Jewish Audio on Chabad.org. Today's שיעור will be in מסכת בבא קמא דף צ. We will start on דף פט עמוד ב, 13 lines from the bottom of the עמוד. And the גמרא here is still in the middle of the סוגיא concerning the תקנה of אושא, because we learned before that in אושא, in the city of אושא, the חכמים made a תקנה that if a woman sells from her נכסי מלוג and then she dies, her husband is able to go to the לקוחות, to the one that bought her נכסי מלוג, and take it back, because really she had no right to sell. The גמרא says here, לימא תקנת אושא תנאי היא, let us say that whether we accept the תקנה of אושא or not is an argument amongst תנאים, because דתני חדא, we learned in one ברייתא, עבדי מלוג יוצאין בשן ועין לאשה אבל לא לאיש, that if a woman owns עבדים, she owns slaves, and these slaves are נכסי מלוג, meaning that while she is married to her husband, the slaves are in the possession of her husband, and any profits that come from the slaves go to the husband. We also have a דין that one of the ways a גוייש slave becomes free, he becomes a בן חורין, is if his master knocks out his eye or his tooth or any of the כ״ד ראשי אברים, or any of the 24 tips of the limbs which will not return, which will not grow back. Now the

question here is, since these עבדים belong, so to speak, to both, they themselves belong to the אשה, to the woman, because they are hers. On the other hand, who has use from them? Who eats their fruit? The husband. So which one of the two is the one that if he will knock out a tooth or an eye or any of the 24 ראשי אברים, will set the עבד free? So one ברייתא says that the עבדי מלוג go out through שן ועין לאשה, if the woman is the one that does it, אבל לא לאיש, but not through the man. If the husband knocks out a tooth or an eye from the עבד, then he doesn't go out free, because he is not really his master, but the woman is considered his master. ותניא אידך, in another ברייתא we learned, לא לאיש ולא לאשה, that not for the man and not for the woman, that either one, if they knock out a tooth or an eye from the עבד, the עבד does not go out free, because neither one is considered the master. She is not considered the 100% master, because even though she owns the עבד, but still at this point the use of the עבד is by the husband. The husband is not considered the master, because even though he uses the עבד, but still the עבד is not his, it is the woman's. Now the question is, what is the

מחלוקת here? סברוה, so in the beginning it was thought, דכולי עלמא קנין פירות לאו כקנין הגוף דמי, that everyone holds, both ברייתות agree, that if a person owns only the right of eating the fruit, meaning of taking the profit from something, is not as if he owns the גוף, the object itself. Therefore, in this case, everyone should have agreed that only the woman is considered the master, not the husband. The woman owns the עבד, so she's his master, but the husband, who only owns the פירות, only owns the right to the פירות, since it is not כקנין הגוף, like he owns the object itself, so he should not be considered the master. And therefore, really both should agree that the woman, if she knocks out a tooth or an eye of the עבד, he goes free, but if the husband does it, he shouldn't go free. But what is the reason of the ברייתא that holds that either of them, not the husband and not the wife, would set the עבד free if they knock out his tooth or his eye? Because מאי לאו, don't you think, בהא קמיפלגי, that this is the reason of their מחלוקת: דמאן דאמר לאשה, the one that says that the woman is considered the master and if she knocks out his eye or his tooth he goes out free, לית ליה תקנת אושא. That ברייתא doesn't hold of the תקנה of אושא, which means there was no special דין that the חכמים made concerning נכסי מלוג. So it remains like the regular דין, that קנין פירות is not like קנין הגוף. So therefore, the husband is not considered the master of the עבד, but the wife is considered the master of the עבד. And therefore, if she knocks out his eye or his tooth, he goes out free, while the husband not. ומאן דאמר לא לאיש ולא לאשה, but the other ברייתא that holds that not the wife or the husband are considered a master in order to set him free, אית ליה תקנת אושא. That ברייתא does hold of the תקנה of אושא. And therefore, since the חכמים gave the husband extra power, that he has a stronger ownership over her נכסי מלוג, therefore it doesn't allow her to be considered a master that she should be able to set him free. The husband himself is also not considered a master, because even though he cause of the תקנה of אושא, he has a stronger ownership over the עבד than if he would have without the תקנה, and therefore, if she sells the נכסי מלוג, the husband could take it back, but nevertheless, it's still after all not his. The חכמים just made a דין that if she sells it he could take it back, but it doesn't mean that he actually becomes the complete owner. So therefore, if he knocks out a tooth or an eye of the עבד, the עבד doesn't go free. But if the woman does it, he also doesn't go free, because since the חכמים made the ownership of the husband stronger, so that takes away part of the ownership of the wife, and therefore she is also not considered a 100% master, and therefore even if she does it, the עבד also doesn't go out free. So it comes out here that the מחלוקת between these two ברייתות is a מחלוקת whether we accept the תקנה of אושא or not. But the גמרא says לא, no. באמת we could say דכולי עלמא אית להו תקנת אושא. Everyone does agree that there is a תקנה of אושא and we accept the תקנה. אלא, the difference between these two ברייתות is כאן קודם תקנה. This one ברייתא where it says that the woman is considered a master, that if she knocks out the tooth or the eye he goes free, that ברייתא was written before the תקנה yet, and therefore she was considered a master. כאן, the other ברייתא where it says that she also is not considered a master, that is לאחר תקנה, that is after the תקנה. So then, since the חכמים gave the husband a stronger power of ownership, so that automatically took away some of her ownership, and therefore she is not considered a master either. ואיבעית אימא, if you want, there could be a different answer given. אידי ואידי לאחר תקנה, both ברייתות speak of after the תקנה, and both ברייתות אית להו תקנת אושא, do accept the תקנה. But what is the מחלוקת? אלא, the מאן דאמר לאשה ולא לאיש, the one ברייתא that says that the woman is considered a master, but the husband is not, מה טעמא, what is the reason? כי דרבא, because of what רבא said, דאמר רבא, because רבא said, הקדש, חמץ, ושחרור מפקיעין מידי שיעבוד, that there are three things that could take away from the שיעבוד. If something is משועבד, is mortgaged to a debt, and normally the person who is owed the money would collect from that object that is mortgaged, but nevertheless, if three things, one of the three things happened to that, that takes away the mortgage and the שיעבוד is not there anymore. One of them is הקדש. For instance, if a person made an ox an אפותיקי, he said to the persons he owes money that here this ox will be the object from which you will collect, and if the time comes for me to pay you, and I won't have any money to pay, so you would take this ox, and then he went along, and he was מקדיש this ox for a קרבן, he said that let this ox become a קרבן, and when it becomes a קרבן, it is קדושת הגוף, then the object itself, the ox itself, the animal itself, is now holy. There is another type of הקדש which is called קדושת דמים. If you say that I am giving away this object to הקדש which is for בדק הבית, that is to be given to the fund that would be used to maintain the בית המקדש. So if a person gives something away to this type of הקדש, that it's not הקדש of קדושת הגוף, then the object itself is not holy, it's only that the value of the object is supposed to be given to הקדש. So what would happen in a case like that? That if a person gives something away to בדק הבית, then הקדש sells the object, somebody buys it, means redeems it, the money that he gives will become הקדש, and the object will go out לחולין. So if a person is מקדיש an object that was משועבד to somebody else, and he is מקדיש it for בדק הבית, קדושת דמים, then it still remains משועבד. The שיעבוד doesn't go off, which means that after it is redeemed from הקדש, it has to be given to the one that it's mortgaged to. But if he is מקדיש it קדושת הגוף, if it happened to be an animal that could be used for a קרבן, and he says that this animal that I had mortgaged to somebody else, I am making it into a קרבן, then automatically it takes away the שיעבוד, and now the one it's mortgaged to has no right over it. Or חמץ, if a person had חמץ that was mortgaged to a גוי, the person owed money to a גוי, and he said that let this חמץ be the object that you will collect from if I will not have money to pay you, and the חמץ remained in the house of the ייד during פסח, so then that חמץ takes away the שיעבוד. And therefore, as soon as the time comes when you're not allowed to have חמץ, the ייד is obligated to get rid of that חמץ. If it would be taken away from the ייד's house, and it would be in the house of the גוי, then the גוי would be able to collect from that חמץ. But since it was in the house of the ייד, and it came a time when חמץ is אסור בהנאה, so then the שיעבוד falls off, and the ייד is obligated to be מבער. get rid of this חמץ. Also ושחרור, if he said that this עבד should be an אפותיקי, this עבד should be the object that you should collect your debt from, and then he freed the עבד, so that takes away from the שיעבוד. And the one that was owed the money cannot take that עבד as payment for his loan. This is the statement of רבא. Now,

