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Kesuvos 41
KESUVOS 41 (5 Iyar)- Dedicated by Marsha and Lee Weinblatt of N.J. -- they,
and their extended family, should be blessed with good health and the joy of
those who serve Hashem. May we soon merit to see the return of Hashem to
Zion!
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1) [line 2] AL PI ATZMO - based on his own admission
2) [line 4] 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 by 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
doing 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) A thief does not pay Kefel if he steals Shtaros (bills of ownership or
promissory notes). Most Tana'im hold that a thief does not pay Kefel if he
steals land or slaves (Bava Kama 117b).
(e) 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 if 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).
3) [line 4] TASHLUMEI ARBA'AH VA'CHAMISHAH (a thief's quadruple and
quintuple restitution for the theft 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 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 Sukah 30:2), 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 if 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 at the end of the third Perek of Kesuvos).
4) [line 17] NICHA LAH L'DIDAH - if she prefers [to endure the bad
reputation in order to obtain the Kenas payment]
5) [line 23, 25] PALGA NIZKA MAMONA / KENASA HU
(a) An ox (or other animal) that gores one or two times is referred to as a
Tam. The owner only pays half the value of the damages (Chatzi Nezek) that
his ox causes through goring, with a maximum of the full value of the ox
that gored. 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. If the ox
damages from then on, the owner has to pay the full value of the damages
(Nezek Shalem) that his ox causes through goring. He is held more liable
since it is now evident that the ox's nature has changed to that of a
harmful and injurious animal, and its owner therefore knows that he must
guard it well.
(b) The Amora'im argue (Bava Kama 16a) as to why the Torah decreed that the
owner of a Tam pays Chatzi Nezek and not Nezek Shalem. One opinion holds
that by law he should pay Nezek Shalem because he did not guard his ox
properly, but the Torah was lenient (since the ox has not been proven to be
a harmful animal) and exempted him from half of the damages. According to
this opinion, Chatzi Nezek is "Mamona" (compensation) and not "Kenasa" (a
fine imposed by the Torah). The other opinion feels that by law the owner
should be entirely exempted from paying the first three times that his ox
causes damage, since oxen are relatively docile and do not have to be
constantly watched to prevent them from causing damage. Even so, the Torah
imposed upon him a fine of Chatzi Nezek, so that he should guard his ox more
carefully in the future. According to this opinion, Chatzi Nezek is Kenasa
and not Mamona.
(c) The distinction between the payment of Mamon and the payment of Kenas
occurs when the owner of the ox admits, without the testimony of witnesses,
that his ox caused damage. According to the opinion that maintains Palga
Nizka Mamona, he must pay for half of the damages. But the opinion that
maintains Palga Nizka Kenasa rules that he is exempt from payment since a
person does not have to pay Kenas if he admits to his guilt of his own
accord. (See above, entry 3d.)
6) [line 26] SHEVARIM LAV B'CHEZKAS SHIMUR KAIMEI - oxen are not considered
docile and have to be constantly watched to prevent them from causing damage
7) [line 31] KI HEICHI D'NINTEREI L'SHOREI - so that he will guard his ox
8) [line 32] SIMAN HIZIK MAH V'HEMIS KLAL - this is a mnemonic device that
describes the following four Sugyos with the opening words of the Sugyos,
respectively.
1. *Hizik* refers to *ha'Nizak veha'Mazik* b'Tashlumin... (line 33);
2. *Mah* Bein Tam l'Mu'ad... (line 43);
3. *v'Hemis* refers to *Hemis* Shori Es Ploni... (Amud Beis, line 2);
4. *Klal* refers to Zeh *ha'Klal*, Kol ha'Meshalem... (Amud Beis, line 9)
9) [line 37] PECHAS NEVEILAH - the depreciation in value of the carcass of
the dead animal
10) [line 43] HA'TAM MESHALEM CHATZI NEZEK MI'GUFO - the owner of a Shor Tam
only pays half the value of the damages that his ox causes, with a maximum
of the full value of the ox that gored
b) [line 43] MU'AD MESHALEM NEZEK SHALEM MIN HA'ALIYAH - the owner of a
Shor ha'Mu'ad pays the entire value of the damages that his ox causes, and
the payment is collected from his most valuable property
11) [line 44] TANA V'SHIYER - the Tana taught certain Halachos in the
Mishnah and left out other Halachos
12) [last line] MAI SHIYER D'HAI SHIYER? - What else did the Tana leave out
so that he should also leave this out?
