JewishAudio on chabad.org. We will be מסכת בבא קמא דף י״ג. We will start the fourth line from the beginning of the עמוד. And here the גמרא will discuss the ברייתא that the גמרא brought before, in order to explain the words of the משנה. In the משנה it said that one condition for the payment of damage is if it was נכסים שאין בהם מעילה, נכסים such property that if a person would have had use from it, there wouldn't be a דין מעילה, because the דין is that if somebody has any benefit from הקדש, from property that belongs to הקדש he is considered a מועל בהקדש. So the משנה says that only if it was a kind of property that if somebody would have had benefit from it, he would not have been מועל, only concerning such property if you damaged it you have to pay. And the גמרא explained that from here we see that it is a possibility that you should have property which is הקדש, but nevertheless you are not מועל and concerning such property you would be חייב if you would cause damage. Because if the משנה would mean that you are only חייב concerning property that's not הקדש at all, the משנה would have said נכסים של הדיוט, property which is of הדיוט, of an ordinary person and not of הקדש. Since the משנה phrases it that it's only concerning נכסים שאין בהם מעילה, property which you are not מועל, in other words, it doesn't depend on whether it's הקדש or not, it depends on whether you are מועל or not. So this shows that there is a possibility for property to be הקדש and nevertheless you shouldn't be מועל. And the

גמרא said that that fits according to רבי יוסי הגלילי who says that קדשים קלים ממון בעלים. That such קרבנות which are קדשים קלים, the lower level, the easier level of קדשים, so it is still considered ממון בעלים, it is considered property of the owner and therefore, if a person would cause damage to someone else's קדשים קלים, then the דין would be that he would be חייב to pay. And now the גמרא is going to discuss the ברייתא itself where it says that רבי יוסי הגלילי holds that קדשים קלים ממון בעלים. And the גמרא says גופא, now we will discuss the גוף of the ברייתא we brought before, the ברייתא itself. It said in the ברייתא ומעלה מעל בה׳, it quotes the פסוק: ומעלה מעל בה׳, if he will do a sin against ה׳. This refers to a person who denied money that he owed to somebody and then he admitted it, so there are certain דינים of what kind of payment he has to make, and a קרבן he has to bring, etc. So in addition to the words וכחש בעמיתו, which means that he denied his friend, that he denied the money he owed to his friend, the תורה also adds the words ומעלה מעל בה׳, that this person did a sin against ה׳. So what do these words come to tell us? לרבות קדשים קלים שהם ממונו, to teach us that also קדשים קלים is the money of the person. Because the פסוק says that by denying this money against his friend, he's also denying against ה׳, so it comes to tell us that there is a possibility for denying against ה׳, which means denying something which is holy and nevertheless, you should be חייב for it as if you denied your friend's money. Now how could that be? So that comes to tell us that there is such a thing as קדשים and it is holy, it belongs to ה׳, and nevertheless it is considered וכחש בעמיתו, that you denied money of your friend. So what is that? That refers to קדשים קלים, the lower level of קדשים, those קרבנות which are in the category of קדשים קלים, that if you denied the קדשים קלים that belongs to your friend, even though they are קדשים, nevertheless you are חייב because קדשים קלים is still considered the money, the property of your friend. דברי רבי יוסי הגלילי, that's the opinion of רבי יוסי הגלילי. And the ברייתא continues,

בן עזאי אומר, בן עזאי says לרבות את השלמים, that these words ומעלה מעל בה׳, that come to tell us that there is a possibility of something which is holy, which belongs to ה׳ and when you deny it you go against ה׳, nevertheless it should be considered your friend's property, private property, that comes to include שלמים. That an animal which is a קרבן שלמים, which was set aside to become a קרבן שלמים, and שלמים is one of those which are in the category of קדשים קלים, so if a person denies the שלמים, it is considered that he denies the money that belongs to his friend because שלמים is ממון בעלים. And the גמרא will explain what he comes to exclude, what he means when he says it comes to tell us that שלמים is ממון בעלים and what not? So the גמרא will explain that. Then the ברייתא continued, אבא יוסי בן דוסתאי אומר, אבא יוסי the son of דוסתאי says לא אמר בן עזאי אלא בבכור בלבד, that בן עזאי only said it concerning בכור. בכור is the firstborn animal, and the דין is that when an animal is a בכור it has to be brought as a קרבן on the מזבח, and it is קדשים קלים. So אבא יוסי בן דוסתאי says that when בן עזאי said that this פסוק comes to include something, he only said it comes to include בכור, that בכור, the firstborn animal, which is קדשים, is nevertheless considered ממון בעלים. Now the גמרא will explain this ברייתא. אמר מר, we had just learned before, בן עזאי אומר, בן עזאי says, לרבות את השלמים, that this פסוק, ומעלה מעל בה', comes to add to include שלמים, that שלמים is considered ממון בעלים. So the גמרא asks, למיעוטי מאי? What does he come to exclude? When he says it comes to include שלמים, obviously he's trying to tell us that not all קרבנות which are קדשים קלים are private property. Since he says it comes to include שלמים, so it's as if he's telling us that only שלמים is considered ממון בעלים, but another type of קדשים קלים is not considered ממון בעלים. So which type of קדשים קלים does he come to exclude? The גמרא says, אילימא, if you will tell me, למיעוטי בכור, that he comes to exclude בכור, the firstborn animal, which is also a קרבן and is also קדשים קלים, and he comes to tell us that only שלמים is considered private property, but בכור is not considered private property, we couldn't say that, because השתא, now, ומה שלמים, if שלמים, שטעונים סמיכה, שלמים is a stricter level, a higher level of קדשים within קדשים קלים itself, because we see that שלמים needs סמיכה, when you bring a קרבן שלמים, you have to put your hands on the קרבן, that is סמיכה, ונסכים, you have to bring נסכים along with the שלמים, and as רש''י explains, there are certain מנחות, certain קרבנות of flour that has to come along with the שלמים, and רש''י tells us exactly how much you need, three עשרונים for a פר, two עשרונים for an איל, and one עשרון for a כבש, so there are certain extra things that come along together with the שלמים. That shows us that שלמים is a stricter, higher level of קדושה, and also needed תנופת חזה ושוק, you must take off the חזה ושוק, the breast and the thigh of this animal and give it to the כהן. That itself shows that there is a stricter level of קדושה concerning שלמים. And still אמרת, you're still saying, ממון בעלים הוא, that this שלמים is still considered private property, property of its owner, בכור מבעיא, so certainly a בכור would be private property. So we can't say that when he said it comes to include שלמים, what he meant was to exclude בכור, that only שלמים is considered ממון בעלים, and a בכור is not considered ממון בעלים, that couldn't be, because if a שלמים is ממון בעלים, certainly a בכור has to be ממון בעלים, because שלמים is a higher level of קדושה than בכור. And רש''י explains that when the גמרא speaks about בכור here, it is about בכור בחוץ לארץ. We're talking about a בכור that was born in חוץ לארץ, outside of ארץ ישראל, that even in the time of the בית המקדש, when a regular בכור would be a קרבן on the מזבח, but as the גמרא said earlier, that a בכור that came from חוץ לארץ, according to רבי שמעון, didn't necessarily have to be a קרבן. It is only if the owner brought this בכור to ירושלים, then it would be a קרבן on the מזבח, but there is no דין that a בכור has to be brought from חוץ לארץ to become a קרבן on the מזבח. So concerning such a בכור, which is not חזי להקרבה, which is not ready to go as a קרבן on the מזבח, so this בכור is definitely considered ממון בעלים. And this is what the גמרא asks, that when he said that the פסוק ומעלה מעל בה' comes to tell us that שלמים is ממון בעלים, is private property, so we couldn't say that he comes to exclude בכור, that a בכור is not considered ממון בעלים, because if שלמים, which is a higher level of קדושה, is private property, certainly בכור, which is a lower level of קדושה, as we see that it doesn't have סמיכה, נסכים, and תנופת חזה ושוק, certainly it should be ממון בעלים.