based on this statement, we'll understand that even though there is a תקנת אושא, and therefore the שיעבוד that the husband has on her נכסי מלוג is a very strong שיעבוד. Nevertheless, we understand why the ברייתא holds that if the woman knocked out his eye or his tooth, he does go out free, because שחרור, freeing an עבד, takes away from שיעבוד. So since she did an act which causes the עבד to become משוחרר, to become free, so that is מפקיע from the שיעבוד. So that takes away from the שיעבוד of her husband, and she is considered the master, and therefore, the עבד goes out free. But then the גמרא says: לימא, let us say, דדרבא תנאי היא, that רבא's statement really is a מחלוקת of תנאים, because we just said now that this one ברייתא that says that the woman is considered the master goes according to רבא, so obviously, the other ברייתא that says that both of them cannot be considered the master, and even if the woman will knock out the eye or the tooth of the עבד, he still will not go out free, obviously that ברייתא doesn't hold of רבא. And therefore, even though she did an act that is משחרר the עבד, still she cannot do it because of the שיעבוד of the husband. So obviously, that ברייתא holds that שחרור does not take away from the שיעבוד. So obviously, רבא's statement is not so simple. There is a מחלוקת between תנאים whether we accept רבא's statement or not. So the גמרא says: לא, no, באמת we could say דכולי עלמא אית להו דרבא, that both ברייתות do accept רבא's דין. והכא, but here what is the מחלוקת? אלמוה רבנן לשעבודיה דבעל. One ברייתא holds that the חכמים strengthened the שיעבוד of the husband. That this ברייתא that says that the wife also cannot be considered the master to free the עבד, that is because the חכמים strengthened the שיעבוד of the husband in this case. They wanted to give him more כח. And therefore, they said that even though under normal circumstances, because of רבא's דין that שחרור is מפקיע from שיעבוד, so therefore if she did an act of שחרור, this should take away the שיעבוד of the husband, but here the חכמים wanted to give the husband a stronger כח, a stronger שיעבוד, and therefore, even if she is משחרר the עבד, she does something that should cause the עבד to become free, nevertheless, it doesn't take away from his שיעבוד, because his שיעבוד is stronger. And that is the reasoning of the other ברייתא. Not because the other ברייתא doesn't hold of רבא's דין, that שחרור takes away from שיעבוד, but it is only because in this case, it's a special kind of שיעבוד that the חכמים gave a special כח. And therefore, the שחרור of the אשה does not take away from his שיעבוד, and since his שיעבוד is there, automatically her שחרור could not take effect, because since it is משועבד to him, so she cannot free him because it is משועבד to the husband. And then the גמרא says: אי בעית אימא, if you want, I can give you a different explanation in the מחלוקת between these two ברייתות. דכולי עלמא לית להו להאי תנא דתקנת אושא, that according to everybody, in other words both of these ברייתות don't hold of תקנת אושא. Now according to that, according to both ברייתות the דין should be that the wife should be considered the master, and the husband not. So what is the מחלוקת? הכא בקניין פירות כקניין הגוף דמי קמיפלגי. The