13) [last line] CHATZI CHOFER
(a) CHIYUV KOFER - If a person's Shor ha'Mu'ad (see above, entry #7) kills a
person, the owner of the ox is Chayav Misah b'Yedei Shamayim. 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.
(b) CHATZI CHOFER - Although the owner of a Shor Tam pays half of the
damages that it causes, there is a Machlokes Tana'im as to whether he pays
half of the Kofer if his ox kills a person. Rebbi Eliezer learns that he is
exempt from the verse, "u'Ba'al ha'Shor Naki." (Bava Kama 41b). Our Gemara
brings the opinion of Rebbi Yosi ha'Gelili, who rules that the owner does
pay Chatzi Chofer.
41b---------------------------------------41b
14) [line 17] TIYUVTA, V'HILCHESA?! - [The Gemara has just brought] a
refutation [of the opinion of Rav Huna brei d'Rebbi Yehoshua, that Chatzi
Nezek is a fine,] and [it then rules that] the Halachah [follows his
opinion]?!
15) [line 19] LO PESIKA LEI - it cannot be stated in an unqualified manner
16a) [line 22] HAI KALBA D'ACHAL IMREI - a dog that ate lambs
b) [line 23] V'SHUNRA D'ACHAL TARNEGOLEI - and a cat that ate chickens
17) [line 25] V'IY TAFAS LO MAFKINAN MINEI - and if he (the owner of the
lambs or chickens) seized [the money or possessions of the owner of the
dog/cat to cover his losses], we (Beis Din) do not force him to give it back
18) [line 26] IKAV'U LI ZIMNA L'ERETZ YISRAEL - Set a [court] date for me in
Eretz Yisrael (where Beis Din has the authority to charge Kenas) [and force
the owner of the dog/cat to go there with me]
19) [line 27] MESHAMTINAN LEI (SHAMTA / NIDUY) - we put him in Niduy
(excommunication)
(a) The minimum period of Niduy is thirty days in Eretz Yisrael or seven
days in Bavel and elsewhere. If the Menudeh does not repent from his ways he
is put into Niduy for a second thirty-day period. If he still does not
repent, he is then put into Cherem. The laws of Cherem are much more
stringent.
(b) No one may come within four Amos of the Menudeh, except for his wife and
family. He is not permitted to eat or drink with other people, nor is he
included in a Zimun or any other Mitzvah that requires a quorum of ten men.
He may not wash his clothes, shave or take a haircut or wear shoes. Learning
and teaching Torah, however, are permitted, as well as engaging in work. The
last two are not permitted to a Muchram, who must learn by himself and
engage in work to the minimum that will provide him daily sustenance. People
may speak with the Menudeh or the Muchram unless Beis Din specifically
prohibits it.
(c) Even if the period of Cherem or Niduy has ended, a person remains in
Niduy or Cherem until he is permitted by three commoners or by an expert
sage (SHULCHAN ARUCH Yoreh De'ah 334:27 and REMA ibid. 334:24)
20) [line 30] KELEV RA - a bad-tempered dog; i.e. a dog that barks at anyone
with which it is not familiar (and frightens people and causes pregnant
women to miscarry) (YAM SHEL SHLOMO Bava Kama 7:45)
21) [line 31] "...V'LO SASIM DAMIM B'VEISECHA..." - "[When you build a new
house, you must make a guardrail for your roof;] so that you shall not shed
blood in your house [because the falling person will fall from it.]"
(Devarim 22:8) - The Torah commands that a guardrail that is at least ten
Tefachim high be built around the roof of one's home (or balcony) in order
to prevent calamities. The guardrail must be strong enough to support the
weight of a person who is leaning. Additionally, from the words "v'Lo Sasim
Damim b'Veisecha," it is learned that one may not allow any dangerous
situation to remain in one's house. A person may not leave an uncovered pit
in his courtyard, or leave a weak ladder in his house. If he owns a
bad-tempered dog, he also transgresses this Lav. (SEFER HA'CHINUCH #547)
*****PEREK #4 NA'ARAH SHE'NISPATESA*****
22) [line 35] TEFUSAH - a girl who was raped (using the language of the
verse, "...v'Tafsah v'Shachav Imah..." -- Devarim 22:28)
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