אלא אמר רבי יוחנן, so therefore רבי יוחנן said, that what does he come to exclude? למיעוטי מעשר, he comes to exclude מעשר בהמה, because there is a דין that every tenth animal of your herd you must give as a קרבן to ה', and that is called מעשר בהמה. The way they would do it is, they would take all the animals into the barn, and open a little opening, a narrow opening, and have all the animals go out, and they would count, one, two, three, four, five, six, seven, eight, nine, and the tenth one that would come out, they would whip him with a colored whip, and that would make a color, a stain on the animal, and they would know that this animal is מעשר. And then they would continue again, one, two, three, up to ten, and the next tenth would also be מעשר. And the דין is that the מעשר בהמה, the tenth animal that came out, is a קרבן to ה', and this is קדשים קלים. So when he said that this פסוק comes to tell us that שלמים is ממון בעלים, it comes to exclude מעשר, that מעשר בהמה is not considered ממון בעלים, even though, even if it's קדשים קלים. דתניא, as we learn in a ברייתא, בבכור נאמר, by בכור it says in the תורה, לא תפדה This is a פסוק in פרשת קרח. The פסוק says, אך בכור שור או בכור כשב או בכור עז לא תפדה קדש הם, that a בכור cannot be redeemed because it is holy. And nevertheless, even though the תורה says you should not redeem it, the דין is that you just can't take the meat of a בכור and sell it as regular meat. It'll go away from its קדושת בכור. That you're not allowed to do. But nevertheless, ונמכר תם חי, while it doesn't have a blemish, you're allowed to sell it while it's alive. ובעל מום, if it does have a blemish, you're allowed to sell it חי ושחוט, while it's alive and if it is geschacht. Because if it doesn't have a blemish, and you will sell it while it's alive, the buyer or will wait till it gets a blemish, and then he will shecht it, because the דין is that after it gets a blemish, you're allowed to use it as regular meat, or in the time of the בית המקדש, he would take it without the blemish and bring it as a קרבן. But if it has a מום, then you could sell it חי או שחוט, you could sell it while it's alive or while it is after שחיטה. So we see that even though you can't redeem it, nevertheless the דין is that you are allowed to sell it. But מעשר נאמר, by מעשר בהמה it says, לא יגאל. And this is a פסוק in פרשת בחוקותי, קפיטל כ"ז in פסוק ל"ג. In פסוק ל"ב, it starts by saying, וכל מעשר בקר וצאן כל אשר יעבר תחת השבט העשירי יהיה קדש לה', that all tenth from בקר וצאן, from the cattle, the one that'll go through the whip, the tenth one should be holy. And the next פסוק says, לא יבקר בין טוב לרע ולא ימירנו ואם המר ימירנו והיה הוא ותמורתו יהיה קדש לא יגאל. So the end of the פסוק, לא יגאל, means that it cannot be redeemed, but here the תורה uses the term not the לשון of פדיון, but the לשון of גאולה. So from that לשון, we learn out that ואינו נמכר, it cannot be sold, לא חי ולא שחוט, not while it's alive, not after it was geschacht, לא תם, not without a blemish, ולא בעל מום, and not if it does have a blemish. And the reason רש"י says why we say that the words לא יגאל that says by מעשר means that you can't sell it at all, because we make a גזירה שוה. The פסוק here says לא יגאל. A few פסוקים earlier that speaks concerning חרם, which is הקדש that you make to the בית המקדש, so the פסוק says, אך כל חרם, that's פסוק כ"ח, אך כל חרם אשר יחרם איש לה' מכל אשר לו מאדם ובהמה ומשדה אחזתו, that any חרם a person will make to ה', well the פסוק says, לא ימכר ולא יגאל, shall not be sold and shall not be redeemed. So since we see here concerning חרם the תורה also uses the לשון לא יגאל, and together with the לשון לא יגאל, it says לא ימכר, that means that where the תורה says לא יגאל, it also includes that it shouldn't be sold. Not only shouldn't it be redeemed as it is, but it also shouldn't be sold. So therefore, we learn out that also the פסוק that says לא יגאל by מעשר also means that not only לא יגאל, but also shouldn't be sold. So from there, we know that מעשר cannot be sold at all. So we see that מעשר is in a higher level of קדושה than בכור. So that's what the פשט in the words of בן עזאי is. When he said that it comes to include שלמים, that שלמים is ממון בעלים, and we asked what does he come to exclude? So we said it couldn't exclude בכור, so now we're saying it comes to exclude מעשר בהמה. As מעשר בהמה is also קדשים קלים, and nevertheless, since the דין by מעשר בהמה is that you cannot sell it, it is not really ממון בעלים, and that's what בן עזאי meant. רבינא מתני לה אסיפא. רבינא learned this whole discussion not concerning the words of בן עזאי that he said לרבות את השלמים, but on the סיפא of the ברייתא. That's where he learned this whole discussion. The סיפא of the ברייתא, it says, אבא יוסי בן דוסתאי אומר, that אבא יוסי, the son of דוסתאי, says, לא אמר בן עזאי אלא בבכור בלבד, that בן עזאי said this דין that קדשים קלים is ממון בעלים, he only said it concerning בכור. And there we had the question, למעוטי מאי, what does he come to exclude? What does he want to say is not considered ממון בעלים? אילימא, if you're going to say למעוטי שלמים, he comes to exclude שלמים, that he wants to argue and say that שלמים is not considered ממון בעלים, only בכור, we couldn't say that, because we could make a קל וחומר: ומה בכור שקדוש מרחם, that if we see that a בכור, which is holy from the womb, a בכור is holy from the moment it is born, just because it is the firstborn it is holy, it is supposed to be a קרבן, nevertheless we say ממונו הוא, it's still considered the private property of the owner, שלמים מיבעיא? So certainly שלמים, because שלמים becomes through the owner. The person makes his animal, which is חולין, he turns it into שלמים. So if an animal which was originally a קרבן is considered his private money, certainly שלמים which was made into a קרבן through the person, is certainly should certainly be considered his money. So we can't say that he comes to exclude שלמים. So, on that, אמר רבי יוחנן, רבי יוחנן said, למעוטי מעשר, what he meant was to exclude מעשר בהמה. כדתניא, as we learned in that same ברייתא that we brought before, בבכור נאמר, by בכור it says לא יפדה, it shouldn't be redeemed, and we learned that ונמכר תם חי, that it could be sold, without a blemish could be sold only alive, ובעל מום חי ושחוט, if it has a blemish it could be sold alive or after you shecht it. ובמעשר נאמר, by מעשר it says לא יגאל, it shouldn't be redeemed, and there the דין is, as he said before, ואינו נמכר, it cannot be sold, לא חי ולא שחוט, not alive and not after you shecht it, לא תם ולא בעל מום, not without a blemish, not with a blemish. So therefore, מעשר is in a higher level of קדושה than בכור. That's what he meant. When he said that the בן עזאי only said that it is ממון בעלים concerning בכור, he meant to exclude מעשר, but he did not mean to exclude שלמים. The גמרא asks, how can you say that? והא בבכור בלבד קאמר, didn't he say the expression that בן עזאי only said it concerning בכור? So, he used the term "only בכור". So, how can you say he only comes to exclude מעשר, but שלמים is included, when he says בפירוש that he only said the דין only concerning בכור? קשיא, the גמרא said, that is a קשיא, that טאקע has no תירוץ, that is a קשיא on this opinion. Then the גמרא goes back to the original question we had before. The question was, when a משנה says that the only time you are חייב to pay for נזק, if it was done to נכסים שאין בהם מעילה, to such property that a person would not be מועל בהקדש if he had use of that property, so we were מדייק that from here we see that there is a possibility for נכסים, for property, to be הקדש, and nevertheless, a person should not be מועל. That's the reason why the משנה used the term נכסים שאין בהם מעילה, נכסים that you are not מועל, and didn't use the term נכסים which are not הקדש. So,