מחלוקת is whether we consider קניין פירות כקניין הגוף. The husband only has a קניין פירות. He only has the right over the fruit, over the profit. The שאלה is, is that considered as if he has קניין הגוף? If we consider it as if he has a קניין הגוף, so therefore the wife is not considered a 100% master, because the husband also owns it. And therefore, neither of them would have the דין that if they knock out the eye or the tooth of the עבד would make him free. But the other ברייתא holds that קניין פירות is not כקניין הגוף. So the husband doesn't own it at all. All he owns is פירות, but that is not as if he would own the thing itself. So the only one that owns the עבד is the אשה. Therefore, the husband, טאקע, if he knocks out the eye or the tooth would not set him free, but if the wife knocks out the eye or the tooth, would set him free. And it says: ובפלוגתא דהני תנאי. This מחלוקת would be the same מחלוקת as other תנאים, because we find another place where we have a מחלוקת תנאים whether קניין פירות is כקניין הגוף. דתניא, because we learn in a ברייתא: המוכר עבדו לאחר, if someone sells his slave to somebody else, ופסק עמו על מנת שישמשנו שלושים יום, but he made up with him a condition that still he should serve him for 30 days, that for the next thirty days he should still work for the first master. In other words, he sold it to him right away, so right away the עבד itself belongs to the second person, but for the first thirty days he still works for the first master. רבי מאיר אומר, רבי מאיר says, ראשון ישנו בדין יום או יומיים מפני שהוא תחתיו, that the first master still has a דין of יום או יומיים. The דין of יום או יומיים means that normally, if a person kills a גוייש slave, he is חייב מיתה for that. Concerning מיתה he has a דין like a ייד. So therefore if anybody kills a slave of another ייד, the murderer is חייב מיתה. Concerning the master himself, the דין is like this: If he killed a slave and he dies right away, then the master is also חייב מיתה. But if he hits him and he only dies after a day or two, so then if he is his master, he is פטור from מיתה. Now here the שאלה is, which of the two is considered the master? רבי מאיר says that the first one is considered his master, and therefore, if the first one hit him and he lived for a day or two and then he dies, so then he would be פטור from מיתה. Now why is he considered a master? After all, he already sold him to somebody else. מפני שהוא תחתיו, because he is under him. In other words, since he works for him, so he is considered his master. So we

see clearly, קסבר, that רבי מאיר holds that קנין פירות כקנין הגוף דמי. That if you have a קנין פירות, you have the ownership only concerning the profit, nevertheless it's as if you own the thing itself. And therefore here, even though the first master only has a קנין פירות in the עבד, he doesn't own the עבד, he only owns the right that the עבד should work for him, nevertheless he is considered his master, and the דין of יום או יומיים applies to the first master. רבי יהודה אומר, רבי יהודה says, שני ישנו בדין יום או יומיים, the second master, he has the דין of יום או יומיים, מפני שהוא כספו, because it is his money. Since he belongs to him, therefore he is considered his master. And the second master, if he would hit him and he would live for a day or two and then would die, he would be פטור from מיתה. So it comes out קסבר that he holds, קנין פירות לאו כקנין הגוף דמי, that קנין פירות is not כקנין הגוף. And therefore, the first master, even though he has a קנין פירות in him, still he is not considered his master, because קנין פירות is not as if you have a קנין הגוף. רבי יוסי אומר, רבי יוסי says, שניהם ישנן בדין יום או יומיים, that they both have a דין of יום או יומיים. Why? זה מפני שהוא תחתיו, the first one because he is under him. וזה, and the second one, מפני שהוא כספו, because it is his money. What is his סברא? מספקא ליה. He has a ספק. He has a doubt whether קנין פירות אי כקנין הגוף דמי או לאו כקנין הגוף דמי, whether קנין פירות is considered כקנין הגוף or not. So therefore, concerning each of the two, there's a ספק whether he would be חייב מיתה or not. If the first one hits him and he lives for a day or two, there's a ספק whether he is חייב מיתה or not, because if we hold קנין פירות is כקנין הגוף, he should be פטור from מיתה. So maybe he is פטור. On the other hand, if we hold that קנין פירות is not כקנין הגוף, so then in the case of the second one, if he hit him and he lived for a day or two, he would be פטור. But on the other hand, it is not sure, maybe he's חייב. So since concerning each one there's a ספק whether he would be חייב מיתה or not, therefore he says that they're both פטור, because ספק נפשות להקל. Whenever there's a ספק whether a person has to get killed or not, we always are מקיל, we always are lenient, and we do not kill him. And therefore here too, since the first and the second, there's a ספק on each one of them whether he should be חייב מיתה or not, therefore he says they both are פטור from מיתה. רבי אלעזר אומר, רבי אלעזר says, שניהם אינם בדין יום או יומיים, that both aren't in the category of this דין יום או יומיים, and therefore if either one of them would hit him and he would die after a day or two, both of them would be חייב מיתה. זה לפי שאינו תחתיו, the second one would be חייב מיתה and it's not considered that is his עבד, because he's not under him. וזה לפי שאינו כספו, the first one is חייב מיתה, because it is not his money and therefore he is not considered his עבד, and therefore there's no special דין of יום או יומיים. So we see here that it's a מחלוקת of תנאים whether קנין פירות is כקנין הגוף. So the same מחלוקת that we have between these תנאים is also the מחלוקת between the previous two ברייתות. That one ברייתא holds קנין פירות כקנין הגוף דמי, and therefore the husband is also considered a master, and therefore the דין is that both of them, if they knock out the eye or a tooth of the עבד, would not set him free. The other ברייתא holds that קנין פירות is not כקנין הגוף, so therefore the husband is definitely not considered a master, so the wife is the one that's considered a master, and therefore if she knocks out the eye or a tooth of the עבד, then the עבד goes free. And the גמרא says, אמר רבא, רבא said, מאי טעמא דרבי אלעזר, what is the reason of רבי אלעזר? He said that both both of them don't have a דין of יום או יומים. He says אמר קרא, because the פסוק says, כי כספו הוא, the reason why if he live for a day or two his master is פטור from מיתה, the תורה says, because he is his money. So he דרש'נס, כספו המיוחד לו, his money meaning it's specifically for him. But if there is another person who also has some kind of ownership over the עבד, then automatically it is not מיוחד to him, so this special דין of יום או יומים would not apply to him, and therefore they both would be חייב. Then the גמרא says, כמאן אזלא הא דאמר אמימר, according to which תנא would go, this that אמימר says, that איש ואשה שמכרו בנכסי מלוג, if a man and a woman, both of them sold the נכסי מלוג, לא עשו ולא כלום, didn't do anything. The

