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Bava Kama 84



(a) Rebbi Shimon bar Yochai learns that "Ayin Tachas Ayin" must mean Mamon - because otherwise, it would not be possible to punish a blind man who blinded his friend or a lame one who made him lame. And by punishing some people and not others, we would be contravening the Pasuk "Torah Achas Yih'yeh Lachem").

(b) We reject Rebbi Shimon's proof however, on the grounds that - not punishing someone whom one cannot be punished would not be considered a contravention of "Torah Achas ... " ...

(c) ... any more than the case of a T'reifah who murdered somebody and who cannot be sentenced to death ...

(d) ... because the witnesses, who testified about a man who, to all intents and purposes, was already dead, cannot become Eidim Zomemin.

(a) de'Bei Rebbi Yishmael learns 'Mamon' from the Pasuk "Kein *Yinasen* Bo" - since "Yinasen" has implications of Mamon.

(b) To reconcile this with the fact that (in the previous phrase, ("Ka'asher *Yiten* Mum ba'Adam") "Yiten" certainly does not mean Mamon - by explaining that although "Yiten" S'tam does not necessarily imply Mamon, here where it is superfluous (since the Torah just wrote "Kasher Yiten Mum ba'Amiso, Ka'asher Asah Kein Ye'aseh Lo") it is.

(c) And the Torah only writes "Ka'asher *Yiten* Mum ba'Adam", because it needed to write "Kein Yinasen Bo"?

(a) de'Bei Rebbi Chiya learns from the Pasuk there (in connection with Eid Zomem) "Yad be'Yad" - 'Davar ha'Niten mi'Yad le'Yad', (meaning that they only pay Mamon, rather than have their hands cut off).

(b) Despite the fact that "Regel be'Ragel" cannot be explained in the same way, we nevertheless Darshen "Yad be'Yad" like this - because, having already written "va'Asisem Lo Ka'asher Zamam La'asos le'Achiv", the entire phrase is superfluous ...

(c) ... and the Torah only writes "Regel be'Ragel" because it needed to write "Yad be'Yad".

(a) Abaye learns 'Mamon' from Tana de'Bei Chizkiyah, who Darshens from "Ayin Tachas Ayin, Nefesh Tachas Nefesh" - ve'Lo Ayin ve'Nefesh Tachas Ayin'. And if one were to interpret "Ayin Tachas Ayin" literally, there is always the fear that the Mazik might die in the process of removing his eye (which would be a case of 'Ayin ve'Nefesh Tachas Nefesh').

(b) We reject Abaye's proof too, supporting our point from the Mishnah in Makos, which states - that if Beis-Din assessed someone for Malkos, and in spite of that assessment, he died whilst Malkos was being administered, they are absolved from guilt (because they did their duty).

(c) Similarly, in our case - before removing the Mazik's eye, they would assess that he could survive. If in spite of that assessment he died, they are absolved from guilt (because they did their duty).

(a) Rav Z'vid in the name of Rava learns 'Mamon' from the D'rashah of "Petza Tachas Patza", and Rav Papa in the name of Rava learns it from the D'rashah of "ve'Rapo Yerapei". The two respective D'rashos from these two Pesukim are - that the Mazik must pay for the Tza'ar and for the doctor's fees, even when there is Nezek, too.

(b) Rav Z'vid and Rav Papa learn 'Mamon' from there - because if the Mazik's was sentenced to have his limb removed, then why would we need a Pasuk to obligate the Mazik Tza'ar and Ripuy, seeing as he would automatically experience pain and require medical attention, just as the Nizak did?

(c) We reject their respective proofs however - by establishing the Pasuk of Tza'ar and Refu'ah by a Mazik who did not suffer the same degree of Tza'ar or need the same medical attention as the Nizak, and the Pasuk comes to sentence the Mazik to the difference.

(a) The last proof for 'Mamon' is that of Rav Ashi. who initially learns from the 'Gezeirah-Shavah' "Ayin Tachas Ayin", "Shalem Yeshalem Shor Tachas ha'Shor" (that just as the latter Pasuk refers to Mamon, so too, the former). We query this however, on the grounds that it would be more likely to derive the 'Gezeirah-Shavah' from Adam - from the Pasuk "ve'Nasasta Nefesh Tachas Nafesh", which refers literally to Miysah (in which case "Ayin Tachas Ayin" will be taken literally too, to mean a limb for a limb).