רבא says, מאי נכסים שאין בהן מעילה, what does the משנה mean with property that there is no מעילה in those property? נכסים שאין בהם דין מעילה, property that there is no דין of מעילה in those property, it cannot be a דין of מעילה. ומאי נינהו, which are those property? דהדיוט, from an ordinary person. It טאקע comes to exclude property of הקדש, and the only time you are חייב for a נזק if it was done to property of הדיוט, of an ordinary person. But then the גמרא asks, if so, וליתני, let the משנה say דהדיוט. Why does the משנה have to say נכסים that you are not מועל, that has no דין of מעילה? The משנה should have said you are חייב only for נכסים of הדיוט. קשיא. So, that is a קשיא. That's a קשיא on the opinion of רבא. Then the גמרא continues, אמר רבא, רבא said, שלמים שהזיקו, if שלמים caused damage, someone owned a בהמה, and that animal was a קרבן שלמים, was set aside to be a קרבן שלמים, and that animal caused damage. And according to the opinion of רבי יוסי הגלילי, שלמים is still ממון בעלים, it's still the money of the owner. So, then the owner who owned the שלמים would be obligated to pay for the damage. So, the דין is that גובה מבשרן, when you come to collect, you only collect from the meat, ואינו גובה מאימוריהן, and you would not collect from the אימורים. This is referring to the case that the שלמים was a תם. This animal that caused the damage was not a מועד, but was a תם. And we know the דין is that when a תם causes damage, so first of all, you only pay חצי נזק, you only pay half of the נזק, since it was the first and or second or maybe even third time that it caused the damage. So, the דין is that you only pay חצי נזק, plus that חצי נזק itself is paid מגופו, and not מן העלייה. מן העלייה means that you pay no matter what. Whatever the amount of money that you have to pay, that is the amount of money you have to pay. But if you pay מגופו, it means that that amount of money that you have to pay, you only pay that if the animal itself that caused the damage is worth that amount of money. But if the animal that caused the damage is worth less than the amount of money that you have to pay, so you only pay up to the amount of money that the animal was worth. That is called מגופו, meaning from the body, you only pay it out of the body of the מזיק. And if the מזיק was worth less than the amount of money that you have to pay, then you only pay that amount of money. For instance, if a תם caused damage worth a hundred dollars, then the owner has to pay fifty dollars חצי נזק. And let's say the one, the שור, that ox that caused the damage was only worth forty, so then you don't pay fifty, which is the חצי נזק, you only pay forty out of the fifty that you have to pay, because that is the amount of money that the מזיק is worth, and you only pay מגופו. So, he says here, if this שלמים was a תם, תם and the שלמים caused damage, so when you come to collect from this animal מגופו, you're only taking in consideration the amount of money the meat of the שלמים is worth, because that is considered the ממון of the בעלים. But you do not take in consideration the amount of money that the אימורים are worth, because the אימורים are part of the קרבן, that is what goes on the מזבח, so you do not take in consideration the amount of money that the אימורים were worth. For instance, if this שלמים that caused the damage was worth altogether fifty שקלים, and the damage it caused was worth a hundred שקלים. So since he has to pay חצי נזק, so you have to pay fifty שקלים. So we don't say that you have to pay fifty שקלים, being that the מזיק is worth fifty שקלים, and you have to pay מגופו, and the גוף of the מזיק in this case is worth the amount of money of the חצי נזק, so you have to pay the whole thing, so we