sale is not valid. Not only if the woman herself sold נכסי מלוג, or if the man himself sold from the נכסי מלוג, the sale is not valid, there it would make sense. The woman herself can't sell because of the husband, because he eats the פירות. The husband can't sell because of the woman, because really it belongs to her. But what happens if they both sell? לכאורה, why shouldn't the sale take place, since both parties together agreed to sell it to this person? But nevertheless אמימר said, that the sale does not take place. Why? Since it is not מיוחד to one of them, so therefore they both don't have a right to sell. And even if they sell it together the sale is not valid. And if one of them would die first, so the other one would be able to go to the לוקח, to the buyer, and take it back. But the גמרא's question is, כמאן, according to who does this דין go? The גמרא says, כרבי אלעזר, it goes according to רבי אלעזר. Just like רבי אלעזר said, that both masters are not considered his master because either of them is מיוחד, so too here, since not the husband and not the wife are both מיוחד as owners of the נכסי מלוג, therefore the none of them have a right to sell, and even if they sell it together it is still not valid. But the question we could ask here is, why is this different than two partners? And the

דין is that two partners if they together want to sell something, the sale is valid, even though if one of them wants to sell it is not valid because he has another partner with him, but together they're able to sell. So why don't they say the same thing here too, that even though the husband himself cannot sell, the wife herself cannot sell, but still together they should be able to sell? So רא״ש and תוספות explain that the reason is, because by שותפים, by two partners, each one owns half of the whole thing. Together we have the whole thing, so it's considered מיוחד. It's like each one could take out half of the whole, so when you have them both together it is מיוחד for both together. But here we're talking in a case where one owns the פירות, the whole thing, but only for the פירות. The other one owns the whole thing, but only for the גוף. So it comes out that the whole thing together is not מיוחד to either. So even if they come together it is still not considered מיוחד, because each one owns part of the whole thing in such a way that when it's combined with the other, it's not a פשט when they come together they become one. Each one owns another aspect of the whole thing. And therefore in a case like this he says, that it is not considered מיוחד for one, and even if they're together they cannot sell it. Then the

גמרא continues, מאן תנא דתנו רבנן, who's the תנא that learned this, that the רבנן learned in the ברייתא, מי שחציו עבד וחציו בן חורין, if one is half עבד and half free, for instance, he belonged to two partners and one partner freed him, so now he is half free and half עבד. וכן עבד של שני שותפין, or if he's an עבד that belongs to two partners, אין יוצאין בראשי אברים שאינן חוזרין, they would not go out with the tips of the אברים that did not return. Meaning, normally if an עבד's eye or tooth is knocked out, or any other one of the twenty-four tips of the אברים that do not throw, grow back, if it is knocked off by his master automatically he is free. But in a case like this where he is half עבד and half free or he belongs to two partners, he will not go out בראשי אברים. And the reason for that is because each master is not considered a master המיוחד לו. In the case where he is half עבד and half free, so his master is not considered מיוחד because half of him doesn't belong to the master. So too in the case of two partners, since there is another partner, so he's not considered מיוחד to each of them, to either of them. And therefore, he would not go out free if this would happen to him. So who is the תנא that said this? אמר ליה רב מרדכי לרב אשי, so רב מרדכי said to רב אשי, הכא אמרי משמיה דרבא, this is what they said in the name of רבא, that it's רבי אלעזר, it is רבי אלעזר. That מי לא אמר רבי אלעזר, didn't רבי אלעזר say כספו המיוחד לו, that since by the דין of יום או יומים it says כספו, his money, so it has to be מיוחד to him, said specifically, the ownership to one person, הכא נמי, so here too concerning the דין of ראשי איברים, עבדו המיוחד לו. It has to be an עבד which is specifically for him. If there is another owner together with him, then it is not considered מיוחד to him, and therefore the דין that if he knocks off one of his ראשי איברים, he goes out free, would not apply in this case. But the question is that didn't we say before that in the case of regular two partners it is considered מיוחד? And the only time we said before it's not considered מיוחד is in the case of a husband and a wife, being that one owns the גוף and one owns the פירות. But if it's regular partnership, it is considered מיוחד if they are together? So תוספות says that probably the גמרא means here also that there are two partners, one owns the גוף and one owns the פירות. And so too concerning the other case of the חצי עבד וחצי בן חורין, where we said that his master is not considered מיוחד לו, it is also a case not that he owns half of himself and his master owns the other half, but it's a case of גוף ופירות. It's a case where his master freed him, but didn't give him yet the שטר שחרור. So here too the two parts are גוף ופירות. The פירות belong to him, in other words he has to work for himself, he doesn't have to work for his master, and nevertheless the גוף is still considered belonging to his master because he still cannot marry a Jewish woman, he's still considered essentially an עבד, because he doesn't have the שטר שחרור yet. And that is the case where we say that he is not considered מיוחד לו, and therefore if he knocks out one of his ראשי איברים, he doesn't go out free. And now we