(b) We might nevertheless prefer to learn the 'Gezeirah-Shavah' from the Pasuk by Shor - in order to learn Nizakin from Nizakin (as we saw on the previous Daf).

(c) Due to the doubt from which "Tachas" to learn it, Rav Ashi switches to a third "Tachas", which refers to both Adam and Mamon - to "Tachas Asher Inah" (in connection with a case of rape - in Ki Seitzei).

(a) Rebbi Eliezer states in a Beraisa "Ayin Tachas Ayin" Mamash. This cannot be correct - in view of all the D'rashos that we have just cited, proving that "Ayin Tachas Ayin" must mean Mamon.

(b) Rabah explains Rebbi Eliezer to mean that the Mazik is not assessed like an Eved, which Abaye queries - on the grounds that if that were so, how would he be assessed, seeing as a ben Chorin does not have a value.

(c) So Rav Ashi explains that what Rebbi Eliezer means - is that we assess not the Nizak, but the Mazik (which explains the word 'Mamash' used by him [since it resembles paying for the Nizak's eye with his own]).

(a) When the case of a child whose hand had been bitten off by a donkey was brought before Rav Papa bar Shmuel, he ruled - that he had to pay four things (see Tosfos DH 'Ziylu').

(b) He explained to Rava that he meant four things besides Nezek. When Abaye pointed out that the damage had been done by a donkey (and not by a human) - he told him to assess him like an Eved (though initially, he omitted to add 'like an Eved').

(c) When the father refused to assess him like an Eved because he considered it undignified - Rav Papa pointed out to him that he had no right to forego his son's rights, on the basis of this argument.

(d) To which the father replied - that he would appease his son when he grew up.

(a) When the case of the child whose hand had been chewed by an ox came before Rava, he ruled that they should assess the child like an Eved. They queried him however, on the basis of another statement of his - where he said that anyone who needs to be assessed like an Eved - cannot claim his due in Bavel.

(b) Rava reconciles his current ruling with his other statement - by establishing the assessment (not in order to claim, but) in anticipation of the Nizak seizing it without asking Beis-Din (in which case, he would be permitted to keep it).

(c) Rava's latter statement tallies with another statement of his. He stated that the damage done to ...

1. ... an ox by an ox or to an ox by a human - may be claimed in Bavel.
2. ... a human by a human or to a human by an ox - may not.
(d) The reason of the latter ruling cannot be ascribed to the fact that the Torah uses the word "Elohim" ("Ad ha'Elohim Yavo D'var Sheneihem" [which in this context, means 'expert judges']) - because in that case, the two cases in the former ruling are contained in that Parshah, too.



(a) We assume that there are no expert judges in Bavel - because the definition of an expert judge is one with Semichah, and there is no Semichah in Bavel.

(b) We suggest that 'the damage to an ox by an ox and to an ox by a human' is Chayav because of 'Shelichusaihu ka'Avdinan' like by Hoda'os and Halva'os' - (when two witnesses testify that Reuven admits that he owes Shimon money or when there are two witnesses to that effect, respectively), where Beis-Din in Bavel will issue a ruling even though they do not have Semichah, because they are doing the job of Semuchim.

(c) We think at this stage that the reason that 'the damage of a human by a human and to a human by an ox' is Patur in Bavel is because the amount needs to be assessed. We reject this explanation however, on two scores, one of them because in the former case, as well as in the latter, it is easy to go and find out the market value of the Nizak in the market (so that *the initial lack of knowledge of his value is not really a criterion*). And we reject it *even if it were* - because how would we then explain the fact that the payment of Kefel and Daled ve'Hey is not enforced in Bavel (even though the amount is known)?

(d) Neither is the criterion solely the fact that we do not judge K'nasos in Bavel, because 'the damage of a human by a human and to a human by an ox' is not a K'nas. Perhaps we suggest, whatever is uncommon, is not judged in Bavel, but we refute that too, on the basis of Rav Papa, who, when confronted with a case involving Bo'shes - ordered the Mazik to pay four hundred Zuz.

(a) Rav Papa is proved wrong however, from a statement of Rav Nachman (who was famed for his expertise in money-matters). When Rav Chisda consulted Rav Nachman about a how much Bo'shes to pay in a certain case that came before him (in Perek ha'Meni'ach) the latter retorted - 'Chisda Chisda, K'nasa ka'Magbis be'Bavel'?

