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Bava Kama 4
BAVA KAMA 4 (11 Av) - dedicated by Eitan Fish in memory of his illustrious
ancestor, Hagaon Rav Yitzchak Blazer ("Reb Itzele Peterburger"), author of
"Kochevei Or" and "Pri Yitzchak" and one of the foremost Talmidim of Hagaon
Rav Yisrael Salanter, Zatza"l. Reb Itzele passed away on 11 Av 5667 (1907)
in Yerushalayim.
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1) [line 8] SHEMA YAKNITENU RABO - lest his master anger him
2) [line 8] GADISHO SHEL CHAVEIRO - a mound of stalks of grain that belongs
to a fellow Jew
3) [line 9] ME'AH MANAH - one hundred Manah (1 Manah = 100 Zuz = the value
of 480 grams of silver)
4a) [line 20] MU'ADIN MI'TECHILASAN - those Avos Nezikin that always (even
for the first three times) pay [in full] as a "Mu'ad" (one who is expected
to inflict damage)
b) [line 20] TAMIN ULEVA'SOF MU'ADIN - those Avos Nezikin, the
classification of which changes from a "Tam" to a "Mu'ad" (after they
inflict damage for the third time. A Tam pays for half of the damages while
a Mu'ad pays for the full damages)
5) [line 22] HA KETANI SEIFA - (source -- Mishnah below, Daf 15b)
6a) [line 24] NIZKEI MAMON - the damages caused by one's possessions
b) [line 25] NIZKEI GUFO - the damages caused by one's person
7) [line 28] KOFER
(a) SHOR HA'MU'AD - An ox that gores two times is still referred to as a
Tam. The owner only pays half the value of the damages that his ox causes
through goring. If the ox gored three times and the owner was informed and
warned to guard his ox each time, the ox is termed a Mu'ad and from then on
the owner has to pay the full value of the damages that his ox causes
through goring.
(b) CHIYUV KOFER - If a person's Shor ha'Mu'ad kills another person, the
owner of the ox is Chayav Misah b'Yedei Shamayim and the ox is put to death
by stoning. He can *redeem* himself by paying Kofer to the children or heirs
of the dead man, as the verse states, "v'Im Kofer Yushas Alav, v'Nasan
Pidyon Nafsho." (Shemos 21:30). The amount paid as Kofer is defined as
either the owner's value, or the dead man's value, according to the various
opinions of the Tana'im (Makos 2b). If the ox kills a slave, the Kofer is 30
Sela'im and it is paid to the slave's owner.
8) [line 30] ARBA'AH DEVARIM CHOVEL
A person who wounds his fellow Jew (Chovel b'Chaveiro), is obligated to pay
five payments, i.e. four payments in addition to Nezek, which one must
always pay for damages. The five payments are:
1. NEZEK (Damages; also known as Pegam) - If one causes damage to the person
of a fellow Jew, such as blinding his eye, cutting off his hand or breaking
his foot, Beis Din assesses the damages that he caused based on the
depreciation such damages would cause to a slave on the slave market.
2. TZA'AR (Pain) - The payment for pain inflicted is evaluated as the amount
that the injured person would be ready to pay to have the identical injury
inflicted in a painless manner (Bava Kama 85a). Pain payments are due even
if no other damage (other than the pain) was inflicted -- for example, if
one person burned another's fingernail without causing a wound (Mishnah,
ibid.). The amount of this payment ultimately depends upon the physical and
financial situation of the injured person (RAMBAM Hilchos Chovel u'Mazik
2:9).
3. RIPUY (Medical expenses) - He must pay all medical costs until the
injured person heals completely from his wounds.
4. SHEVES (Unemployment) - He must pay unemployment for the duration of the
injured person's recovery. Sheves is evaluated as if the injured person is
protecting a pumpkin patch from birds, a job that requires only minimal
exertion and can be accomplished even by an invalid. (The money that the
injured person loses due to his permanent handicap, though, is covered by
the Nezek payment.)
5. BOSHES (Shame) - Boshes is evaluated based on the status of the person
who caused the embarrassment and the status of person who was embarrassed.
