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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 85

BAVA KAMA 85 (3 Cheshvan) - dedicated l'Iluy Nishmas Malka bas Menashe (and Golda) Krause, by her daughter, Gitle Bekelnitzky. Under both material and spiritual duress, she and her husband raised their children in the spirit of our fathers, imbuing them with a love for Torah and Yiddishkeit. Her home was always open to the needy, even when her family did not have enough to feed themselves.



(a) We reject Shmuel's father's interpretation of Tza'ar be'Makom Nezek (how much the Nizak would accept to have his hand cut off) on two scores, one of them, because that would incorporate all five things (and not just Tza'ar). The other is - because nobody would agree to suffer pain, even for money.

(b) The initial problem with assessing Tza'ar is - that having paid the Nizak for the Nezek, the arm is now the Mazik's to remove, so why should he have to pay again?

(c) We object to the suggestion that he pays the amount that a person would take ...

1. ... to sever an arm that was already cut to the point that it no longer served any purpose - on the grounds that there too, in addition to pain, there is also Bo'shes (because once the arm is severed, it will be fed to the dogs).
2. ... to cut off with a sword the arm that the king had already ordered to be cut off using ointment - on the grounds that a person does not take money to suffer increased pain.
(a) We finally establish the case of Tza'ar be'Makom Nezek as being the amount that a person would pay to sever his arm with ointment - that was destined to be cut off with a sword.

(b) When the Tana now says 'Kamah Adam Rotzeh *Litol* ... ' (rather than 'Kamah Rotzeh Adam *Liten* ... '), says Rav Huna Brei de'Rav Yehoshua - he means 'to take from the Mazik to pay the Nizak the amount that he would have payed to the king to commute his sentence from a sword to ointment.

(a) In a case where scabs have grown on a wound (as a direct result of the stroke), the Tana Kama in a Beraisa obligates the Mazik to pay, not only Ripuy, but She'ves, too. Rebbi Yehudah disagrees. According to him - the Mazik pays Ripuy, but not She'ves.

(b) The (latter) Chachamim say - that whoever is Chayav Ripuy is Chayav She'ves, and whoever is not, is not Chayav Ripuy either.

(c) The Rabbanan of Bei Rav establish the basis of their Machlokes as to whether the Nizak has a right to bind his wound (at the expense of the Mazik). The Rabbanan (the Tana Kama) holds that he has, whereas Rebbi Yehudah holds that he does so at his own risk. Yet he pays Ripuy - because the Torah repeats Ripuy ("ve'Rapo Yerapei").

(d) Rabah objects to their explanation however, on the grounds - that if the Mazik would not have the right to bind his wound, it would be illogical to obligate the Mazik to pay Ripuy.

(a) According to Rabah, everyone agrees that the Nizak has a right to bind his wound, and they argue over - whether he is permitted to bind his wound excessively.

(b) Rebbi Yehudah now learns by excessive binding exactly as we originally learned by regular binding. The Rabbanan agree that the Nizak does not have the right to bind his wound excessively. Nevertheless, they obligate the Mazik to pay She'ves as well as Ripuy - because, they say, the Torah compares She'ves to Ripuy ("Rak Shivto Yiten ve'Rapo Yerapei").

(c) The (later) Chachamim hold - that the Torah does indeed compare Ripuy to She'ves, and that consequently, just as the Mazik is Patur from paying She'ves, so too, is he Patur from paying Ripuy.

(d) They explain "Rapo Yerapei" like Tana de'Bei Rebbi Yishmael, who learns from the double Lashon - that a doctor has the authority to heal, despite the fact that Hashem delivered the wound.

(a) If the Pasuk "(Rak) Shivto Yiten ve'Rapo Yerapei" teaches us that the Mazik is obligated to pay Ripuy and She'ves for scabs that grew on account of the wound, we learn from the word "Rak" - that he is Patur from paying for scabs that are not the direct result of the wound.

(b) This is the opinion of the Tana Kama of another Beraisa. Rebbi Yossi b'Rebbi Yehudah there learns that the word "Rak" exempts the Mazik even if the scabs were the direct result of the wound. This could either mean - that he is Patur even from Ripuy (like the Chachamim in the previous Beraisa), or that he is Patur from She'ves, but Chayav Ripuy, like his father.

(c) We just learned from the word "Rak" that the Mazik is Patur from paying for scabs that grew independently of the wound. In order to justify the need for a Pasuk to exempt him, we establish the case - when the scabs grew as a result of the Nizak eating things that the doctor warned him not to eat (so that, if not for the wound, the scabs would not have grown).

(a) The Tana refers to a scab as 'Gargusni', which Abaye describes as - dead flesh.

(b) The cure for 'Gargusni' is Ahala, ve'Kira ve'Kalba - aloe (the name of a herb), wax and resin (which is found in barrels of wine).

(c) The Nizak is entitled to counter (if the Mazik declares that he ...

