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Bava Kama, 13

1) THE TYPE OF "KODSHIM KALIM" WHICH IS "MAMONO"

QUESTION: Rebbi Yosi ha'Glili maintains that Kodshim Kalim are considered "Mamono," the personal property of the owner (and, consequently, if a person denies that he received the owner's Kodshim Kalim to watch for him, and then it is discovered that he did receive them, he must bring a Korban Shevu'as ha'Pikadon).

Rebbi Yosi ha'Glili does not specify which type or types of Kodshim Kalim are considered "Mamono." The Beraisa cites two Tana'im who argue which types of Kodshim Kalim are considered "Mamono." Ben Azai, according to the Tana Kama, says that the Korban Shelamim is considered "Mamono." Aba Yosi ben Dusta'i quotes Ben Azai as saying that only a Bechor is considered "Mamono."

The Gemara explains this Machlokes in two ways (see Chart). According to the Lishna Kama, Ben Azai is not saying that only Shelamim is "Mamono" and not Bechor, because there is a Kal v'Chomer: If a Korban Shelamim -- which requires Semichah, Nesachim, and Tenufah of the Chazeh v'Shok and, therefore, is more Kadosh than Bechor -- is nevertheless considered the owner's personal property, then certainly a Bechor -- that does not have all those requirements -- is considered personal property. Why, then, does Ben Azai (according to the Tana Kama) limit the teaching of Rebbi Yosi ha'Glili to Shelamim? Bechor, too, should certainly be considered personal property! The Gemara answers that it must be that Ben Azai means Shelamim *and* Bechor, and he is excluding Ma'aser Behemah which is *not* "Mamono."

Ravina presents another version (the Lishna Basra) of this Kal v'Chomer. Ravina contends that the Kal v'Chomer refers to the words of Aba Yosi. How can Aba Yosi say that only a Bechor is the property of its owner? A Bechor is *more* Kadosh than Shelamim, since it is "Kadosh m'Rechem," it is holy from birth. If a Bechor is considered personal property, then certainly a Korban Shelamim is "Mamono" as well! It must be that Aba Yosi holds that both Bechor and Shelamim are considered personal property, and when he says "Bechor" he means to exclude only Ma'aser Behemah, which is not considered "Mamono" (and for which one is not Chayav to bring a Korban Shevu'as ha'Pikadon).

This Sugya is difficult to understand for a number of reasons.

First, why does the Gemara, in the Lishna Kama, ask what type of Korban does Ben Azai intend to exclude? We learned earlier (12b) that only a Bechor in Chutz la'Aretz is considered personal property according to Rebbi Yosi ha'Glili, since it cannot be brought as a Korban. A Bechor in Eretz Yisrael is more Kadosh and is not considered "Mamono." Accordingly, the Gemara should explain that Ben Azai means that *only* a Shelamim is considered "Mamono," while a Bechor in Eretz Yisrael, though, is *not* considered "Mamono." (SHITAH MEKUBETZES, quoting the ROSH in the name of MAHARAM M'RUTTENBURG; MAHARAM M'LUBLIN, P'NEI YEHOSHUA)

Second, if the Kal v'Chomer, according to the Lishna Kama, is a proper Kal v'Chomer, and Bechor is less Kadosh than Shelamim since it does not need Tenufas Chazeh v'Shok, then that Kal v'Chomer should teach that even a Bechor in Eretz Yisrael is considered "Mamono" since it, too, does not need Tenufas Chazeh v'Shok! (ROSH in the name of Maharam m'Ruttenburg; SHITAH MEKUBETZES in the name of the Rosh and Gilyon)

Third, if the Gemara maintains that only a Bechor in Chutz la'Aretz is "Mamono" since it cannot be offered as a Korban, then instead of saying that a Shelamim is more Kadosh than a Bechor because it requires Tenufas Chazeh v'Shok, the Gemara should say that it is more Kadosh than a Bechor of Chutz la'Aretz because it is brought as a Korban, while a Bechor of Chutz la'Aretz is not brought as a Korban at all! (SHITAH MEKUBETZES quoting GILYON and the MAHARI KOHEN TZEDEK; see also TOSFOS RABEINU PERETZ, RASHASH.)

