'Of (a pigeon or a young dove).

(b) In light of this Machlokes, Rava asks that, in the case of Reuven who stole the ox that Shimon had designated for his Olah - is he permitted to return a lamb, according to the Rabbanan, or even a bird, according to Rebbi Elazar ben Azaryah.

(c) Perhaps he may, because at the end of the day, the Ganav is paying back an Olah, with which the owner fulfills his obligation. He might nevertheless be obligated to return an ox - because of the owner's claim that he wishes to perform the Mitzvah in the best possible manner.

(d) Rava concludes that he may indeed return a lamb or even a bird. According to Rav Acha B'rei de'Rav Ika's version of Rava's statement - Rava simply stated the above, not in question and answer form.

(a) If the Ganav sells the stolen article 'except for a hundredth part of it', or if he is a part owner to begin with, he is Patur from Daled ve'Hey - because the Torah writes "u'Mecharo", and we extrapolate "u'Mecharo", 'Kulo' (but not if he sells only part of the animal).

(b) If, instead of Shechting it, he simply kills it - he is Patur from Daled ve'Hey, because "u'Tevacho" implies specifically Shechitah. (c) The same applies if he made ...

1. ... Nechirah - tearing it open from the nostrils down to the heart.
2. ... Akirah - tearing out the Simanim (the two pipes) rather than actually cutting them.
(a) Rav interprets 'except for a hundredth part of it' to mean except for any part of the animal which is permitted through Shechitah - to preclude a Ganav who sold everything but the skin, the horns or the fleece, who is Chayav.

(b) Levi says - even 'Chutz mi'Gizosehah' is Chayav.

(c) Levi's opinion tallies with that of the Tana Kama of the Beraisa, who says 'Machrah Chutz mi'Yadah ... Raglah ... Karnah ... Gizosehah, Einah Meshalem Arba'ah va'Chamishah'. The Beraisa continues 'Rebbi Omer, Davar ha'Me'akev bi'Shechitah, Eino Meshalem'

1. The Tana Kama interprets "u'Tevacho u'Mecharo" - literally and independently: a. everything must be Shechted, and b. everything must be included in the sale.
2. ... Rebbi interprets - a. "u'Tevacho" to mean that all major parts of the animal which would cause the animal to become a Neveilah (were they missing) must be intact at the time of the Shechitah (such as one of the two pipes, the thigh, the liver, or the intestines), and b. 'Mechirah Dumya li'Tevichah'. Note, see Sugya above 77b, where Rebbi Yochanan and Resh Lakish appear to argue over this point (Rashash there).
(d) The final opinion in the Beraisa is that of Rebbi Shimon ben Elazar. According to him, 'Chutz mi'Karnah', pays Daled ve'Hey; 'Chutz mi'Gizosehah', does not - because whereas the former is not destined to be removed from the animal before the Shechitah, the latter is.
(a) We reconcile Rav (who differentiates between 'Chutz mi'Yadah ve'Raglah' and Chutz mi'Karnah ve'Gizosehah') with the fact that none of the opinions of the Beraisa hold like him - by citing another Beraisa, where Rebbi Shimon ben Elazar supports his opinion 'Machrah Chutz mi'Yadah ... ve'Raglah, Eino Meshalem ... Chutz mi'Karnah ve'Gisosehah, Meshalem ... '.

(b) The reason of Rebbi Shimon ben Elazar in the second Beraisa (and Rav), where he differentates between the feet of the animal on the one hand, and its horns and fleece on the other - is that the former require Shechitah, whereas the latter do not (and like Rebbi, he learns 'Mechirah Dumya di'Tevichah).

(c) When Rebbi Shimon ben Elazar states two conflicting opinions in two Beraisos - it is (not Rebbi Shimon ben Elazar himself, but) two Tana'im who argue over what he said.

(a) The Tana of the Beraisa states that if someone steals an animal with a foot missing or which is lame or blind and Shechts it, he is Chayav Daled ve'Hey. Despite the fact that the animal is incomplete, this is not a question of "u'Tevacho" 'Kulo' - because the Ganav Shechted all that he stole.

(b) The Beraisa also obligates someone who steals an animal belonging to partners - but the Tana exempts partners who steal, from Dale ve'Hey.

(c) Rav Nachman tries to reconcile this Beraisa with another Beraisa 'Shutfin she'Ganvu, Chayavin', by establishing the latter, by a partner who stole from a third party, and the former, by one who stole from his partner - who is Patur because it is not "u'Tevacho" 'Kulo be'Isura'.

(d) Rava refutes Rav Nachman's explanation on the basis of another Beraisa which exempts a partner even when he steals from a third party, because it does not conform with "u'Tevacho" 'Kulo be'Isura', and the case in which the Tana obligates him is - when he Shechted a cow which he stole from a third party with his partner's consent.

(a) Rebbi Yirmiyah asked whether a Ganav is Chayav Daled ve'Hey if he stole an ox and sold it barring thirty days (during which time he retained the right to work with it, or 'bar mi'Melachtah' - meaning that he sold it permanently for the purchaser to Shecht, but he retained the right to work with it as long as it was alive.

(b) He also asked whether he would be Chayav if he sold a pregnant cow but retained the Ubar - a She'eilah according to those who hold 'Ubar La'av Yerech Imo Hi' (a fetus is not considered an intrinsic part of the mother), but not according to those who hold 'Ubar Yerech Imo' (in which case he would obviously be Patur).

(c) According to those who hold Ubar La'av Yerech Imo Hu, the Ganav might be Chayav Daled ve'Hey because the Ubar is intrinsically attached to the animal. He might nevertheless be Patur - because it stands to separate from its mother.

(d) Another reason to obligate the Ganav to pay Daled ve'Hey is - because it requires the Shechitah of the mother to permit it to be eaten.

(a) Rav Papa asked whether the Ganav will have to pay Daled ve'Hey if he subsequently cut off a limb and sold it. On the one hand, he did not sell the entire animal that he stole, on the other - when he sold the animal, he sold it in its entirety, retaining nothing.

(b) The outcome of the She'eilah is - Teiku.

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