1. ... wishes to cure him himself) - that he sees him as a crouching lion whom he cannot trust.
2. ... plans to employ a doctor who will cure him free of charge) - that a doctor who cures for nothing is worth nothing.
3. ... will bring a doctor from overseas who will cure him for cheap - that a doctor who comes from overseas, knowing that he cannot later be held responsible for any mishaps, doesn't really care even if he makes his patient blind (and cannot therefore be trusted).
(d) And should the Nizak declare that he wishes to cure himself ...
1. ... and that the money should go to him - the Mazik has the right to counter - that he does not trust the Nizak, who will give himself excessive treatment, and charge him accordingly.
2. ... inviting the Mazik to fix a limit as to how much he is willing to pay - he can object on the grounds that, at the end of the day, he will treat himself carelessly and when he fails to improve, he will place the blame on him (for not giving him sufficient funds to do the job properly).
(a) We learn from "Petza Tachas Patza" - that the Mazik is obligated to pay Tza'ar, even when he has to pay Nezek, too.

(b) True, we need the Pasuk to teach us 'Shogeg ke'Meizid and O'nes ke'Ratzon' (in other words, the principle 'Adam Mu'ad Le'olam'). However - due to the fact that the Pasuk writes "Petza Tachas Patza", and not "Petza be'Patza", we learn two things from there.

(c) Similarly, Rav Papa learns from "ve'Rapo Yerapei" that the Mazik is obligated to pay Tza'ar, even when he has to pay Nezek, too. We reconcile this with Tana de'Bei Rebbi Yishmael, who, we just saw, learns from here, that a doctor has the authority to heal - by learning them both from the fact (had the Torah meant to teach us only the latter), then it would have written "ve'Rofei Yerapei". It writes "ve'Rapo Yerapei, in order to teach us both D'rashos.

(d) And assuming that the Tana Kama and the Chachamim (on the previous Amud) also hold like Tana de'Bei Rebbi Yishmael), they extrapolate the third Limud from the double Lashon (that the Mazik is Chayav to pay Ripuy even if the Nizak bound his wound, or if he bound it excessively) - from the fact that the Torah changes from "Rapo Rapo" or "Yerapei Yerapei" to "Rapo Yerapei".




(a) We just ascertained that the Torah obligates the Mazik to pay the four things even when he already pays Nezek. They must all apply even when he does not - because otherwise, we would not require a Pasuk to teach us that the Mazik is Chayav when he does.

(b) We already explained the case of Tza'ar she'Lo be'Makom Nezek in our Mishnah. The case of she'Lo be'Makom Nezek ...

1. ... by Ripuyis - when the Nizak is already in pain from a wound or a sore (which is healing by itself), and the Mazik applies a strong salve that leaves him with white skin.
2. ... by Sheves is - when he simply locks him in a room, and he is unable to go to work.
3. ... by Bo'shes is - when he spits in his face?
(a) We learned in our Mishnah that for She'ves, one reckons the Nizak as if he was a guard in a cucumber field. This pertains to a Nizak - whose arm was broken, because a man with a broken leg is incapable of guarding a field.

(b) One would reckon the She'ves of a Nizak whose ...

1. ... leg was broken - as if he was guarding a house?
2. ... whose eye was blinded - as if he was working on a mill-stone grinding the corn.
(c) A Mazik who deafened someone pays his entire value, incorporating the She'ves.

(d) He is Patur from paying She'ves independently - because once he pays his entire value, it is as if he has purchased him as a slave, and (work-wise) he may do with as he pleases.

(a) The problem with fixing She'ves as the wages of a guard in a cucumber field, for example, is - the fact that this is not necessarily what the Nizak used to do (he may have been a water-carrier or an errand-boy (for example), so why assess the She'ves differently.

(b) The answer to this Kashya is - that the Mazik has already paid the Nizak's value (based on the work he used to do before the stroke), and She'ves constitutes the minimum work that he could now have done following the stroke, for the period of his sickness.

(a) Rava asked whether Reuven who broke Shimon's arm, then his leg, before blinding him and finally deafening him (prior to any assessment having been made) - needs to pay for each item independently, or whether the assessment after having deafened him absolves him from paying for the rest.

(b) This She'eilah only affects the amount of Tza'ar and Bo'shes that Reuven has to pay. It does not affect ...

1. ... the Nezek - because it makes no difference whether he pays him for each item (each one of which detracts from his total value), or just for his total value from the beginning.
2. ... the Ripuy - because seeing as he was not cured during the course of events, the Mazik obviously becomes obligated to pay for all the doctor's bills, irrespective of when the assessment took place.
3. ... the She'ves - because, as we already learned, once the Nizak is assessed for his total value, the obligation to pay She'ves falls away.
(c) Rava then asks, whether, even assuming that, in the previous case, Reuven does not need to pay Shimon each individual sum of Tza'ar and Bo'shes - he might be Patur even if each individual item was assessed, only he had not yet paid for them.

(d) The outcome of Rava's She'eilah is 'Teiku'.

(a) Rabah asks whether She'ves ha'Pochsaso be'Damim (She'ves which diminishes the Nizak's value) is considered Nezek or not. The significance of 'She'ves ha'Pochsaso be'Damim' is - a temporary wound that causes the Nizak's value to depreciate, but only until it automatically heals.

(b) In spite of the fact that the Nizak's value has currently depreciated, the Mazik might nevertheless be Patur from paying Nezek - because a temporary Nezek falls under the category of She'ves, but not Nezek.

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