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Bava Kama 106
BAVA KAMA 106 (24 Cheshvan) - dedicated by Dr. Moshe and Rivkie Snow to the
memory of Rivkie's father, the Manostrishtcher Rebbe, Hagaon Rav Yitzchak
Yoel ben Gedaliah Aharon Rabinowitz Ztz"l. The personification of a Torah
scholar, the Rebbi was born in Uman (Ukraine) but lived most of his life in
Brooklyn, NY, where his warm ways changed many lives.
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1) [line 7] "V'LAKACH BE'ALAV V'LO YESHALEM" - "[An oath of HaSh-m shall be
between the two of them...] and the owner shall accept it and he shall not
pay." (Shemos 22:10)
2) [line 15] VEHA'ELOKIM - Indeed! (using "ha'Elokim," which is an oath, for
emphasis)
3) [line 21] NISHBA CHUTZ L'VEIS DIN - he made a Shevu'ah outside of Beis
Din; it was not a judicially-mandated Shevu'ah
4) [line 22] VEHA'EDIM ME'IDIM OSO SHE'GENAVO (TO'EN TA'ANAS GANAV) - and
the witnesses testify about him that he stole it
TO'EN TA'ANAS GANAV
(a) The Torah establishes the degree of responsibility that a Shomer has
when he accepts upon himself to guard his friend's object and he does not
specify any other acceptance of responsibility at the time the object is
given to him. The Torah divides the degrees of responsibility into four
categories of Shomrim: Shomer Chinam, Shomer Sachar, Socher, and Sho'el --
see Background to Bava Kama 104:6.
(b) A Shomer Chinam 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). When the Shomer Chinam claims that the
object was stolen or lost or that an Ones occurred, he must make an oath (1)
that he was not negligent (Poshe'a) in guarding the object, and (2) that he
did not send forth his hand to use the object without permission, and (3)
that the object is not in his possession. Once he makes this Shevu'ah, he is
exempt from paying the owner for the object.
(c) If the Shomer claimed that the object was lost or that an Ones happened
and he made a Shevu'ah as mentioned above, and then witnesses came and
testified that he himself stole the object and that the object is still in
his possession, he is obligated to return the object to its owner (if he
made the Shevu'ah in Beis Din after the Beis Din required that he make the
abovementioned oath, there is an opinion that maintains that he is exempt
from paying, since he acquired the object by making a Shevu'ah; see Insights
to 106a). If, after making a Shevu'ah, the Shomer admitted that he stole the
item (whether he admits before witnesses come or after witnesses come), he
must pay the principle of the object that he stole, and he must add to it a
Chomesh, an additional fifth (of the ensuing total, or a *quarter* of the
original value), and he must bring a Korban Asham Gezeilos. This is called
"To'en Ta'anas *Avad*," or "To'en Ta'anas *Ones*."
(d) If the Shomer claimed that the object was *stolen* and he exempted
himself from paying for it by making the three Shevu'os mentioned above, and
then witnesses came and testified that he himself stole it, the Shomer is
obligated to pay Kefel (double the value of the object), for the Torah gives
him the status of a Ganav (which is what he claimed happened to the object),
and not just the status of a Gazlan (who does not pay Kefel). This is called
"To'en Ta'anas Ganav." If he admitted on his own before witnesses came, he
must pay the principle, Chomesh, and bring a Korban Asham, and he is exempt
from paying Kefel, since Kefel is a Kenas (penalty) and one who admits to
the Chiyuv of a Kenas is exempt from paying it (see Background to Bava Kama
14:20). If he admitted *after* witnesses came, he must pay Kefel (since he
made a claim that the item was stolen, "To'en Ta'anas Ganav"), and he must
bring a Korban Asham, but he is exempt from paying a Chomesh because it is
included in the Kefel. (This is according to the Chachamim, Bava Kama 65b;
there is one opinion that says that under certain circumstances he also pays
a Chomesh, and there is another opinion that says that the Kefel even
exempts him from bringing the Korban Asham.)
(e) One who is "To'en Ta'anas Ganav" with regard to an animal that was
entrusted with him, and then he slaughtered or sold it, he is obligated to
pay Arba'ah v'Chamishah, like a Ganav who stole an animal and slaughtered or
sold it (Bava Kama 106b). Similarly, one who found a lost object (Aveidah)
and is guarding it, and then claims that it was stolen ("To'en Ta'anas Ganav
b'Aveidah") is obligated to pay Kefel.