Fourth, if the Kedushah m'Rechem of a Bechor makes it more Kadosh than a Shelamim, then why does the Lishna Kama not use that as a Pircha to its Kal v'Chomer from Shelamim? The Gemara should ask that perhaps a Shelamim is considered "Mamono" even though it requires Tenufas Chazeh v'Shok, while a Bechor is not considered "Mamono" because it is Kadosh m'Rechem! (ROSH in Shitah Mekubetzes)

Fifth, if Aba Yosi is saying that a Bechor in Chutz la'Aretz is the property of its owner, then how can the Lishna Basra say that Shelamim is certainly the property of its owner since it is not Kadosh m'Rechem? Even if it is not Kadosh m'Rechem, it is more Kadosh than a Bechor in Chutz la'Aretz, since it is offered as a Korban upon the Mizbe'ach! (RABEINU PERETZ, RASHASH)

ANSWERS:

(a) The SHITAH MEKUBETZES cites the GILYON who answers the first question, why the Gemara does not explain that Ben Azai means to exclude a Bechor in Eretz Yisrael, which is not "Mamono," by explaining that the wording of Ben Azai implies that he is trying to exclude a particular Korban which, under *all* circumstances, is not "Mamono." A Bechor is the property of its owner when born in Chutz la'Aretz, but not when born in Eretz Yisrael, and therefore Ben Azai cannot be trying to exclude Bechor.

The TALMIDEI RABEINU YISRAEL in the Shitah Mekubetzes write a similar answer. They add that this is also why the Gemara does not say that Ben Azai is trying to exclude the actual Chazeh v'Shok of a Shelamim, which are certainly the property of "Gavohah."

The second, third, and fourth questions answer each other, as the Gilyon in the Shitah Mekubetzes explains (see also PEROS YOSEF). When the Gemara says that a Bechor is less Kadosh than a Shelamim, it is referring specifically to a Bechor in Chutz la'Aretz. The fact that it is not able to be sacrificed and brought upon the Mizbe'ach offsets the Chumra of Kadosh m'Rechem, such that it can be called "less Kadosh" than a Shelamim, which requires Tenufas Chazeh v'Shok and which is offered upon the Mizbe'ach. This also seems to be the intention of RASHI (DH Bechor Miba'i) who points out that this Kal v'Chomer was only stated with regard to a Bechor in Chutz la'Aretz, which is not offered on the Mizbe'ach.

This answers the second question. A Bechor in Eretz Yisrael is indeed more Kadosh than a Shelamim, since it is Kadosh m'Rechem and because it is sacrificed.

This answers the third question as well. The Gemara does not write that the reason a Bechor is less Kadosh is because it is not sacrificed, because that Kula is offset by the Chumra that it is Kadosh m'Rechem.

This also answers the fourth question. The Gemara does not challenge the Kal v'Chomer by pointing out that a Bechor should be more Kadosh than a Shelamim because it is Kadosh m'Rechem, because we are discussing a Bechor in Chutz la'Aretz which cannot be sacrificed, and that counterbalances the Chumra of Kadosh m'Rechem.

Our fifth question involved the Gemara's Lishna Basra (Ravina). How can Ravina make a Kal v'Chomer to show that Shelamim is less Kadosh than a Bechor, if the Bechor that we are discussing is a Bechor in Chutz la'Aretz which is not brought as a Korban, while a Shelamim *is* brought as a Korban? Shelamim should be more Chamur, like the Lishna Kama itself says!

The TALMIDEI RABEINU PERETZ answer that the Lishna Basra is not explaining Rebbi Yosi ha'Glili in the same manner that the Gemara earlier did. Rather, the Lishna Basra is assuming that Rebbi Yosi ha'Glili even considers a Bechor in Eretz Yisrael to be "Mamono," the property of its owner. Consequently, Ben Azai is discussing a Bechor in Eretz Yisrael, which *is* brought as a Korban, and since it is Kadosh m'Rechem, it is indeed more Kadosh than a Shelamim which is not Kadosh m'Rechem (even though a Shelamim requires Tenufas Chazeh v'Shok).

