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Bava Kama 84
1a) [line 11] TEREIFAH
A Tereifah is a person who had acquired or was born with a fatal defect that
will result in his death within a year. (There are some who maintain that a
Tereifah can live for more than a year -- see Chulin 42a-b)
b) [line 11] SHALEM - (lit. whole) a healthy person
2) [line 13] "...KEN YINASEN BO." - "[...when one gives a wound to a
person,] so must he pay [as if the wound were inflicted] on him." (Vayikra
24:20)
3) [line 14] "...KA'ASHER YITEN MUM BA'ADAM..." - "...when one gives a wound
to a person, [so must he pay [as if the wound were inflicted] on him.]"
(Vayikra 24:20)
4) [line 15] "V'ISH KI YITEN MUM BA'AMISO, KA'ASHER ASAH, KEN YE'ASEH LO." -
"And if a man gives a wound in his neighbor, just as he has done, so shall
it be done to him." (Vayikra 24:19)
5) [line 18] "...YAD B'YAD, REGEL B'RAGEL." - "[And your eye shall not pity;
but life shall go for life, eye for eye, tooth for tooth,] hand for hand,
foot for foot." (Devarim 19:21)
6) [line 20] "VA'ASISEM LO KA'ASHER ZAMAM LA'ASOS L'ACHIV; [U'VI'ARTA HA'RA
MI'KIRBECHA.]" - "And you shall do to him as he plotted to do to his
brother; [and you shall remove the evil from your midst.]" (Devarim 19:19)
7) [line 25] MEIMAD AMDINAN LEI - they estimate his fortitude
8) [line 27] MALKOS (MALKOS ARBA'IM)
(a) It is a Mitzvah to administer the punishment of Malkos Arba'im (Torah
lashes) to one who is liable to Malkos, as the Torah states, "v'Hipilo
ha'Shofet v'Hikahu" - "and the judge shall cast him down and whip him"
(Devarim 25:2). Malkos d'Oraisa are administered in Eretz Yisrael by a court
of three judges who are Semuchin (Halachically ordained), whether the Beis
ha'Mikdash stands or not (RAMBAM Hilchos Sanhedrin 16:2). Courts outside of
Eretz Yisrael can only administer Makas Mardus (Rabbinic lashes, see
Background to Kidushin 70:32).
(b) A person is only liable to Malkos Arba'im if he transgresses a *Lav* (a
negative commandment) of the Torah that is not "modified," such as a Lav
shebi'Chelalos (see Background to Nazir 38:20), a Lav she'Nitak l'Aseh (see
Background to Yoma 85:26), etc. A prohibition that is implied by a positive
commandment is never punishable by Malkos. In addition, he must transgress
in front of witnesses after receiving a proper warning in order to be
liable.
(c) Malkos are administered in numbers of three, with a maximum amount of
thirty-nine for each transgression. The culprit is examined to determine how
many lashes he can withstand. He stands leaning against a post and his
clothes are ripped until his heart is revealed. The agent of Beis Din, a
Torah scholar who is specifically weak, stands on a rock behind him,
whipping one third of the lashes on his chest and two thirds on his back,
one third on each shoulder (Makos 22b).
(d) During the whipping, the most distinguished judge of the court reads the
verse "Im Lo Sishmor La'asos Es Kol Divrei ha'Torah ha'Zos...v'Hifla HaSh-m
Es Makoscha..." - "If you will not be careful to perform all the words of
this Torah...then HaSh-m will make your blows extraordinary..." (Devarim
28:58-59). For each blow, the deputy judge counts out loud the number of
each lash and a third judge calls out "Hakehu!" - "Whip him!" If the culprit
dies from the lashing, the agent of Beis Din is exempt from any punishment;
however, if he administers an extra lash due to a mistake in the count, and
the extra lash causes the culprit to die, he must go to Galus (exile, see
Background to Bava Kama 32:20).