According to most opinions, the shame caused *by* an undignified person is
greater than the shame caused by an average or dignified person (YERUSHALMI
Kesuvos 3:8, RASHI to Bava Kama 83b, BARTENURA to Kesuvos 3:7, RAMBAM
Hilchos Chovel u'Mazik 3:1, TUR Choshen Mishpat 420 and SHULCHAN ARUCH CM
420:24). Others rule that the shame caused by an *average* person is greater
than the shame cause by an undignified or a dignified person (RASHI to
Kesuvos 40a. The RAN rules that this is the Halachah in all cases except for
Ones and Pituy, which follow the previous opinion). With regard to a person
who was embarrassed, shame caused *to* a dignified person is greater than
the shame that an average or undignified person suffers (Bava Kama ibid.).
9) [line 33] KEIVAN D'IYA'AD, URCHEI HU - since it has become a Mu'ad [after
causing the same type of damage three times, this is a sign that its nature
has changed and] it is now its manner [to be a harmful and injurious animal]
10) [line 34] KEIVAN D'CHAYIF U'FASHIT - since he bends and stretches out
[his limbs while he is sleeping]
11) [line 37] KARNA - the name of an Amora who lived at the time of Rav and
Shmuel
4b---------------------------------------4b
12) [line 3] "KI'KDO'ACH ESH HAMASIM, MAYIM TIV'EH EISH..." - "As when a
bonfire burns, a fire that causes water to boil, [You made Your Name known
to Your adversaries, that the nations may tremble at Your presence!]"
(Yeshayah 64:1)
13a) [line 3] MI CHESIV "MAYIM NIV'U"? - is it written, "water boils
(destroys) fire" (with the verb "Niv'u" in the plural, matching the plural
form of water, "Mayim")?
b) [line 4] "TIV'EH ESH" KESIV! - "fire that causes water to boil" is
written (with the word "Tiv'eh" in the singular form)!
14) [line 12] SHOMER CHINAM - One of the "Four Watchmen" listed in Bava
Metzia (Daf 93a), the Shomer Chinam is one who watches his friend's item for
no reimbursement. He is liable for damages only in cases of Peshi'ah
(negligence), but not in cases of theft or loss, and certainly not in a case
of Ones (an unavoidable accident).
15) [line 12] SHO'EL - One of the "Four Watchmen" listed in Bava Metzia
(ibid.), the Sho'el, borrower, is one who borrows an item from his friend
and is obligated to take care of it. He is liable for damages in cases of
Peshi'ah (negligence), theft or loss, and Ones (an unavoidable accident).
(He is exempt from damages only in a case of "Meisah Machmas Melachah," when
the item was damaged in the normal manner of usage.)
16) [line 12] NOSEI SACHAR - One of the "Four Watchmen" listed in Bava
Metzia (ibid.), the Nosei Sachar, or Shomer Sachar, is one who is paid to
watch an article. He is liable for damages in cases of Peshi'ah
(negligence), theft or loss, but is not liable in a case of Ones (an
unavoidable accident).
17) [line 13] SOCHER - One of the "Four Watchmen" listed in Bava Metzia
(ibid.), the Socher, or renter, is one who pays money to rent an item from
his friend. He is liable for damages in cases of Peshi'ah (negligence),
theft or loss, but is not liable in a case of Ones (an unavoidable accident)
(RASHI). (There is actually a Machlokes in Bava Metzia whether the Socher
has the status of the Nosei Sachar, or the status of a Shomer Chinam).
18) [line 13] NEZEK - see above, entry #8:1
19) [line 13] TZA'AR - see above, entry #8:2
20) [line 13] RIPUY - see above, entry #8:3
21) [line 13] SHEVES - see above, entry #8:4
22) [line 13] BOSHES - see above, entry #8:5
23) [line 14] TELEISAR - thirteen
24) [line 17] UL'REBBI OSHAYA NAMI, HA TANI LEI ADAM? - and according to
Rebbi Oshaya as well (who mentions "Adam" in his list of Nezikin), doesn't
the Mishnah already mention "Adam" (according to Rav, who interprets
"Mav'eh" of the Mishnah to mean "Adam")?