say no, since part of this animal is the אימורים, so the אימורים cannot be taken in consideration. So let's say if the animal itself is worth forty, the meat is worth forty, and the אימורים are worth ten, so he would only have to pay forty because you do not take the amount of money the אימורים are worth into consideration of the payment. That is not part of מגופו that you have to pay from. The גמרא asks, if you're going to tell me that, פשיטא, that is very simple. אימורים לגבוה סלקי, don't the אימורים go to השם? They go on the מזבח, so certainly that is not considered part of the animal that you are able to take in consideration when you pay מגופו. And the גמרא answers, לא, לא צריכא, it has to tell us a different חידוש: למיגבא מבישרא כנגד אימורין, that you do not collect from the meat against the אימורים. This is in a case where the meat is worth enough for the חצי נזק, but what we say here is that since the whole animal caused the damage, and the animal is made up of two parts: part of it is meat, and part of it is the fat, the אימורים that goes on the מזבח. So it's as if in this damage there was a partnership: the meat, which belongs to the owner, which is the ממון בעלים, and the fats, which is הקדש that goes on the מזבח, they together caused the damage. So even if the meat has enough money to pay for the חצי נזק, he doesn't have to pay full חצי נזק. Because he could say that part of the damage was done through the אימורים, and I am not responsible to pay for the damage that the אימורים caused. So therefore, if, for instance, the complete חצי נזק was worth $50, and the אימורים are worth $50, he wouldn't have to pay the complete חצי נזק, because he could, he could say that part of the חצי נזק is under the responsibility of the אימורים. So we would have to estimate how much of the animal the אימורים is, and we would deduct the proportion of the היזק that was done through the אימורים, and he would not have to pay the full $50. So therefore, even if there is $50 in the meat, he still wouldn't have to pay $50, even though we say that you pay מגופו, because the meat is not fully responsible for the היזק, the אימורים is also partially responsible. So he would have to pay less than $50, we would have to deduct the proportion of the היזק that was done through the אימורים. Then the

גמרא asks: אליבא דמאן? According to which מאן דאמר did he say this דין? אי אליבא דרבנן, if he said it according to the רבנן, פשיטא! It is simple that you would not have to collect from the meat against the part of damage that was done through the אימורים. Because הא אמרי, don't the רבנן say, כי לית ליה לאשתלומי מהאי לא משתלם מהאי, if you cannot collect from him, you do not collect from the second? And as רש"י brings, there's a מחלוקת between the רבנן and רבי נתן later on in פרק הפרה, דף נ"ג, concerning a דין that if an ox that belongs to a person pushed another ox that belongs to somebody else into the pit of a third person, so the רבנן say there, that if the ox that pushed was a תם, so the owner of the ox pays a quarter, and the owner of the בור doesn't pay anything. The reason he pays a quarter is because normally a תם pays half. So here, if everything would be only on his responsibility, the owner of the ox would have to pay half. Since the second ox died or was damaged not just by the first ox, but a combination of both: it's because of the first ox and the pit it fell in. So really, both of them are partners in the damage. So the owner of the ox says that I only pay half of what I normally would have to pay. So since normally he would have to pay חצי נזק, half of the נזק, so now he only pays a quarter of the נזק. But on the other hand, the בעל הבור, the owner of the pit, doesn't pay anything, because he says that if not for your ox that pushed him into the pit, my pit would not have caused any damage. And therefore, he is פטור. And the same applies by a מועד. Normally by a מועד, the owner of the שור has to pay full נזק. In this case, He only pays half of the נזק, because he says that if not for the pit, then maybe he wouldn't have been damaged, so I, I only pay half of the damage because it's a partnership between me and the בור, and the בעל הבור, the one that owns the pit, he is פטור completely, because he says that if not for your שור pushing him in, my בור would not have caused damage, and therefore he is פטור. And we do not say that the owner of the damaged שור comes should come to the בעל הבור and say to him, "Since I cannot get the other part of the נזק from the בעל השור, I want you to give me the rest of the נזק, since it fell into your בור." We do not say that. What we say is כי לית לך לאשתלומי מהאי לא משתלמת מהאי.

Even if you cannot get your full payment from him, you do not get the rest of the payment from the other one. Even though you can't get the full payment from the בעל השור, you cannot come to the בעל הבור and complain and say, "Well, the rest of the payment should come through you." We do not say that. So according to the רבנן, who say that we do not say that, so certainly we wouldn't say that here too. Why should we think that here we should collect from the meat the rest of the money that is owed by the אימורים, by the fat that's gone on the מזבח? So why did he have to tell us this דין, that when the שלמים damage, you do not collect the complete חצי נזק based on how much meat there is, but you also take in consideration that the אימורים caused the damage, and the בשר only gives proportion of how much damage it caused? It's very simple, because the רבנן hold that you only pay as much as you have to pay, and you do not have to pay the difference that cannot be collected from the other party. So according to the רבנן, he wouldn't have to tell us this דין. ואי אליבא דרב נתן, and if you're going to say he's telling us this דין according to רב נתן, רב נתן over there in that case says that you do collect the rest of the money from the בור, from the owner of the בור. So according to him, it is a חידוש here that you do not collect from the meat for the amount of damage that was caused by the אימורים. But the question is, if his דין is according to רב נתן, why is the דין here that you do not collect? הא אמר, doesn't רב נתן say כי לית לך לאשתלומי מהאי משתלמת מהאי, that if you cannot collect the complete money from the owner of the ox, you do collect the rest of the money from the owner of the בור? So if so, here too, since you cannot collect the money from the אימורים, so you should collect that difference from the בשר, since you cannot collect it from the other part, from the other party, which is the אימורים. The גמרא answers, איבעית אימא רב נתן ואיבעית אימא רבנן. If you want, I could tell you that that this דין was said according to רב נתן, and if you want, I could tell you this דין was said according to the רבנן. איבעית אימא רבנן, if you want, I could tell you it's said according to the רבנן. So the question we asked before, why we thought it couldn't go according to the רבנן, was because according to the רבנן, it is שיטה, it is very simple, that in a case where you are not responsible to pay, you don't pay even if he cannot collect the rest of the money from the other party. So we could say it still is a חידוש, because הני מילי בתרי גופי. When did the רבנן say their דין? By two parties, two גופים. There, there are two people responsible: the שור, the בעל השור, and the בעל הבור. So there we say that you cannot come to the בעל השור, to the owner of the ox, and say to him, "Since I cannot get my money from the other party, I want you to pay," that you cannot do, because he could always say, "Why am I responsible to pay for the money you cannot collect from him, from somebody else?" אבל בחד גופא, but in one body, like in the case over here, the damage was done through one body, through one ox, through this שלמים. It is just that in the שלמים itself, we have two parts, two חלקים: we have the בשר that belongs to the owner, and the אימורים that belongs to the גבוה, belongs to השם. So here you might think of the שור, so here too, why shouldn't we collect from the meat all the money, since you cannot collect it from the אימורים? So he says, because התם over there, הוא דאמר ליה בעל השור לבעל הבור, the owner of the שור says to the owner of the בור, the owner of the second שור, of the damaged שור, says to the owner of the בור, אנא תוראי בבירך אשכחתיה, "I found my ox, my damaged ox, in your pit. So as far as I'm concerned, you are responsible to pay. So therefore, מאי דלית לי לאשתלומי מהאי, whatever I cannot get paid from him, from the owner of the other ox, משתלימנא מינך, I will get paid from you." אבל הכא, but here, מי מצי אמר, can he say, בשר אזיק אימורין לא אזיק, that the meat caused the damage and the אימורים did not cause the damage? So since the אימורים also caused the damage, why should I, that owns the בשר, pay for that part of damage that the אימורים caused? Over there, as far as the ניזק is concerned, the בעל הבור is responsible completely, because the damage was found in in his property. So really he should pay, so whenever he cannot get from the other person, he gets from him. But here, we know for sure that they were both equally responsible: the בשר and אימורים. So why should the בעל הבשר be responsible to pay the difference that the אימורים cannot pay? And therefore here we say that we do not collect from the בשר for the part of damage that was caused by the אימורים. This is the first פשט that רש"י explains in this גמרא. But then רש"י

