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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Kama 116

BAVA KAMA 116 - dedicated by Mr. Simon and Mr. Yitzi Joseph, of Manchester, to the memory of their late great uncle, Reb Yaakov ben Meir Eichen.



(a) According to Beis Shamai in a Beraisa, a barrel of wine that became Tamei must be poured out (because they are afraid of immediate Takalah). Beis Hillel - permit Ziluf (because they are not afraid of Takalah at all).

(b) Rebbi Yishmael b'Rebbi Yossi makes a compromise. According to the first Lashon, he says 'Te'aseh Ziluf' in the house, and 'Tishafech' in the field (because by the time he takes it into the house, we are afraid that he might drink it) - In the second Lashon, Rebbi Yishmael's criterion is whether it is old wine or new wine (as we just learned above).

(c) When the Chachamim said to Rebbi Yishmael 'Ein Hachra'ah Shelishis Machra'as' they meant - that seeing as Beis Hillel and Beis Shamai gave no indication that they even consider such a distinction, his opinion cannot be seen as a Hachra'ah (an official compromise [which would render it Halachah, as we shall now see]) but as his own opinion.

(d) It would be considered a Hachra'ah - if Beis Shamai had added 'even in the house ... ' and Beis Hillel, 'even in the field ... ', because then Rebbi Yishmael would combine with Beis Shamai in the field and with Beis Hillel in the house, to make up a majority in both cases.

(a) We learned in our Mishnah 've'Im Amar Atzil es she'Lecha ve'Atah Nosen Li Demei she'Li, Chayav Li'ten Lo'. The Beraisa rules that if an escapee from jail offers someone a Dinar to ferry him across the river - he is only obligated to pay the ferryman his regular wage, because it is obvious that, when he offered him a full Dinar, he was exaggerating, according to the circumstances.

(b) This poses a problem on our Mishnah - which obligates the owner of the barrel of honey to abide by the condition, and to pay the owner of the wine-barrel in full. Why can the owner of the honey too, not say that he was exaggerating according to the circumstances.

(c) Rami bar Chama establishes the Seifa of the Beraisa, which authorizes the ferryman to recoup his full losses - when he was busy fishing, and ferrying the escapee across the river caused him to lose his potential catch. And in such a case, the escapee cannot argue that he was exaggerating.

(d) Likewise in our Mishnah - where the owner of the barrel of wine lost his wine in the process of saving his friend's honey, the owner of the honey cannot claim that he was exaggerating, either.

(a) Having taught us the Din of how much one may claim, in the case of ...
1. ... the wine-barrel, the Tana nevertheless finds it necessary to add the case of the donkey - to teach us that even there, where his loss was automatic (and not caused by his own actions, as it is in the case of the wine-barrel), he is entitled to abide by the condition and to recoup his full losses).
2. ... the donkey ... he needs to add the case of the wine-barrel - to teach us that even there, where his loss is caused by his own actions, he cannot claim his full losses, unless he stipulated to that effect.
(b) Rav Kahana asked Rav what the din will be if the owner of the donkey worth a Manah, after having stipulated, went on to save the donkey worth two , and his own donkey was miraculously saved, whether he was still entitled to claim his full losses. To which Rav replied - that if Hashem in his mercy, spared him from a loss, that had nothing to do with the owner of the donkey that he saved, who remained obligated to pay him in full.

(c) We bear this out by citing an incident that occurred with Rav Safra. When his turn arrived to feed it his donkey to the lion that was guarding the animals of all the group - the lion, who had eaten all the other donkeys that it had been fed until then, declined to eat it.

(a) Rav Safra promptly - acquired the donkey from Hefker.

(b) Rav Acha was asking - that even though he had declared it Hefker for the lion, he had not declared it Hefker for the people (see Tosfos DH 'a'Da'ata').

(c) Ravina answered - that although Rav Safra did not need to declare the donkey Hefker, he did it in order to avoid the possibility that people, not knowing that it was not Hefker, would take it for themselves.

(a) Rav asked Rebbi what the Din would be if the owner of the donkey worth a Manah, after making the required stipulation, attempted to save his friend's donkey, but failed - to which Rebbi replied that it was quite obvious that he could only claim the remuneration for his work and no more.

(b) In a case where a Sheli'ach went to buy a cabbage or plums (or mountain-spinach) on behalf of a sick person, but upon his return, he discovered that the sick person had succumbed to his illness, the Beraisa rules - that he receives his wages in full.

(c) We reconcile this Beraisa with Rebbi's previous ruling - by differentiating between a case where the Sheli'ach performed his Shelichus successfully (and is prevented from completing it by external motives [such as the case of the Beraisa]), and where he failed (such as that of Rebbi).




(a) When the Tana of the Beraisa says that, if a caravan traveling in the desert is attacked by a band of robbers, 'they pay according to the money', he means - that when they come to terms with the robbers, each person pays according to what they are currently worth (the money or the goods that he has with him).

(b) To hire a guide (which involves life-danger) - they pay per head as well (half per head and half according to what they are currently worth).

(c) This is is not a hard and fast rule however - but is subject to local custom.

(a) A verbal agreement entered into by the donkey-drivers to provide any one of them whose donkey died, with a new donkey, is not binding - if it died due to the owner's negligence.

(b) If he requests money instead of a new donkey, they are entitled to refuse - because, when his turn arrives, he will place more effort into guarding the donkeys if he owns a donkey.