25) [line 29] TASHLUMEI CHEFEL - a thief's double restitution
(a) If a thief surreptitiously steals an object from a fellow Jew, and is
found guilty of the theft in court based on the testimony of valid
witnesses, he must return the object (if it is still in its original state)
or its value (if it is not) to its owner (Vayikra 5:23). In addition, the
thief is obligated to pay the victim of the theft the value of the stolen
object a second time. Restitution of the value of the stolen object is
called "Keren," and the additional payment is known as "Kefel."
(b) Only a thief ("Ganav") who steals surreptitiously pays Kefel, and not a
robber ("Gazlan"), who brazenly burglarizes and takes the possessions of
others by force. Chazal explain that the Torah punishes a thief more
stringently than a robber because of the disrespect he shows for the Creator
by taking care to avoid the eyes of man, while not being bothered in the
least by the eye of the One Above that is constantly watching (Bava Kama
79b).
(c) A thief does not pay Kefel unless he makes a "Kinyan," an act of
acquisition, on the object that he steals (e.g. by lifting it up, bringing
it into his own property, drawing it towards himself in a semi-secluded
area, etc.). If he simply broke or ruined another person's object without
making a Kinyan on it first, he is not considered to be a "Ganav" but a
"Mazik" ("one who causes damage"), and he does not pay Kefel.
(d) Kefel, like any other payment that involves over-compensation for a
monetary loss, is considered a "Kenas" (penalty) rather than "Mamon"
(compensation). As is true of every Kenas, a thief does not have to pay
Kefel if he admits to his theft of his own accord. Only if witnesses testify
to his guilt in court must he pay. If he admits to the theft of his own
accord, and later witnesses testify to his guilt in court, the Amora'im
argue as to whether or not he must pay the Kefel (Bava Kama 74b-75a -- he is
exempted from payment, according to the lenient opinion, only if his
admission took place under specific circumstances). Until he is obligated to
pay the Kefel in court, the thief is fully exempt from paying Kefel, and
does not even have a moral obligation to pay it on his own accord (RASHBA
Bava Kama 74b, see also RAMBAN in Milchamos at the end of the third Perek of
Kesuvos).
26) [line 29] TASHLUMEI ARBA'AH VA'CHAMISHAH - a thief's quadruple and
quintuple restitution for the theft and slaughter or sale of a sheep or ox,
respectively
(a) If a thief surreptitiously steals an object from a fellow Jew, and is
found guilty of the theft in court based on the testimony of valid
witnesses, he must return the object (if it is still in its original state)
or its value (if it is not) to its owner (Vayikra 5:23). In addition, the
thief is obligated to pay the victim of the theft the value of the stolen
object a second time. Restitution of the value of the stolen object is
called "Keren," and the additional payment is known as "Kefel" (see previous
entry).
(b) If the object that was stolen was a live sheep or ox, and the thief
either slaughtered or sold it, the Torah (Shemos 21:37) places an even
stiffer fine on the thief. In the case of a stolen sheep that was
slaughtered or sold, the thief must compensate the owner a total of four
times its actual value ("Arba'ah"), while in the case of a stolen ox that
was slaughtered or sold the thief must compensate the owner a total of five
times its actual value ("Chamishah"). This law does not apply to any other
object or animal that is stolen. Chazal (Bava Kama 79b) explain that the
Torah was more lenient with a person who steals a sheep than with one who
steals an ox, since he already suffered a somewhat demeaning experience of
walking with a sheep on his shoulders (as opposed to the ox-thief, who
presumably led the ox on foot before him).
(c) A thief does not pay Arba'ah va'Chamishah for slaughtering a sheep or ox
unless he, or a person he appoints, performs a proper ritual slaughter (i.e.
a Shechitah of the type that normally permits an animal to be eaten).
According to some Amora'im (Bava Kama 68a), a thief does not pay Arba'ah
va'Chamishah for *selling* a sheep or ox unless he sold it after "Ye'ush
Ba'alim" (i.e. the owner lost all hope of recovering the sheep or ox, see
Background to Gitin 37:30:a), while according to others he only pays Arba'ah
va'Chamishah if he sells it *before* Ye'ush Ba'alim.