5) [line 25] MIHU SHINUYA DECHIKA LO MESHANINAN LACH - but I will not answer
you with forced answers
6) [line 26] KAFATZ - he jumped [and made an oath without having been told
to do so]
7) [line 27] MASHCHUNI NAFSHACH AD'RAV, LAMAH LACH? - Why do you need to
collateralize yourself for Rav (to stand in his place and defend his
opinion)?
8) [line 28] KOL HA'NISHBA'IN SHEBA'TORAH NISHBA'IN V'LO MESHALMIN
All Shevu'os d'Oraisa, oaths of Torah origin, involve making a Shevu'ah to
*exempt* oneself from payment or liability, and not making a Shevu'ah to
*extract* payment from someone. This is derived from the verse, "An oath of
HaSh-m shall be between the two of them... and the owner shall accept it and
*he shall not pay*" (Shemos 22:10).
9) [line 30] HISHBI'A ALAV CHAMISHAH PE'AMIM - he was enjoined to make an
oath five times
10) [line 34] HU MOSIV LAH, V'HU MEFAREK LAH - he asked the question and he
himself answered it
11) [line 34] LI'TZEDADIN KETANI - the two statements are dealing with
different cases
12) [line 37] MESHALEM TASHLUMEI KEFEL V'ASHAM - he pays Tashlumei Kefel,
the double payment, for stealing, and he must bring a Korban Asham for
making a false oath and admitting it. See Background to Bava Kama 103:13.
106b---------------------------------------106b
13) [line 2] AMATU L'HACHI - because of this
14a) [line 9] TO'EN TA'ANAS GANAV - see above, entry #4.
b) [line 10] TASHLUM KEFEL - see Background to Bava Kama 84:28
c) [line 11] TASHLUM ARBA'AH V'CHAMISHAH (TASHLUMEI ARBA'AH
VA'CHAMISHAH) - see Background to Bava Kama 84:29
15) [line 20] HEIKEISHA HI V'EIN MESHIVIN AL HEIKEISHA (HEKESH/EIN MESHIVIN
AL HA'HEKESH)
(a) One of the methods that Chazal use for extracting the Halachah from the
verses of the Torah is Hekesh, in which two subjects that are mentioned in a
verse are compared. If there are a few possible Halachos that the Hekesh
teaches, we learn them all ("Ein Hekesh l'Mechtzah"). We do not say that it
teaches us only one or two of the Halachos (unless we have an explicit
teaching that excludes a specific Halachah).
(b) Normal questions that can invalidate a Kal va'Chomer (see Background to
Bava Kama 25:1) or a Gezeirah Shavah (see Background to Bava Kama 25:19)
will not invalidate a Hekesh ("Ein Meshivin Al ha'Hekesh").
16) [line 21] HANICHA L'MAN D'AMAR CHAD B'GANAV V'CHAD B'TO'EN TA'ANAS
GANAV - this answer suffices for the opinion that maintains that one verse
is referring to a Ganav, and one verse is referring to one who is To'en
Ta'anas Ganav (see above, entry #4), and thus there is a Hekesh between
Ganav and To'en Ta'anas Ganav. These two verses are Shemos 22:6 and 22:7 --
"If a man gives to his friend money or utensils to guard, and they are
stolen from the house of the person, then if the thief is found, he shall
pay double. If the thief is not found, the owner of the house shall be
brought to the judges to swear that he did not misuse (lit. send his hand
upon) his friend's possession."
17a) [line 23] "IM YIMATZEI HA'GANAV" - "[If a man gives to his friend money
or utensils to guard, and they are stolen from the house of the person,
then] if the thief is found, [he shall pay double.]" (Shemos 22:6)
b) [line 23] "IM LO YIMATZEI" - "If the thief is not found, [the owner of
the house shall be brought to the judges to swear that he did not misuse
(lit. send his hand upon) his friend's possession.]" (Shemos 22:7)
18a) [line 28] NEVEILAH
A Neveilah is a carcass of an animal that died without a Halachic
slaughtering. The Torah states, "You shall not eat anything that dies by
itself (Neveilah). You shall give it to the stranger who is in your gates,
that he may eat it, or you may sell it to a Nochri, for you are a holy
people to HaSh-m, your Elokim" (Devarim 14:21). The flesh of a Neveilah is
prohibited to be eaten, and a k'Zayis or more of a Neveilah makes an object
Tamei through Maga (contact) and Masa (carrying).