will continue to learn the משנה. התוקע לחבירו, and רש״י says there are two פשטים what this means. One פשט is he hit somebody in his ear, and another פשט is that he blew into someone's ear. נותן לו סלע, then as payment for בושת, for embarrassment, you have to give him a סלע. רבי יהודה אומר, רבי יהודה says, משום רבי יוסי הגלילי, in the name of רבי יוסי הגלילי, מנה, you give him a מנה. And the גמרא will explain which kind of מנה this is. סטרו, if you gave him a slap, נותן לו מאתים זוז, you have to pay him 200 זוז. לאחר ידו, if he did it with the back of his hand, so it's even worse, נותן לו ארבע מאות זוז, you have to give him for embarrassment 400 זוז. צרם באזנו, and here too רש״י says two פשטים. One פשט is he pulled his ear, and another פשט is he wounded his ear. Or תלש בשערו, he pulled his hair, רקק, he spit, והגיע בו רוקו, and the spit reached him, העביר טליתו הימנו, he took off his garment from him, or פרע ראש אשה בשוק, he uncovered the head of a woman in the street, for all these, נותן לו ארבע מאות זוז, you pay 400 זוז. And then the

משנה says, זה הכלל, this is the rule, הכל לפי כבודו, everything depends on the כבוד of the person. In other words, even though we gave a general amount of how much you would have to pay, but nevertheless it depends on the כבוד of the person. And the גמרא will explain whether this is a קולא or a חומרא, whether this comes to say that sometimes you pay more, or sometimes you would pay less. אמר רבי עקיבא, רבי עקיבא says, אפילו עניים שבישראל, even if they are poor people, if this happened to a poor person, רואין אותם, we see them, כאילו הם בני חורין שירדו מנכסיהם, as if they were rich, rich freemen that went down from their possession, meaning they lost their money, שהם בני אברהם יצחק ויעקב, because they are nevertheless children of אברהם, יצחק, ויעקב. So even though they are poor, but we look at them as if they once were rich. And therefore, we pay them according to the embarrassment that would be done to a rich man that became poor, because after all, all the יידן are children of אברהם, יצחק, ויעקב. Then the גמרא says, ומעשה באחד שפרע ראש אשה בשוק, there's a story of one person who uncovered the head of a woman in the street, באת לפני רבי עקיבא, she came to רבי עקיבא, וחייבו ליתן לה ארבע מאות זוז, and רבי עקיבא obligated him to give her 400 זוז, as the דין is, as we said before, that if you uncover the head of a woman in the street, you have to pay 400 זוז.

אמר לו, so he said to him, רבי, תן לי זמן, give me time, I can't pay right now, give me time till I will pay. ונתן לו זמן, and he gave him a time. In the meantime, שמרה, he watched her, meaning he waited for an opportunity, and he found her, עומדת על פתח חצירה, she was standing by the door of her yard, ושבר את הכד בפניה, what he did was he broke a jug in front of her, ובו כאיסר שמן, and inside there was a little bit of oil, very little, the amount of an איסר. So she didn't want to lose that, she saw she has an opportunity here to get a little bit of oil, גילתה את ראשה, she uncovered her head, ובאותה מטפחת, and she grabbed, caught the oil in her handkerchief that she was wearing over her head, ומנחה את ידה על ראשה, and then she took her hand over על ראשה, and she put her hand on her head, that the hand that got full of oil, she smeared it over her head. העמיד לה עדים, and stood עדים there, he put עדים there to testify that this is what happened, ובא לפני רבי עקיבא, and he came to רבי עקיבא, אמר לו, and he said to him, רבי, לזו אני נותן ד' מאות זוז? To her you want me to give ד' four hundred זוז? You see yourself that she on her own uncovered her hair just to get something that was worth one איסר. In other words, it was worth for her to embarrass herself by uncovering her hair just to get one איסר. So you want me to pay her four hundred זוז for what I did, for uncovering her hair? אמר לו, he said to him, לא אמרת כלום, you didn't say anything. Your words are not accepted. And the reason is because החובל בעצמו, if someone injures himself, אף על פי שאינו רשאי, even though you're not allowed to do it, but still פטור, you're פטור. The בית דין can't force you to pay. אחרים שחבלו בו, nevertheless if others injure him, חייבים, they are חייב to pay. So here too, even though she embarrassed herself, she could do it and no one is חייב. But if you did it to her, you are חייב to pay. The same is הקוצץ נטיעותיו, if someone cuts off his own plants, אף על פי שאינו רשאי, even though you're not allowed, the דין is that you're not allowed to cut off plants that give fruit, as the תורה says בל תשחית, nevertheless פטור, you are פטור. But אחרים חייבים, if others did it, then they are חייב to pay you. How much are they חייב? So רש"י says the גמרא says in מכות that for a נטיעה, for a plant which is a year old, you have to pay two כסף. Then the גמרא says, איבעיא להו, there was an איבעיא asked, מנה צורי תנן, אי מנה מדינה תנן? When it says in the משנה that רבי יהודה says in the name of רבי יוסי הגלילי that for hitting somebody in the ear, you have to pay a מנה, is it a מנה צורי or a מנה מדינה? מנה צורי was twenty-five סלעים, which is a hundred זוז. A מנה מדינה is an eighth of a מנה צורי. So the question here is, what kind of מנה did he mean that you have to pay? The