(d) Arba'ah va'Chamishah, like any other payment that involves
over-compensation for a monetary loss, is considered a "Kenas" (penalty)
rather than "Mamon" (compensation). As is true of every Kenas, a thief does
not have to pay Arba'ah va'Chamishah if he admits to his guilt of his own
accord. Only if witnesses testify to his guilt in court must he pay. If he
admits to his guilt of his own accord, and later witnesses testify to his
guilt in court, the Amora'im argue as to whether or not he must pay Arba'ah
va'Chamishah (Bava Kama 74b-75a -- he is exempted from payment, according to
the lenient opinion, only if his admission took place under specific
circumstances). Until he is obligated to pay the Arba'ah va'Chamishah in
court, the thief is fully exempt from payment and does not even have a moral
obligation to pay it on his own accord (RASHBA Bava Kama 74b, see also
RAMBAN in Milchamos HaSh-m at the end of the third Perek of Kesuvos).
27) [line 30] GANAV - a thief (who steals surreptitiously)
28) [line 30] GAZLAN - a robber (who brazenly burglarizes and takes the
possessions of others by force)
29) [line 30] EDIM ZOMEMIN
(a) If two witnesses testify to a crime or an event and a later set of
witnesses contradict their testimony by saying that the crime or event did
not take place exactly as the first set of witnesses testified, all of the
witnesses are termed Edim Mukchashim (contradictory witnesses), and Beis Din
cannot use either testimony.
(b) If, however, two witnesses testify to a crime or an event and a later
set of witnesses *disqualify* their testimony by saying that the first set
of witnesses were with them in a different place at the time that the first
set of witnesses claim that the act took place, the first witnesses are
termed Edim Zomimin (conspiring witnesses). The Torah commands that the
second set of witnesses be believed, rather than the first. In general, Edim
Zomemim are punished with the punishment they tried to cause. (Devarim
19:16-21; see MISHNAH Makos 5a)
30) [line 30] ONES, MEFATEH
(a) ONES - If a man rapes a girl (between the ages of 12 and 12 1/2,
according to Rebbi Meir, or 3 and 12 1/2, according to the Chachamim;
Kesuvos 29a), he must pay her father a fine of fifty Shekalim, as stated in
Devarim (22:28). This amount is the equivalent of a Kesuvah (dowry) of a
virgin and is in addition to the payments of Pegam, Boshes and Tza'ar
(Kesuvos 39a; see Background to Kidushin 3:20). The man must also marry the
girl and never divorce her, if the girl wishes to be his wife.
(b) PITUY - If a man seduces a girl (between the ages of 12 and 12 1/2,
according to Rebbi Meir, or 3 and 12 1/2, according to the Chachamim;
Kesuvos 29a), and the girl or her father refuses to let him marry her, or if
the man chooses not to marry her, he must give the father of the girl fifty
Shekalim. This amount is the equivalent of a Kesuvah of a virgin and is in
addition to the payments of Pegam and Boshes (see Background ibid.; the
seducer does not pay the payment of Tza'ar -- Kesuvos 39b). If he chooses to
marry her and they consent, the man is not obligated to pay anything to the
girl or his father at the time of the marriage. If he later divorces her, he
must give her the Kesuvah of a virgin upon her divorce (Shemos 22:16).
31) [line 31] MOTZI SHEM RA
If a man marries a Na'arah (12 year old girl who has attained physical
maturity) who is a Besulah (a virgin who was never married in the past) and,
after the Chupah is performed, he falsely accuses her of committing adultery
and losing her virginity prior to the Chupah, he receives Malkos (lashes)
for his slanderous speech (Devarim 22:18). He must also give her father 100
Shekalim and never divorce her against her will (ibid. 22:19).
32) [line 31] METAMEI - one who makes someone else's Taharos (food items
that are Tahor) become Tamei (see Background to Gitin 52:48)
33) [line 31] MEDAME'A - one who mixes Terumah into someone else's Chulin
(a) If Terumah is mixed into Chulin, the entire mixture becomes prohibited.
The Terumah only becomes Batel (canceled) if one part of Terumah falls into
at least 100 parts of Chulin. Even if the Terumah is Batel, it is forbidden
for non-Kohanim to eat the entire mixture; the equivalent of the amount of
Terumah that fell in must first be removed.