(b) We finally conclude that we only claim in Bavel cases (of Mamon, not of K'nas) with two specifications - a. that they are common and b. that they involve a real loss of pocket.

(c) That explain why, in Bavel, we do not claim ...

1. ... 'the damage of a human by a human and to a human by an ox' - which is uncommon.
2. ... Bo'shes - which does not involve a real loss of pocket.
(d) When Rava said that a Shor that damaged is not subject to claim in Bavel, we know that he meant 'Shor de'Azik Shor', because if he was referring to Shor de'Azik Adam, why did he say *Shor* de'Azik, seeing as even *Adam* de'Azik Adam does not apply in Bavel either?
(a) We reconcile this statement of Rava with his previous statement (that Shor de'Azik Shor does pay in Bavel) - by establishing that case by a Shor *Mu'ad* that damaged, whereas the current case pertains to a Tam.

(b) Rava also said that there is no such thing as a Mu'ad in Bavel - because seeing as a Shor Tam that damages is not judged, how can the animal ever become a Mu'ad?

(c) To explain the discrepancy that on the one hand, there is no such thing as a Shor Mu'ad in Bavel, and on the other, Rava speaks about claiming from a Mu'ad in Bavel, we try to establish the case of a Mu'ad in Bavel when either the Mu'ad ox or the Beis-Din of Semuchin was brought from Eretz Yisrael to Bavel. We reject both suggestions however, due to the fact neither is common, and we learned earlier, that whatever is uncommon, cannot be claimed in Bavel.

(d) The case of an ox that is a Mu'ad in Bavel to which Rava refers must therefore be - that of Shein ve'Regel (which did not *become* a Mu'ad, but was one all the time).

(a) Rebbi argues with ben Azai in a Beraisa. Assuming that Rebbi interprets "Kevi'ah" to mean a burn without a real wound, when ...
1. ... he says 'Kevi'ah Ne'emrah Techilah', he means - that Kevi'ah on its own implies even a burn without a wound. Consequently, when the Torah adds Chaburah', it means to indicate that one is only Chayav for pain when there is a wound.
2. ... ben Azai (who interprets ''Kevi'ah'' to mean a burn with a wound) says 'Chaburah Ne'emrah Techilah', he means - that "Chaburah" comes to indicate that "Kevi'ah" means a burn without a wound.
(b) This is the opinion of Rava, according to whom - the author of our Mishnah (which obligates the Mazik to pay for pain without a wound) is ben Azai.

(c) Rav Papa refutes Rava's explanation with the words 'Ipcha Mistavra' - meaning that it would be more logical to explain their respective statements to fit their final opinions than to the initial meaning of the word Kevi'ah, as Rava explained.

(d) Based on the fact that Rebbi interprets "Kevi'ah" to mean a burn with a wound ...

1. ... when he says 'Kevi'ah Ne'emrah Techilah', he means that seeing as the Torah begins with "Kevi'ah", implying a burn with a wound, "Chaburah" comes to indicate that in this case, it comes to include a burn without a wound (in which case, he is the author of our Mishnah).
2. ... when ben Azai says 'Chaburah Ne'emrah Techilah', he means - that, seeing as "Kevi'ah" implies even a burn without a wound, "Chaburah" (which is not superfluous), must come to indicate that here, one is only Chayav for a burn with a wound.
(a) Alternatively, according to both opinions, Kevi'ah could mean either a burn with a wound or a burn without one, and they argue over a 'K'lal u'P'rat' which are not together. The K'lal in this case, is "Kevi'ah", and the P'rat, "Chaburah".

(b) If they were together - we would consider them a regular 'K'lal u'P'rat', and based on the principle 'Ein bi'Ch'lal Ela Mah she'bi'P'rat', we would require a burn with a wound.

(c) ben Azai considers them as if they were together, and the burn must incorporate a real wound. The Rabbanan say - that this cannot be considered a 'K'lal u'P'rat u'Ch'lal', in which case "Kevi'ah" means a burn without a wound, and "Chaburah" a burn with one.

(d) According to Rebbi, the Torah needs to write "Chaburah to teach us - that even there is a wound, the Mazik still pays for the pain (and we do not apply the principle 'Mishum Rish'ah Achas Atah Mechayvo ... ').

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