(c) This in itself, is obvious - only the Tana is speaking when he has a second donkey, and the Chidush is that he will guard the animals better if he owns two donkeys than if he owns only one.

(a) If a storm brews in mid-ocean, and the passengers or the crew members of a ship are forced to toss belongings overboard to lighten the load - they share the responsibility by weight (irrespective of whether they are transporting copper or gold or whatever).

(b) This is not a hard and fast rule however - but is subject to local custom.

(c) The rules of boats with regard to supplying a sailor whose boat got lost, follow the same pattern as those of donkey-drivers. The Tana adds however, that if the sailor lost his boat by taking it further into the river than the sailors normally venture, they are not obligated to provide him with a new one. This is not so obvious - because we are not speaking where he ventured into the middle of the river, but where in Nisan, when (as a result of the melting of the snows) the river has risen, and it is much deeper, they tended to sail closer to the river bank than in Tishri (when the river was shallower). And the Tana is speaking (not when the sailor concerned ventured into the middle of the river where sailors did not normally sail, but) when he traveled the two rope-lengths from the river-bank that they normally sailed in Tishri, in Nisan (when they sailed only one rope-length from the river-bank).

(d) The Chidush is - that this too, is considered negligence, even though, we might have excused him for going in Nisan, where he had been going for the last six months.

(a) If a caravan is traveling in the desert is attacked by robbers, and, after they have taken their loot, one of the travelers rescues it - he has acted on behalf of all of them, and each traveler reclaims what is his.

(b) The rescuer however takes all - if he stipulated that he intends to do so.

(c) In the case as it stands, assuming the travelers could ...

1. ... have saved their goods themselves - then even in the Seifa, each traveler would be permitted to reclaim his own.
2. ... not have done so - then even in the Reisha, the rescuer would be entitled to take all.
(a) Rami bar Chama establishes the Beraisa when they are partners, and the Chidush is - that a partner has the right to take his share of the proceeds whenever he wishes, but that until he does, everything is considered shared property. Consequently, in the Reisha, where he did not stipulate, whatever he saved, he saved on behalf of all the partners; whereas in the Seifa, where he stipulated that he was leaving the partnership, he saved it for himself.

(b) Rava establishes the Beraisa when the rescuer is employed by the other travelers to work for them, and the Chidush is - that an employee is permitted to retract even in the middle of the day. Consequently, in the Reisha, where he did not stipulate, he rescued the goods on behalf of all the travelers in his capacity as their employee; whereas in the Seifa, his stipulation indicates that he has retracted from his employment, in which case, seeing as his erstwhile employers are unable to save their goods themselves, he rescued them on his own behalf.

(c) The basic distinction between the answers of Rami bar Chama and Rava is - that whereas according to Rava, the Tana speaks when the owners were unable to save their goods themselves (as we explained), according to Rami bar Chama, he speaks even if they were.

(d) Rav Ashi establishes the Beraisa by anybody (partner, employee or anyone else), but the Tana speaks when the other travelers could have saved their goods with a lot of effort. Consequently - in the Reisha, where the rescuer did not stipulate, we assume that he saved them on behalf of their owners; whereas in the Seifa, where he did, he rescued them on his own behalf only.

(a) The Tana of our Mishnah states that if someone steals a field and it is stolen from him by Masikin (robbers) - he can say to the owner 'Harei she'Lecha Lefanecha', provided it is a common occurrence (for Anasin to claim people's fields (and it is not on account of him). But if the only took the field, because he had it, then he is obligated to replace it.

(b) The meaning of ...

1. ... "be'Matzor u've'Matzok" - is 'in trouble and distress'.
2. ... "Yeyarash ha'Tz'latzal" - is 'the locusts will inherit it'.
(c) In connection with 'Natluhah Masikin' in our Mishnah, Rav Nachman bar Yitzchak proves from here - that both the texts 'Masikin' and 'Matzikin' are equally correct.
(a) We can infer from the Reisha of our Mishnah ' ... Im Makas Medinah Hi, Omer Harei she'Lecha Lefanecha' - that had the Masikin come on account of the Gazlan, he would be Chayav to replace the field.

(b) The Tana finds it necessary to add the Seifa 'Im Machmas ha'Gazlan, Chayav Le'ha'amid Lo Sadeh Acher' - because 'Machmas ha'Gazlan' means that he did not actually steal the field, only that, having heard that the king's men were looking to rob fields, he pointed out this one to them.

(c) His Chiyuv is based on 'Diyna de'Garmi' (Tosfos 'DH Lo Tz'richa' [2]).

(d) In the second Lashon, we establish the Seifa when they actually forced him to divulge his fields, and he added this one to the list. In this Lashon, the damage was certain, whereas according to the first Lashon, it was a Safek.

(a) When someone divulged to robbers which storehouse of wheat belonged to the Resh Galusa, Rav Nachman ordered him to pay.
When Rav Huna bar Chiya asked Rav Nachman whether this was Halachah or a K'nas, he replied - that it was Halachah, as it is based on our Mishnah 'Im Machmas ha'Gazlan, Chayav Le'ha'amid Lo Sadeh Acher'.

(b) Rav Yosef, who was sitting behind Rav Huna bar Chiya at the time, queried him after Rav Nachman had left. He wanted to know - what difference it makes whether it was Halachah or K'nas.

(c) Rav Huna bar Chiya answered him - that if it was Halachah, we would extend it to all cases of a similar nature, but not if it was a K'nas 'mi'Kenasa Lo Gamrinan').

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