brings another פשט in the גמרא with a different גירסא in this גמרא: that when the גמרא answered לא צריכא, לגוביה מבשרן כנגד אימורין, that it comes to tell us concerning the collection of the meat against the אימורים, it was not the way we learned before, that he came to tell us that you do not collect from the meat for the part of damage that was caused by the אימורים, but just the opposite: that he comes to tell us that you do collect from the meat against the אימורים. And the גמרא later on, when it asks the question according to who it goes, the גירסא is just the opposite. And the גמרא asks, according to who is it? If it's according to the רבנן that said by the case of the שור and the בור that you do not collect from the בעל הבור that amount that the בעל השור does not give, so according to the רבנן the question was, why should it be different here? Why, over there we say the בעל הבור does not give, and here we say that the בשר does pay for the אימורין? And according to רב נתן who says over there the בעל הבור does give, the question was פשיטא, that just like over there we say that the בעל הבור pays the difference that the בעל השור does not, so too here it's obvious that the בשר should pay for that amount that you cannot collect from the אימורים. And the גמרא answered, the way we said before, the two תירוצים: according to the רבנן we could say that there's a difference between one גוף and two גופים, and according to רב נתן, over there he says that I found the my ox damaged in your בור, therefore you have to pay, while over here, he cannot say that. But רש"י says that this פשט is not the real good פשט, because from the לשון הגמרא is משמע that when the גמרא answered לא צריכא, לגוביה מבשרן כנגד אימורין, the גמרא meant that you do not collect from the בשר against the אימורין, because the המשך of the גמרא, the continuation of the גמרא seems to be that way. Because since he started off by saying that שלמים שהזיקו גובה מבשרן ואינו גובה מאימוריהן, that you do not collect from the אימורים, and on that the גמרא asks פשיטא, and on that the גמרא answered that it's לגוביה מבשרן כנגד אימורין, so it all seems to be saying that you do not collect from the אימורים, so according to the תירוץ it should mean that you do not collect from the בשר against the אימורים. But the other פשט would be saying that לכתחילה it said that you do not collect from the אימורים, and the תירוץ is that there is something that you do collect for the אימורים. So the לשון הגמרא is not משמע like that second פשט, and the לשון הגמרא is משמע like the first פשט, that he meant to say that you do not collect from the בשר for the damage that was done by the אימורים. Then the גמרא continues:

אמר רבא, רבא said, תודה שהזיקה, if a קרבן תודה caused damage, גובה מבשרה ואינו גובה מלחמה, you only collect from the meat, but you do not collect from the bread. קרבן תודה is a קרבן שלמים. It is a קרבן that a person is supposed to bring as a thanksgiving to השם. If a miracle happened to a person, then he has to bring this special קרבן to השם. That is, if a miracle of one of the four categories happened: or if he was sick and he became healthy, he was cured, or if he went across the ocean, or if he went across a desert, or if he was put in jail and he was released, so then you have to bring a קרבן תודה. And the דין by קרבן תודה is that you don't only bring an animal as a קרבן, but along with that animal you also must bring bread. There are forty breads that you must bring as part of the קרבן. So רבא says that if the animal, the תודה, caused damage, and this goes obviously according to רבי יוסי הגלילי who holds that קדשים קלים ממון בעלים, and תודה is a kind of שלמים, so it is קדשים קלים, so according to רבי יוסי הגלילי you would have to pay for the damage that was caused by the תודה. So he says that when the תודה caused damage, so when you collect, you only collect from the meat, you do not collect from the bread. And this is also speaking when the תודה was a תם, so the דין is that you only collect מגופו, so when you collect מגופו, you only collect from the amount of money that the animal is worth, and you don't take in consideration the amount of money that the bread that comes along with the תודה is worth. So the