9) [line 27] AMDUHU U'MES TACHAS YADO PATUR - if they (Beis Din) assessed
[the number of lashes that he could receive without mortally endangering
him,] and yet he died as a result of the lashes, the one administering the
lashes is exempt
10) [line 28] "PETZA TACHAS PATZA" - "wound for wound" (Shemos 21:25)
11) [line 30] MEFANEK - pampered
12) [line 31] L'MEISAV LEI (HE'ACH) [HA'ICH] D'VEINEI VEINEI - that the
Mazik must pay the difference
13) [line 33] ASYA - medical treatment
14) [line 33] IKA D'SALIK BISREI HAYA - there are [those] whose flesh heals
fast
15) [line 38] "TACHAS ASHER INAH" - "due to the fact that he has afflicted
her" (Devarim 22:29)
16) [line 41] YENUKA - a young child, baby
17) [line 44] ZILA BEI MILSA - the thing is disgraceful for him (for him to
be evaluated in the marketplace as if he were being sold as a slave)
18) [line 45] TORA - an ox
19) [line 45] ALAS - chewed
20) [line 46] KOL HA'NISHOM K'EVED EIN GOVIN OSO B'VAVEL - [the estimated
amount of] one who is evaluated as if he were being sold as a slave is not
collected in Bavel (i.e. outside of Eretz Yisrael)
21) [line 46] D'IY TAFAS (TEFISAH) - if he (the one entitled to the
compensation) seized [the money, then Beis Din does not force him to give it
back]
22) [last line] ELOHIM BA'INAN, V'LEIKA - properly ordained judges are
necessary, but there are none
84b---------------------------------------84b
23) [line 2] SHELICHUSAIHU KA AVDINAN - we are [acting as the agents of the
courts in Eretz Yisrael by] performing their mission on their behalf
24) [line 3] HODA'OS - [court cases in which witnesses testify to the]
admissions [of liability of the litigants]
25) [line 3] HALVA'OS - [court cases in which witnesses testify to] loans
(it is not necessary for judges to be ordained to rule in cases of monetary
admissions and loans, Sanhedrin 2b)
26) [line 6] MIDI D'KIM LAN B'GAVEI - something in which we are expert
27) [line 9] PUK CHAZI (HEICHA) KAMAH MIZDABNEI TORA B'SHUKA - go see how
much an ox is sold for in the marketplace
28) [line 11] TASHLUM KEFEL (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, he
exhibits his lack of belief in HaSh-m (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).
29) [line 11] TASHLUM ARBA'AH V'CHAMISHAH (TASHLUMEI ARBA'AH VA'CHAMISHAH) -
a thief's quadruple and quintuple restitution for the theft and subsequent
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).
30) [line 12] KITZEI - its value is set, fixed, determined
31a) [line 13] MAMONA
MAMONA / KENASA
There are two types of monetary payments found in the Torah: Mamon
(compensation) and Kenas (a penalty). Mamona, or Mamon, refers to a monetary
payment which is paid as actual reparation for damages rendered. 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)
See Background to Bava Kama 4b.
b) [line 14] 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); see previous entry (31a)
32) [line 19] AGVI - collect
33a) [line 19] SHALACH LEI RAV CHISDA L'RAV NACHMAN - Rav Chisda, who was in
Bavel, sent to Rav Nachman a description of his practice to collect certain
types of fines for various misdeeds (as explained on 37b)
b) [line 20] KENASA KA MAGVIS B'VAVEL?! - Are you collecting fines in
Bavel (a judicial process which needs Dayanim Semuchim -- ordained judges)
[who do not exist in Bavel]?!
34) [line 29] D'IYA'AD HASAM V'AISUHA L'VAVEL - [an ox] that became a Mu'ad
there (in Eretz Yisrael) and was then brought to Bavel
35) [line 32] SHEN - (lit. tooth) An ox (or other animal) that causes damage
by eating or otherwise deriving benefit from another person's property.
(According to some Rishonim, the ox must derive *physical* benefit from the
other person's object in order for his damages to be described as Shen, see
Rashi Bava Kama 17b). The laws of Shen are identical to the laws of Regel
(see next entry).
36) [line 32] REGEL - (lit. foot) An ox (or other animal) that unwittingly
causes damage by trampling or otherwise mutilating an item (or person or
animal), while walking or acting in its normal manner. When an ox causes
damage in this manner in Reshus ha'Rabim, the owner is exempt from paying
for damages (since the owner of the damaging ox did nothing wrong, but
simply walked his ox in a place in which it is permitted for it to walk; see
ROSH end of Bava Kama 1:1; Bava Kama 17b). However, if the ox enters private
property without permission, and causes damage in such a manner to the owner
of the property or to his possessions, the owner of the damaging ox must pay
in full for the damages incurred.
37) [line 32] MU'ADIN MI'TECHILASAN NINHU - they are acts of destructiveness
for which the owner of the animal always (even for the first three times)
pays [in full] as a "Mu'ad" (an animal that is expected to inflict damage)
38) [line 34] KEVIYAH NE'EMRAH TECHILAH - The verse states, "Keviyah Tachas
Keviyah, Petza Tachas Patza, Chaburah Tachas Chaburah" - "[Compensation the
value of a] burn for a burn, a wound for a wound, an injury for an injury"
(Shemos 21:25). Rebbi and Ben Azai argue how to interpret this verse (and
Rava and Rav Papa argue about how to explain the argument between Rebbi and
Ben Azai). The issue under discussion is in which one of the following two
ways is the verse to be understood: 1. The word "Keviyah" is supposed to be
read as meaning a burn alone, without any injury ("Keviyah Ne'emrah
Techilah"), and it implies that one must pay for a burn even when it is not
accompanied by an injury, and when the word "Chaburah" appears in the verse
it is meant to *limit* the liability for a burn to where the burn is
accompanied by an injury. 2. The word "Keviyah" is supposed to be read
initially as if the word "Chaburah" is already known ("Chaburah Ne'emrah
Techilah"), such that one is obligated to pay for a burn only when it is
accompanied by an injury, and when the word "Chaburah" appears later in the
verse it is meant to teach that the word "Keviyah" earlier in the verse
means that even *without* an injury, one is obligated to pay for a burn.
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