גמרא says, תא שמע, come hear, because ההוא גברא, there was this man דתקע ליה לחבריה, that he hurt somebody by his ear, or he blew into his ear. אתא לקמיה דרבי יהודה נשיאה, he came to רבי יהודה נשיאה. אמר ליה, so רבי יהודה נשיאה said, הא אנא, you have me, והא רבי יוסי הגלילי, and you have רבי יוסי הגלילי. So therefore, הב ליה מנה צורי, give him a מנה צורי. שמע מינה, from here we see that מנה צורי תנן, שמע מינה, that it means a מנה צורי. Since he said that here we have רבי יוסי הגלילי, and therefore, because we פסקן like רבי יוסי הגלילי, I want you to pay a מנה, and he said give him a מנה צורי, so obviously when רבי יוסי הגלילי said a מנה, he meant a מנה צורי. Then the גמרא asks, מאי הא אנא והא רבי יוסי הגלילי? What did he mean, you have me and you have רבי יוסי הגלילי? What did he mean, you have me? What was his own involvement here? אילימא, if you're gonna say הכא קאמר ליה, this is what he meant, הא אנא, you have me דחזיתך, that I saw you, והא רבי יוסי הגלילי, and you have רבי יוסי הגלילי דאמר, who says that מנה צורי, you have to pay a מנה צורי, and therefore, זיל הב ליה מנה צורי, go ahead and give him a מנה צורי. So when he said you have me meaning, here I am, I am a witness, I saw it happen. And now that I know it happened, and רבי יוסי הגלילי says you have to pay a מנה צורי, that's why you're giving the מנה צורי. So if that is the פשט, למימרא, let us say דעד נעשה דיין, that a witness could become the judge. Because this is actually what happened. If he is the witness, and he also judged the case and פסקנד that he has to pay the מנה צורי, so we see that he held that a witness could also become the judge. But והתניא, didn't we learn, סנהדרין שראו אחד שהרג את הנפש, if the סנהדרין saw a person that killed somebody, מקצתן נעשו עדים ומקצתן נעשו דיינים, so some of the סנהדרין, they could become the witnesses, and some of them become דיינים. And the ones that become the witnesses testify in front of the others that are the דיינים, and based on their testimony, the בית דין will פסקן the דין. דברי רבי טרפון, that's the opinion of רבי טרפון. רבי עקיבא אומר, רבי עקיבא says, כולן עדים הן, they all are עדים. Since they all saw it happen, so automatically they're all witnesses, ואין עד נעשה דיין, and a witness cannot become a דיין. So even though we want to divide them in half, and the ones that are going to be the דיינים will not be the same ones that will testify, but nevertheless, since בפועל they happen to see it too, so they are automatically also witnesses, whether they like it or not, and therefore they cannot become דיינים. So עד כאן לא קאמר רבי טרפון, that even רבי טרפון who says that some of them could become דיינים, even though they are witnesses, it's only אלא דמקצתן נעשו עדים ומקצתן נעשו דיינים, only some become עדים, and some become דיינים. In other words, that those that become דיינים, even though they happen to see it, they still could become דיינים. But אבל עד נעשה דיין לא קאמר, but the same person who happened to be the witness, who is the one that's going to testify, he should become the דיין? That even רבי טרפון didn't say that you're allowed to do that. רבי טרפון just said that even though those that will become דיינים happened to see it, it doesn't matter, as long as they will be not the ones that will testify. Other ones will come to testify in front of them, and they will become דיינים. But to say that the same person actually who will testify, he should be the judge, even רבי טרפון holds you can't do that. So how could he have done it here to say that, "I am the witness, and I am also the דיין, I פסקן that you have to give him מנה צורי"? The גמרא says, כי תניא ההיא, when was that ברייתא learned? כגון שראוהו בלילה. Why did רבי טרפון say that you have to have some become דיינים and some become עדים, and you can't have the same ones that will be the עדים to become the דיינים? Is because they saw it happen at night, דלאו בני מעבד דינא נינהו, that you can't make a דין at night. So at the moment they saw it happen, they couldn't פסקן the דין. So they had to make the דין the next day. The next day, they will already be פסקנינג based on שמועה, based on testimony. So here רבי טרפון says that you have to have some people become עדים and some people become דיינים, and they will testify in front of those דיינים. But if it would be done during the day, in other words, if they would have seen it during the day, so then the same ones that saw it could right away פסקן the דין, because here you don't have to have people to come and testify, because they themselves saw it. And this is what רבי יוסי הגלילי meant: since he saw it happen, so he פסקנד based on the ראייה, based on the sight. In other words, he holds like רבי טרפון. And as we said now according to רבי טרפון, if you don't have to come and testify a later time, but you could פסקן right then when you see it, then the same people who are the עדים could be the דיינים. And therefore רבי יוסי הגלילי felt that he who was the עדים could also be the דיין. איבעית אימא, if you want, I could tell you a different פשט, that הכא קאמר ליה. This is what רבי יוסי הגלילי meant when he said, "You have me and you have רבי יוסי הגלילי." He didn't mean, "You have me as a witness." He meant, הא אנא, you have me דסבירא לי כרבי יוסי הגלילי, that I hold like רבי יוסי הגלילי, דאמר, who said מנה צורי, you have to pay him מנה צורי. והא סהדי דמסהדי בה, and here you have witnesses that testify. In other words, he wasn't the one that saw it. He meant, "You have me and רבי יוסי הגלילי who hold the דין that you have to pay him מנה צורי. Now concerning you, we have witnesses that testified that you did it, זיל הבה ליה מנה צורי, therefore, go ahead and pay him the מנה צורי." Then the גמרא asks, וסבר רבי עקיבא, does really רבי עקיבא hold דאין עד נעשה דיין, that a witness, somebody who saw it happen, cannot become a judge? והתניא, didn't we learn in a ברייתא, the פסוק says, והכה איש את רעהו באבן או באגרוף, if a man will hit his friend with a stone or with a fist, is a פסוק in פרשת משפטים, קפיטל כ"א, פסוק י"ח, where it says, וכי יריבון אנשים, if people will argue, והכה איש את רעהו באבן או באגרוף, and a man will hit his friend with a stone or with a fist, ולא ימות, he will not die, ונפל למשכב, he will fall in his bed, which means he will have to lay in bed. So the פסוק continues, if he will get up, so then the one that did it will be free, but he will have to pay for his שבת and for his ריפוי. So here, the