גמרא asks: לחם, פשיטא! It's simple that you do not collect from the bread. Why should we think that you would have to collect from the bread? The bread did not cause any damage, it's the animal that caused the damage, but the bread did not! The גמרא answers: סיפא אצטריכא ליה. The חידוש is the end that he wanted to tell us, that it says there that ניזק אוכל בשר, the ניזק, the one that had the damage done to him, he eats the meat. Since you pay מגופו, so he would give away this תודה to the ניזק, so the ניזק eats the meat. But ומתכפר מביא לחם, but the מתכפר, the one that brought the קרבן תודה, who needs the כפרה, He is the one that brings the bread. So the גמרא asks, הא נמי פשיטא, isn't that also simple? Obviously, the one that has to bring the קרבן brings the bread. Why should we think the ניזק that collected the meat for the היזק, he should bring the bread? And the גמרא answers, no, מהו דתימא, I would think, כיוון דלחם הכשירא דזבחא הוא, since the bread is a הכשר to the קרבן, it is a continuation, an extension of the קרבן, לימא ליה, so let the מתכפר, the one that is obligated to bring the קרבן, the מזיק, let him say to the ניזק: את אכלת בשר, you're going to eat the meat, ואנא אייתי לחם, I should bring the bread? Since the bread is brought because of the קרבן, if the קרבן is going to be eaten by you, so you bring the bread. קא משמע לן, so that's why he has to tell us דלחם חובת בעלים הוא, that the bread is an obligation of the owner. It is not only a הכשר of the קרבן, but it is also an obligation of the owner, and therefore, who is supposed to bring the bread? The owner, the one that is bringing the קרבן. Then the גמרא continues, we

learn in the משנה: נכסים שהן של בני ברית, that only if you damage property that belongs to a ייד, only then are you obligated to pay. But the גמרא says, למיעוטי מאי? What does he come to exclude? אי למיעוטי דעובדי כוכבים, if you're going to tell me he comes to exclude a גוי, הא קתני לה לקמן, we learned that in a משנה later on. It says בפירוש in a משנה: שור של ישראל שנגח שור של עובדי כוכבים, an ox of a ייד gored an ox of a גוי, פטור, he is פטור. So we cannot say, it seems, that this is what the משנה is telling us here with the words נכסים שהם של בני ברית, when the משנה later on on דף ל"ז says בפירוש that you are פטור if you damage an ox of a גוי. And the גמרא answers, תנא, he learns it here, והדר מפרש, and he explains it, that really this is what the משנה means here. Ah, he says it בפירוש later, here he just tells us the general idea, and later he explains what it means. So here too, that is what we mean. Then it says in the משנה: נכסים המיוחדים, that it has to be property which is specific, belongs to somebody, that's the only time you are חייב. So the גמרא asks, למיעוטי מאי? What does it come to exclude? אמר רב יהודה, so רב יהודה said, למיעוטי, it comes to exclude: זה אומר שורך הזיק, one person says your ox damaged, וזה אומר, and the other one says, שורך הזיק, your ox damaged. That if there were many oxen standing in one place, and one of them caused damage, and we don't know which one caused the damage, and each one, the owner of each ox points the finger at the other and says that the other ox did it, so in a case like that you are פטור from paying, because it's not מיוחד, it is not exact, specified exactly who the מזיק is. So the גמרא says, the משנה couldn't mean that, because הא תני לה לקמן, that we learned later on בפירוש in the משנה. It says in the משנה there: היו שנים רודפים אחר אחד, if oxen that belonged to two separate people were chasing chasing after one ox, זה אומר שורך הזיק, so one of the two says that your ox did it, he tells the owner of the other ox that your ox is the one that caused the damage, וזה אומר, and the second one says שורך הזיק, your ox did the damage, שניהם פטורין, they are both פטור. So the משנה בפירוש tells us later this דין that if you do not know exactly who the מזיק is, you are פטור. So how can we say that when the משנה says here נכסים המיוחדים, it comes to tell us that same דין, that if we do not know exactly who the מזיק was, you are פטור? So the גמרא answers, תנא, he learns it here, והדר מפרש, then he explains it. So really it means the same thing, but here he doesn't tell us exactly what he means, he just tells us the general idea that it has to be נכסים מיוחדים, specified property, and later he explains what he means, that it means that you have to know exactly who the מזיק is. במתניתא תנא, in the

ברייתא we learned, פרט, this comes to exclude לנכסי הפקר, property of הפקר. If there is property that is ownerless, has no owner, so then you are פטור. And the גמרא asks, היכי דמי? What is this case? אילימא, if you're going to tell me, דנגח תורא דידן לתורא דהפקר, that one, an ox that belongs to one of us, an ox that has an owner, gored an ox of הפקר, that's what we mean, that if one of them is הפקר you are פטור, and what the משנה is trying to tell us that you are פטור to pay for the damage that was caused to the ox of הפקר, that's very simple. מאן תבע ליה? Who is going to claim? Since that ox that was damaged has no owner, so whom are you going to pay to? Who is going to claim the money that you should have to pay to? So that's obvious that you do not have to pay. The משנה couldn't mean that. אלא, so you must say, דנגח תורא דהפקר לתורא דידן, an ox that is הפקר gored one of our oxen, gored an ox that has an owner, and that's the דין that you're פטור, meaning that that ox that caused the damage is פטור. Why should he be פטור? ליזיל ולישקליה, let him go and take it! Since that ox caused his damage, and that ox has no owner, Let him grab that ox, and that will be compensation for the damage that he got. גמרא says, בשקדם וזכה ביה אחר, if someone else went and was זוכה in that ox which was הפקר before he managed to get it. And that is the דין, that that person who grabbed that ox is not obligated to pay for the damage that that ox did. That's what the משנה is trying to tell us, that if an ox of הפקר damaged an ox that belongs to a person, and then someone else grabbed that ox of הפקר, that other person is פטור from paying. רבינא אמר, רבינא says, למעוטי, it comes to exclude, נגח ואחר כך הקדיש, נגח ואחר כך הפקיר, if a

person's ox damaged, and after it damaged, it gored, the owner of the ox made it הקדש, or after it gored, the owner of the ox made it הפקר, so the דין is that he is פטור from paying. תניא נמי הכי, we learned the same thing in a ברייתא, it says there, יתר על כן אמר רבי יהודה, that רבי יהודה said even more, אפילו נגח ואחר כך הקדיש, even if it gored and then he was מקדיש this שור, or נגח ואחר כך הפקיר, it gored and then he was מפקיר this שור, פטור, that he is פטור, the owner of the מזיק is פטור, שנאמר, because the פסוק says, והועד בבעליו והמית איש, that the owner was warned, and the ox killed a person, וגומר, etc., so we learn out from this פסוק, עד שתהא מיתה והעמדה בדין שוין כאחד, that the death that this ox caused to the other person and the העמדה בדין, which means taking this ox to a דין תורה, taking him to בית דין, has to be together, meaning they both have to be when the ox belongs to the same person. But if after the ox gored, the owner was מפקיר the ox or מקדיש the ox, so by the time it came to העמדה בדין, to take the ox to the דין תורה, to the בית דין, so then it already belonged to somebody else. So there the דין is that the original owner is פטור. And as