(b) If the percentage of Terumah that fell into the Chulin was greater than
one in one hundred, the mixture is known as *Meduma* (lit. mixed) and is
forbidden to be eaten by non-Kohanim.
(c) According to Tosfos in Chulin 99a DH Ein, this law applies only if the
Terumah was the same type of food as the Chulin; otherwise Terumah is Batel
just like any other Isur.
34) [line 31] MENASECH - one who makes someone else's wine become Yayin
Nesech
(a) Wine that was poured as an idolatrous libation is Asur b'Hana'ah. This
is derived from the verse, "Asher Chelev Zevacheimo Yochelu, Yishtu *Yein
Nesicham*" - "Those who ate the fat of their sacrifices, and drank the wine
of their drink offerings" (Devarim 32:38), which compares the wine of
libations to an animal sacrificed for idolatrous purposes.
(b) The Chachamim prohibited the wine of a Nochri that was *not* poured as a
libation (Stam Yeinam) out of fear that drinking wine together would lead to
intermarriage. In order to avoid confusion between Yayin Nesech and Stam
Yeinam, the Chachamim instituted that Stam Yeinam is also Asur b'Hana'ah.
Although this is only an Isur mid'Rabanan, it is a very severe prohibition
(see Chochmas Adam 75:1).
35a) [line 33] MAMONA - a monetary payment which is paid as actual
reparation for damages rendered
b) [line 34] KENASA - a fine or penalty (a Kenas is defined as any payment
that involves over-compensation (or under-compensation) for a monetary loss,
or a payment which has a set, standard amount)
c) [line 33, 34] MAMONA / KENASA
(a) There are two types of monetary payments found in the Torah: Mamon
(compensation) and Kenas (a penalty). The defining factors of Kenas are: 1.
A payment that involves over-compensation for a monetary loss, or 2. A
payment where the amount is fixed and is not dependent upon the value of the
damage done. (RASHI, Bava Kama 5a DH Edim)
(b) A person does not have to pay Kenas if he admits of his own accord to
the actions that brought about the obligation of Kenas. Only if witnesses
testify to his actions in court must he pay. Until he is obligated to pay
the Kenas in court through the testimony of witnesses, he is fully exempt
from payment and does not even have a moral obligation to pay it on his own
accord (RASHBA Bava Kama 74b, see also RAMBAN in Milchamos HaSh-m at the end
of the third Perek of Kesuvos).
(c) If he admits to his guilt of his own accord and later witnesses testify
to his guilt in court, the Amora'im argue as to whether or not he must pay
the Kenas (Bava Kama 74b-75a). The Gemara concludes that the lenient opinion
only exempts the person from the Kenas if he obligated himself to pay Mamon
with his admission, i.e. if he admitted to both Mamon and Kenas at the same
time. For example, if a thief admits to his guilt before witnesses testify
to the crime, he obligates himself to at least pay for the object that he
stole. In such a case he is exempt from Kefel (the Kenas). However, if he
had already been found guilty of taking the object that is not his
("Gezeilah") and he later admits to having stolen it surreptitiously
("Geneivah"), he *is* obligated to pay Kefel if witnesses later testify to
the same effect in court. Since his admission did not create an obligation
for Mamon, it does not exempt him from the Kenas when witnesses later
testify that he stole it.
36) [line 35] HA'KETANI LEI SHOMER CHINAM VEHA'SHO'EL (TA'ANAS GANAV) - but
he does list it (Ganav and Gazlan) [for they are included in the words]:
"Shomer Chinam and the Sho'el"
If a Shomer Chinam claims that the item he was watching was stolen from him,
and then it turns out that he still has it, he has the status of a Ganav
himself ("To'en Ta'anas Ganav, k'Ganav" -- "one who makes a claim of theft
(i.e. that the item he was watching was stolen, and is then proven to be
lying), is himself considered a Ganav" - Bava Kama 63b). Hence, the Halachos
of Ganav are included in the Halachos of Shomer. (When the Gemara here
mentions "Sho'el," it is Lav Davka, as Rashi points out, since, if a Sho'el
claims that the item he was watching was stolen, he is still obligated to
pay for it (see above, entry #15).)
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