How can we assert that Ravina is arguing on the previous Gemara, when it was Ravina himself (12b) who stated that Rebbi Yosi ha'Glili is discussing a Bechor in Chutz la'Aretz?

TALMIDEI RABEINU PERETZ answer that there are two different Amora'im with the name Ravina. (See also Shitah Mekubetzes to Beitzah 17a).

In summary, according to Rashi, the Lishna Kama holds that only a Bechor in Chutz la'Aretz is "Mamono," while the Lishna Basra (Ravina) holds that even in Eretz Yisrael a Bechor is considered "Mamono."

(b) The ROSH in the name of MAHARAM M'RUTTENBURG, and the RA'AVAD in the Shitah Mekubetzes, say exactly the opposite. They answer the first three questions by explaining that the Lishna Kama *argues* with Ravina and explains that Rebbi Yosi ha'Glili considers even a Bechor in Eretz Yisrael to be "Mamono." That is why the Gemara does not suggest that Ben Azai is excluding a Bechor in Eretz Yisrael from being "Mamono," since the Kal v'Chomer that the Gemara states indeed does teach that a Bechor in Eretz Yisrael is considered "Mamono" because it does not require Tenufas Chazeh v'Shok, and is less Kadosh than Shelamim.

Regarding the third question, why the Gemara does not mention that a Bechor is less Kadosh because it cannot be sacrificed, this question is no longer a question if the Gemara is discussing a Bechor in Eretz Yisrael, which *can* be sacrificed!

The fourth question we asked was why the Gemara does not suggest that Bechor is *more* Kadosh than Shelamim because it is Kadosh m'Rechem, and why the Gemara does not ask this as a Pircha on the Kal v'Chomer (this is what forced Rashi to explain that the Lishna Kama does hold like Ravina and is discussing a Bechor in Chutz la'Aretz). The Rosh writes that the Gemara does not mean to present an absolute Kal v'Chomer. Rather, it wants to compare Bechor and Shelamim and to determine which of the two is slightly more Chamur than the other. The verse that teaches that Korbanos are "Mamono" does not specify which Korbanos are considered "Mamono," and therefore we must determine which Korbanos are "Mamono" based on logical considerations. The Lishna Kama holds that if logic dictates that a Shelamim is considered "Mamono," even though it requires Tenufas Chazeh v'Shok, then a Bechor should also be "Mamono," since the Kedushah m'Rechem will not make it more Kadosh than something that requires Tenufas Chazeh v'Shok.

Ravina, who explains (12b) that Rebbi Yosi ha'Glili is discussing a Bechor in Chutz la'Aretz, is consistent with his own reasoning in not accepting the Lishna Kama. He maintains that the fact that a Bechor is Kadosh m'Rechem would make it more Kadosh than a Shelamim, even though the Bechor does not require Tenufas Chazeh v'Shok. Therefore, a Bechor in Eretz Yisrael is not considered "Mamono." In the Lishna Basra, Ravina explains that Rebbi Yosi ha'Glili is discussing a Bechor in Chutz la'Aretz, and even a Bechor in Chutz la'Aretz is logically more Kadosh than a Shelamim since its Kedusah is m'Rechem. (This is how he answers the fifth question.)

In summary, according to the Rosh in the name of the Maharam m'Ruttenburg, the Lishna Kama holds that Rebbi Yosi ha'Glili considers even a Bechor in Eretz Yisrael to be "Mamono," while the Lishna Basra holds that only a Bechor in Chutz la'Aretz is "Mamono" (the opposite of answer (a)).