תוספות says, the גמרא doesn't really mean to learn it out from the words והועד בבעליו והמית איש, because the והועד בבעליו the תורה says here does not refer to the time when you bring the ox to בית דין after it gored, but that refers to the time when you warn the owner before the ox gored yet. So really the גמרא means, תוספות says, the end of the פסוק, where it says והשור יסקל, and that refers to the time when the ox is taken to בית דין. So from that we learn out that you have to have the same בעלים, the same owner, at the time when the ox caused the damage, killed the person, and at a time when the בית דין said that the ox has to be stoned, which means the time of העמדה בדין. Then the גמרא asks: וגמר דין לא בעינן? And the end of the דין don't we need? From here it seems that only if he was מפקיר it or מקדיש it in between the damage and the העמדה בדין, and when the ox was taken to בית דין, that's when we say that the owner is פטור. But let's say he was מקדיש it or מפקיר it after the ox was taken to בית דין, but before the בית דין came out with the גמר דין, before the בית דין came out with the finish of the דין, with the פסק דין, then it would seem, from what we said before, that the owner would be חייב. But it shouldn't be so, because השור יסקל בגמר דין הוא דכתיב. This פסוק, השור יסקל, that this שור should be stoned, from where we learn out that the שור has to have the same owner throughout the whole process, that פסוק refers to the גמר דין, to the end of the דין. So really what should we say? That it has to have the same owner at the time of the damage, and the time of the being brought to בית דין, and the time when the בית דין comes out with the פסק דין. So why did we say before that it has to have the same owner at the time of the damage and the time of the העמדה בדין, which is the time when you take it to בית דין, and he didn't mention anything about גמר דין, as if we were saying that if he changed owners after that he was brought to בית דין, before בית דין gave the פסק, he would be חייב? The גמרא says, אלא אימא, so therefore we say, עד שתהא, that what we really meant to say was, until it has מיתה והעמדה בדין וגמר דין שוין כאחד, that it killed the person and was brought to בית דין, and בית דין came out with the גמר דין, all that has to be equal, all that has to be while it belongs to the same owner. But if in

between one of these times the ownership was changed because he was מפקיר it or מקדיש it, then this original owner would be פטור. Then the גמרא continues, we learn in the משנה: חוץ מרשות המיוחדת למזיק, except if it's a רשות that specially belongs to the מזיק, then you are פטור. And the גמרא gives the reason why, דאמר ליה, because the מזיק could say to the ניזק, תורך ברשותי מאי בעי? What's your ox doing in my רשות? Since your ox came into my רשות, and my ox damaged your ox, I am פטור, because what were you doing in my רשות to begin with? Then the משנה said: רשות הניזק והמזיק, if it was a רשות of the ניזק and the מזיק, and the גמרא will explain whether the משנה means that in a case like that, you are are חייב, or the משנה means in a case like that you are פטור. אמר רב חסדא אמר אבימי, רב חסדא said in the name of אבימי, חצר השותפין, if it's a yard that belongs to partners, the two people owned one yard, and the ox of one of the two caused damage to property of the other, so the דין is that חייב בה על השן ועל הרגל. You are חייב for שן ורגל. As we know, the דין by שן ורגל, if an animal causes damage through שן, through eating, or causes damage through רגל, through stepping on it, the דין is that you are פטור ברשות הרבים. If it was done in public property, then the מזיק is פטור, because the תורה says ובער בשדה אחר. The פסוק that tells us the דין of שן ורגל, which is the פסוק: ושלח את בעירה ובער בשדה אחר, so there the תורה says clearly that you are חייב if it was done בשדה אחר, in the field of the other. So therefore, you are פטור if it was done in רשות הרבים, but you are חייב if it was done in the רשות of the ניזק. Now here the question is: if it was done in a חצר השותפין? Because on one hand you could say that since it is also the רשות of the מזיק, you should be פטור, because in the רשות of the מזיק you are definitely פטור on שן ורגל. On the other hand you could say: but since it belongs to the ניזק too, it is considered the רשות הניזק and you should be חייב. So רב חסדא said in the name of אבימי, that in חצר השותפין you are חייב for שן ורגל. And it is considered that you did the damage בשדה אחר, in the field of the other. This is concerning שן ורגל.