b) [line 28] TEREIFAH - A Tereifah is an animal that has acquired or was
born with a fatal defect that will result in its death within a year. (There
are some who maintain that a Tereifah can live for more than a year -- see
Chulin 42a-b)
19) [line 28] SHECHITAH SHE'EINAH RE'UYAH SHEMAH SHECHITAH
(a) A proper Shechitah (ritual slaughter) that does not permit the animal to
be eaten is referred to as a Shechitah she'Einah Re'uyah. (A Shechitah that
was not performed properly is not a Shechitah she'Einah Re'uyah. It is not a
Shechitah at all.)
(b) There is a Machlokes Tana'im whether a Shechitah that does not permit
the animal to be eaten has the title of "Shechitah" (for various Halachic
purposes other than for eating, such as to obligate a Ganav -- who
slaughters an animal that is found to be a Tereifah -- to pay Arba'ah
v'Chamishah).
20) [line 29] BEN PEKU'AH - an animal that is taken out alive from its
slaughtered mother's womb. There is a Machlokes Tana'im whether such an
animal needs Shechitah in order to be eaten, or whether the Shechitah of its
mother is considered a valid Shechitah for it as well (even though it
actually dies much later).
21) [line 30] "TZEI TEN LO" - if the Beis Din said, "Go give him (pay him
back)"
22) [line 31] KEIVAN D'PASKEI L'MILSEI - since they passed his verdict. By
commanding him to pay back the stolen animal, this constitutes the Gemar Din
(Shitah Mekubetzes 68b); once his verdict has been formally issued, if he
continues to refuse to give back the animal he is considered a Gazlan and
not a Ganav, and a Gazlan does not pay Arba'ah v'Chamishah for slaughtering
the stolen animal (see Background to Bava Kama 93:19)
23) [line 33] KOL KAMAH D'LO PESIKA LEI MILSA - as long as his verdict (the
Gemar Din) has not been passed
24) [line 34] SHUTAF SHE'TAVACH SHE'LO MI'DA'AS CHAVEIRO - a partner [in the
stealing of the animal] who slaughtered the animal without his fellow
partner's knowledge. When two partners steal an animal together and one of
them then slaughters the animal without the other partner's knowledge, the
one who slaughtered the animal is exempt from paying Arba'ah v'Chamishah, as
is derived from verses (see Bava Kama 78b).
25) [line 35] CHADA MI'TREI U'TELASA NAKAT - he chose one [answer] out of
two or three [answers]
26) [line 37] "...AL KOL AVEIDAH ASHER YOMAR [KI HU ZEH, AD HA'EL-KIM YAVO
DEVAR SHENEIHEM; ASHER YARSHI'UN EL-KIM YESHALEM SHENAYIM L'RE'EIHU.]" -
"...or for any kind of lost thing, about which he will say [that this is it,
the cause of both parties shall come before the judges; and whom the judges
shall condemn, he shall pay double to his neighbor.]" (Shemos 22:8)
27) [line 38] "KI YITEN ISH" - "If a man gives [to his friend money or
utensils to guard, and they are stolen from the house of the person, then if
the thief is found, [he shall pay double.]" (Shemos 22:6)
28) [line 44] AVEIDAH KA ASYA MI'KO'ACH BEN DA'AS - a lost object came to
his hands from the authority of a person with intelligence (i.e. an adult);
that is, the item was previously in the possession of a person with
intelligence, in contrast to an item that was previously in the possession o
f a Katan, who is not a Ben Da'as (Ra'avad)
29) [line 46] AD SHE'YICHPOR B'MIKTZAS V'YODEH V'MIKTZAS - until he denies
part and admits to part
MODEH B'MIKTZAS HA'TA'ANAH
If a person admits that he owes part of a claim, the Torah suspects that the
person wants to temporarily postpone part of the payment but does not have
the audacity to completely deny the claim. He is therefore required to take
an oath, mid'Oraisa, on the part he denies (Shemos 22:8), or otherwise he
must pay the entire amount being claimed.
30) [last line] "KI HU ZEH" -- see above, entry #26
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