13b

OPINIONS: Ravina cites a Beraisa in which Rebbi Yehudah teaches that if one's Shor gored and killed a person, and before the G'mar Din the owner was Mafkir or Makdish his Shor, the owner is exempt from paying for the damages. This is derived from a Derashah from the verse, "v'Hu'ad bi'Va'alav... v'Hemis Ish" (Shemos 21:29), which teaches that the Negichah and the passing of the verdict in court must both occur when the Shor is in the same state, under the same ownership ("Shavin k'Echad").

Rebbi Yehudah only discusses what the Halachah is when the owner was Mafkir or Makdish the animal after it gored. What is the Halachah in a case where the owner *sells* the animal to someone else after it gored?

(a) The RASHBA, NIMUKEI YOSEF, RAMBAM (Hilchos Nizkei Mamon 8:4) and all of the other Rishonim say that the exemption of Rebbi Yehudah applies only when the owner was Mafkir or Makdish the animal. If he sold the animal to someone else, then the Negichah and G'mar Din are still considered to be "Shavin k'Echad," since the G'mar din took place while the animal had an owner. As long as the animal had an owner and was not ownerless, it makes no difference who the owner was in order for the owner at the time of the damage to be obligated to pay. That is why Rebbi Yehudah only mentions that the owner is exempt when he was Mafkir or Makdish the animal before the G'mar Din, such that it had *no* owner.

(b) However, RASHI (DH Lime'utei, DH v'Hu'ad, DH Shavin) writes that the animal must have the same owner until the G'mar Din, according to Rebbi Yehudah, in order to be obligated to pay. This implies that if the animal was sold to someone else before the G'mar Din, then neither owner has to pay. Rashi says this more clearly later (44b, DH Im Ad, and 98a, DH Machur), as the LECHEM MISHNAH (Hilchos Nizkei Mamon 8:4) and the GILYON HA'SHAS (90b) point out (see also RASHASH here).

The NETZIV points out that Rashi's source might be from the fact that Rebbi Yehudah cites as his source the verse, "v'Hu'ad bi'Va'alav." According to the other Rishonim, the Derashah is really from the end of the verse, from the words, "ha'Shor Yisakel v'Gam Be'alav Yumas" -- "the Shor shall be stoned and also its owner shall die," implying that there *was* an owner at the time that it was put to death, and that the Shor was not made Hefker or Hekdesh, as TOSFOS (DH she'Ne'emar) writes. Why, then, does Rebbi Yehudah quote the earlier verse?

According to Rashi, the Gemara had to bring the verse of "v'Hu'ad b'Va'alav" in order to show that the owner at the time of the Negichah was the same as the owner at the time of the Sekilah of the Shor (see Rashi DH v'Hu'ad).

According to Rashi, why did Rebbi Yehudah say only that the verse exempts the owner from payment when he is Mafkir or Makdish the animal? He should be exempt even if he sold it!

It could be that Rebbi Yehudah mentions Hekdesh and Hefker since the Beraisa cited in our Gemara and the Tosefta (4:6) record this Halachah of Rebbi Yehudah as a sequel to the Halachah that he teaches in the Mishnah later (44b). Rebbi Yehudah teaches there that if the Shor that gored was Hefker or Hekdesh (at the time that it gored), then it is exempt from Misah and is not killed. Rebbi Yehudah now adds that if the Shor is Hefker or Hekdesh at the time of the G'mar Din, then its [former] owner is also exempt from paying. Since, with regard to *Misas ha'Shor* Rebbi Yehudah mentions Hefker and Hekdesh (because selling the ox before the G'mar Din does not exempt the Shor from Misah), therefore he continues to discuss a Shor of Hefker and Hekdesh, even though his Halachah (that the owner is exempt from payment) applies equally to a Shor that was sold.

Alternatively, Rebbi Yehudah mentions only a Shor that was made Hefker or Hekdesh in order to teach an additional Chidush: If the former owner is exempt from payment even when he was the ox's only owner (since Hekdesh and Hefker is akin to being ownerless), then certainly he is exempt when he sells it to someone else, in which case the Shor has two owners (the former owner and the present owner).