Concerning קרן, you are definitely חייב, because as we learned before, קרן you are חייב even if it was done ברשות הרבים. It is only by שן ורגל that we say that ברשות הרבים it's פטור, but קרן is חייב ברשות הרבים also. So certainly קרן is חייב if it was done in the חצר of the שותפין. The חידוש is that even if it was שן ורגל, where normally you are פטור ברשות הרבים, but in the case of חצר השותפין you are חייב. והכי קאמר, and this is what the משנה means. Because when we look back at the משנה, concerning these words: ורשות הניזק והמזיק, there are two ways to learn. Because the words before these few words are חוץ מרשות המיוחדת למזיק, that if it was a רשות specially for the מזיק, then you are פטור. The words after those words of ורשות הניזק והמזיק, it says: כשהזיק חב המזיק לשלם תשלומי נזק במיטב הארץ, that if you caused the damage, you are חייב to pay. So the words before the words ורשות הניזק והמזיק mention something that you are פטור: except a רשות המיוחדת למזיק that you are פטור. The words after the words ורשות הניזק והמזיק are words that you are חייב. So we don't know: to where do we put these words ורשות הניזק והמזיק? Do they go in continuation to the words before that, that in the case of רשות מיוחדת למזיק you are פטור, so too רשות of the ניזק and the מזיק? Or do we say that these words go to the words afterwards, and what it means to say is that ורשות הניזק והמזיק כשהזיק חב המזיק, that if it happened in the רשות of the ניזק and the מזיק, and which means, as we are saying now, the רשות of the שותפין, then you are חייב. So according to רב חסדא in the name of אבימי, that he says that you are חייב for שן ורגל if it happened in a חצר השותפין, so he says that what does the משנה mean? חוץ מרשות המיוחדת למזיק דפטור. The words before these few words, where it says that if it happened in the רשות which is only for the מזיק you are פטור, so you stop there, and you continue: ורשות הניזק והמזיק כשהזיק חב המזיק, that if it happened in the רשות of the ניזק and the מזיק, in the חצר of the שותפין, then the משנה continues and says, if you caused the damage that way, the מזיק is חייב. And as רש"י explains, this refers to שן ורגל, because if it would be concerning קרן, it would be פשיטא. We know that a קרן is חייב, as we said before, even in the רשות הרבים. The משנה wouldn't have to tell us that you are חייב for קרן in the חצר השותפין. So definitely the חידוש of the משנה is in the case of שן ורגל. And what the משנה is saying is that if it was a רשות הניזק והמזיק, it was חצר השותפין, then כשהזיק חב המזיק, if you caused damage you are חייב, that even שן ורגל, which is only חייב ברשות הניזק, this is considered the רשות הניזק. But ר' אלעזר אמר, ר' אלעזר says: פטור על השן ועל הרגל. If it was a חצר השותפין, and the ox of one of the partners caused damage to the other partner in this yard which belonged to both, so if it was done through שן ורגל, you are פטור, because it is not considered the חצר הניזק. Because the תורה says: ובער בשדה אחר, it has to belong only to the אחר, only to the other party. But if it belongs to both, to the מזיק and to the ניזק, you are פטור for שן ורגל. And according to him, והכי קאמר, this is what the משנה means: חוץ מרשות המיוחדת למזיק, ורשות הניזק והמזיק נמי פטור. That the words before the words ורשות הניזק והמזיק, which are the words of רשות המיוחדת למזיק, there you are פטור. So he says that the words ורשות הניזק והמזיק are in continuation to the words before: that except the רשות which is specially for the מזיק, or a רשות which belongs to the ניזק and to the מזיק, it is a שותפות, so in both cases you are פטור. But then, when the משנה continues with the words כשהזיק חב המזיק לשלם תשלומי נזק במיטב הארץ, what does that mean? Since the words before that are a case where you are פטור, so what do these words mean when it says that when you cause the damage, you are חייב? So he says, לאתויי קרן, that comes to add קרן, that there is another kind of damage where you are חייב for, that was not mentioned yet in the משנה, and that is קרן. And these words that when you cause damage you are חייב to pay במיטב הארץ, that comes to add that there is another kind of damage, and that is קרן. And as רש״י says, we can't say that according to him the משנה comes to tell us that you have to pay מיטב, that you have to pay עידית, because that we already know from the words in the first משנה, and the first משנה it already says that you have to pay מיטב הארץ. So then the question is, what do these words in the second משנה come to tell us? So he says, it comes to add קרן. So the גמרא asks, הא ניחא לשמואל, that's good only according to שמואל, because as we learned before there's a מחלוקת between רב and שמואל what the word שור in the first משנה means. The משנה says there are four אבות נזיקין. One of them is שור. So there was a מחלוקת between רב and שמואל. שמואל says that שור means רגל, מבעה in the משנה means שן, so קרן was not mentioned yet. So these words in the second משנה, כשהזיק חב המזיק לשלם תשלומי נזק במיטב הארץ, that comes to add קרן that was not mentioned yet. But רב holds that שור means כל מילי דשור. שור means all אבות of שור including קרן, שן, ורגל. מבעה according to רב means אדם as we learned before. So according to רב we do not need this extra word in the משנה to include קרן because we already know קרן from the word שור. So the גמרא asks: אלא לרב, according to רב, דאמר that he says תנא שור וכל מילי דשור, that when the משנה says שור it means all the things of שור, all the אבות of שור, קרן also, so חב המזיק לאתויי מאי? So what do these words כשהזיק חב המזיק come to add? And the גמרא says, לאתויי, it comes to add הא דתנו רבנן, the thing that we learn in the ברייתא. It says in the ברייתא: כשהזיק חב המזיק, the words that we add, that if he caused damage he is responsible to pay, that comes לאתויי, to add, to include שומר חנם והשואל נושא שכר והשוכר, the four שומרים. One is the one that watches for free, doesn't get paid. The other one is the one that borrows. And the other one is the one that watches for pay. And the other one is the one that rents. So, in all these cases, if a person had someone else's ox in his possession, whether because he was a watchman בחנם, or he was a watchman for money, or he borrowed it, or he rented it, so if שהזיקו בהמה ברשותן, if the בהמה that they borrowed or they were watching or they rented caused damage while it was in their possession, so the דין is that if it was a תם, משלם חצי נזק, so then the watchman has to pay חצי נזק, או מועד, if it was a מועד, then משלם נזק שלם, he has to pay complete נזק. If it נפרצה בלילה, if it broke through at night, it broke through the door at night, או שפרצוה לסטים, or robbers broke the door open, and it ויצתה and it went out והזיקה, and it caused damage, so this all was done באונס. It was done by force, because he watched it properly. But something happened and it broke through the door, or the robbers broke the door open, so in a case like that, פטור, he is פטור. The שומר does not have to pay for the damage that was caused by this animal. So this is what these words in the משנה come to add: that even if it's not his animal, but since he took responsibility for it, he is responsible to pay if any damage was caused. And the גמרא later on will go through all the details of this ברייתא to explain why you are חייב in certain cases, and why you are פטור in certain cases, etc. It is worthwhile to mention that before when the גמרא brought one of the פשטים in what the משנה meant with the words נכסים המיוחדים, to tell us that you have to have the same owner throughout the whole process, that if in between the owner was משכיר it or the owner was מקדיש it, then the דין is that the owner is פטור, so the רא״ש asked that לכאורה this is only the opinion of רבי יהודה, as the גמרא brought the ברייתא where it says יתר על כן אמר רבי יהודה. But the רבנן argue on רבי יהודה and they hold that you are nevertheless חייב. So the רא״ש

asks, why would the גמרא, רבינא, want to establish the words in the משנה where it says נכסים המיוחדים that it means this, when this is only the opinion of a יחיד, of one individual, of רבי יהודה, but the רבנן argue on רבי יהודה? And the רא״ש answers that even though the רבנן argue on רבי יהודה in the case of מיתה, they admit to רבי יהודה in the case of נזקין, that in the case where the ox killed a person, that's where the חכמים argue and they say that even if If he in between was מפקיר it or מקדיש it, still the דין is that he is פטור. But if it was a case of נזק, that the ox caused damage, then the חכמים are מודה to רבי יהודה and they say that if in between he was מקדיש it or מפקיר it, the original owner is פטור.