תורה gives two examples: if he hit him with a stone or באגרוף, or with a fist. What does the תורה mean when the תורה gives these two examples? Obviously the תורה wants to tell us a דין. So שמעון התימני אומר, שמעון התימני says, מה אגרוף מיוחד שמסור לעדה ולעדים, just like a fist is specific that it is given over to the עדה, which means the community, really meaning the בית דין, and to the witnesses, that not only the witnesses were able to see the fist, whether it was strong enough to cause the damage in that person, but also the בית דין could see it; when they call that person to בית דין, בית דין is able to see his fist whether that fist is strong enough to have caused that damage. So that teaches us that אף כל שמסור לעדה ולעדים, that also when can בית דין make a person חייב to pay if they actually saw the object, the instrument with which he damaged. פרט, this comes to exclude, שיצא מתחת יד העדים, if it went out from under the hands of the witnesses. If the witnesses happened to see the instrument with which he damaged him, but then they lost it, and they cannot bring it to בית דין for בית דין to inspect it, so then בית דין cannot make him חייב. That is the reason why the תורה compares a stone to a fist, to teach us that also a stone has to be brought to בית דין. That if he threw a stone at him and hurt him, the stone has to be brought to בית דין, and בית דין has to inspect it to see whether that stone is strong enough to have caused this damage. אמר ליה רבי עקיבא, so רבי עקיבא said to him, וכי בפני בית דין הכהו, did he actually hit him in front of בית דין, שיודעים, that they should know, כמה הכהו, how many times he hit him, ועל מה הכהו, on which part of the body he hit him, אם על שוקו, whether it was on his thigh, או ציפור נפשו, on the tip of his נפש, meaning on the tip of his heart. So anyway, בית דין will have to rely on the witnesses that they say that they saw him hit him so many times, or they saw him hit him in this and this place. So too, בית דין could rely on the witnesses if they say that they saw the stone with which he hit him, and it was a stone that could have caused the damage. So why should you have to bring this stone to בית דין for בית דין to inspect it? ועוד, another thing, הרי שדחף את חבירו מראש הגג, if someone throws his friend down of the top of the roof, או מראש הבירה, from the top of the building, ומת, and he died, בית דין הולכין אצל הבירה, do בית דין go to the house, או בירה הולכת אצל בית דין, or the

house goes to the בית דין? Meaning to say, does בית דין have to inspect the place to see whether the height is high enough that he could have died from it? But בית דין relies on the witnesses. If the witnesses say that we saw it happen, so the בית דין relies on them, and based on their testimony, בית דין will kill him. בית דין doesn't happen to travel all the way to the place where it happened. ועוד, also, אם נפלה, let's say the building or the wall that he threw him off fell, collapsed, חוזר ובונה, must he rebuild it so the בית דין should be able to see whether it was high enough for him to die? Obviously, we rely on the witnesses. So too, if the witnesses say we saw the instrument, the stone, and it was able to cause the damage, we rely on them and we make him חייב. But according to that, the question that comes back is, why does the תורה compare a stone to a fist? What does the תורה come to teach us with that? אלא, what does the תורה come to teach us? That מה אגרוף מיוחד שנמסר לעדים, just like a fist is specific that the עדים were able to see it, אף כל שנמסר לעדים, so too, when can בית דין make him חייב? If it was given to the עדים, meaning that the עדים saw the instrument. If he hit him with a stone, the עדים have to have seen the stone that it was a type of stone that could have hurt him. פרט, this comes to exclude לכשיצתה אבן מתחת ידו של מכה, that if the אבן, the stone, came out of the hand of the one that hit him and it was lost before the witnesses were able to see it, so then he is פטור. קתני מיהת, but the meantime, we learned in this ברייתא that

אמר ליה רבי עקיבא, רבי עקיבא said to him, וכי בפני בית דין הכהו שיודעים כמה הכהו, did he hit him in front of בית דין that they should know how many times he hit him? So from his expression, it seems that הא הכהו בפניהם, that had he hit him in front of the בית דין, עד נעשה דיין, the עד would become a דיין. If the בית דין would have seen it, then the בית דין would have פסק'נד that he has to pay. So it comes out that רבי עקיבא holds that if the people themselves that saw the thing happen, they themselves can be the judges. So how could we say before that רבי עקיבא holds that an עד cannot become a דיין? The גמרא answers, לדבריו דרבי שמעון התימני קאמר, when he used that expression, it was only according to the opinion of רבי שמעון התימני. He was speaking to רבי שמעון התימני and was trying to prove to him that this is not the פשט in the פסוק. So to him, he said that had it did it have to be done in front of בית דין that they should see it and then make him חייב? But וליה לא סבירא ליה, he himself doesn't hold that way. He himself holds that if it would have been done in front of בית דין, then בית דין couldn't make him חייב for a different reason, because an עד cannot become a דיין. If the person himself saw it happen, he cannot פסק'ן the דין, he cannot be the דיין. But he was speaking to רבי שמעון התימני, who doesn't necessarily hold that an עד cannot become a דיין. So to him, he used this expression, and how can you say that they have to inspect the stone, because other things, they do rely on the witnesses? Was it done in front of בית דין that בית דין should see how many times he hit him? We have to rely on the witnesses anyway, so therefore, we rely on the witnesses concerning the stone also. But the expression he used was only when he was speaking to רבי שמעון התימני, but not that he himself hold that. Then the גמרא continues:

תנו רבנן, the רבנן learned, שור תם שהמית והזיק, that a שור תם, which is an ox that it's the first or second or third time that it gored, and the דין is, when it comes to קרן, when it comes to damage done by an ox through goring, the first, second, and third time, the ox is considered a תם, and the other time, after that, he is considered a מועד. So if the ox was still a תם and it killed somebody, the דין is that if an ox kills a person, then the ox has to get killed, and that doesn't make a difference whether he is a תם or a מועד. But concerning the damages, there is a difference that if he is a מועד, he pays the complete damage; if he was a תם, then the owner of the ox only pays חצי נזק, half of the damage. But here was a case that the שור תם killed a person first and then he also damaged something. דנין אותו דיני נפשות, so the בית דין will judge this ox דיני נפשות, concerning killing the ox, ואין דנין אותו דיני ממונות, but they do not judge him concerning payment for the damage. And the reason for that is, because concerning a תם there is another דין, that a תם only pays מגופו and not מן העליה. This חצי נזק, this half of the damage, that the owner of the ox has to pay, also comes only out of the body of the ox. But the owner will not have to pay מן העליה, meaning to have to go and get other money to pay for the damage. By a שור מועד, the דין is that the owner is obligated to pay for the damage. Whether the ox himself is worth that money or not, the owner has to go מן העליה to his house and take money from his house. But concerning a שור תם, the דין is that he only pays out of the body of the ox. If the ox is not worth that amount of money, then he doesn't pay him, he only pays him as much as he is worth. If the ox is not worth anything, then he doesn't pay him anything. So here, since he killed, so בית דין will judge him דיני נפשות, and have him put to death. Since he is being put to death, he is not worth anything. Since he is not worth anything, then the owner will not have to pay for the damages, because you only pay out of the body of the ox, and here the ox is not worth anything. So therefore the ברייתא says, that first you judge him דיני נפשות, and after you finish with דיני נפשות, there is no reason to judge דיני ממונות, because the owner will not have to pay anyway, because the ox is not worth anything. But if it was a מועד שהמית והזיק, the שור was a מועד, and he killed somebody and then he caused a damage, דנין אותו דיני ממונות. So first we judge him דיני ממונות, we see how much the damage was, and we make him pay. וחוזרין ודנין אותו דיני נפשות, and then we judge him דיני נפשות. And even though after he is judged דיני נפשות, and the ox is put to death, the ox is not worth anything, the owner still has to pay, because by a מועד, he has to pay not מגופו, not out of the body of the ox, he has to pay his own money. So therefore even if the ox will be put to death, nevertheless, the owner will have to pay for the damage. But if

קדמו ודנוהו דיני נפשות, if for some reason they judged this שור המועד first for the death that he caused, they judged him to be put to death, אין חוזרין ודנין אותו דיני ממונות. So then you do not after you פסקנ'ד that he is put to death, you do not go ahead and פסקן דיני ממונות for the damage it caused. And the גמרא asks, why not? וכי קדמו ודנוהו דיני נפשות מאי הוי, what is wrong if first they פסקנ'ד דיני נפשות, and they פסקנ'ד that this ox has to be put to death because he killed somebody? ליהדרו ולידיינוהו דיני ממונות, afterwards let them פסקן דיני ממונות! Even after they פסקנ'ד that he is put to death, they still could see how much the damage was, and have the owner pay for it, since it doesn't come out מגופו, from the body of the ox. אמר רבא, so רבא said, אשכחתינהו לרבנן דבי רב, I found the רבנן of the בי רב, דיתבי, that they were sitting, וקאמרי, and they were saying like this: מאן, who is the תנא of this ברייתא? רבי שמעון התימני! This is רבי שמעון התימני. דאמר, that he said, מה

אגרוף מיוחד שמסור לעדה ולעדים, that we learn out from the word אגרוף, fist, that just like a fist is something that not only the witnesses, but also the בית דין is able to see, so too any other instrument that he hurt him with, the בית דין has to see it, the בית דין has to inspect it. אלמא, we see that he holds, בעינן אומדנא דבי דינא, that we have to have the estimation, the inspection of the בית דין. So therefore, והכא, in this case, כיון דגמר דיניה לקטלא, since the בית דין פסקנ'ד the דין that he has to be killed, that the ox has to be killed, לא משהינן ליה לאומדנא דבי דינא, so therefore we don't keep him now that the בית דין should inspect, to see concerning the damage that he did. ולא מעיינינן בדיניה, and we don't look into the דין. In other words, since according to רבי שמעון התימני the instruments of the היזק has to be estimated, inspected by the בית דין, because the פסוק that he learned out his דין from the פסוק והכה איש את רעהו באבן או באגרוף, טאקע is not speaking about death, it's speaking about damage that was done, because the פסוק says ולא ימות, if he hit him and the person didn't die. So we see that he holds that whenever you come to judge damage, you have to inspect the instrument that did the damage. So if an ox did the damage, the בית דין would have to inspect the ox before they could פסקן the דין of how much money he has to pay. Now here, since בית דין first פסקנ'ד that the ox has to be put to death, we do not wait, because the דין is that as soon as you פסקן, you have to keep, be מקיים the פסק דין right away. So right away the בית דין will want to kill the ox, so there will be no time for the בית דין to inspect the ox, which is in this case the instrument of the damage, in order to פסקן how much he owes him, and therefore בית דין cannot פסקן. And that is the reason for this ברייתא where it says that if first they פסקנ'ד דיני נפשות on the ox, and they said the ox is חייב מיתה, you cannot judge דיני ממונות, even in the case of a מועד, because according to רבי שמעון התימני, you have to see the ox. Inspect the ox before you could פסקן, and since he already got דיני נפשות, we kill him right away, there is no chance for them to inspect it. That's what they said is the פשט in the ברייתא, why the ברייתא says that by a שור המועד, if they first judged דיני נפשות, you cannot judge it anymore דיני ממונות. That's what רבא said he heard them say. ואמינא להו אנא, I said to them, אפילו תימא רבי עקיבא, באמת we could say the ברייתא goes according to רבי עקיבא, who argues with רבי שמעון התימני, and holds that the בית דין does not have to inspect the instrument of the damage. הכא במאי עסקינן, but here the reason why it says that after you judged דיני נפשות, you cannot judge it דיני ממונות is because it's speaking in a case כגון שברח, for instance if the owner of the ox ran away. And after they judged the ox דיני נפשות, and they said that he's חייב מיתה, before they managed to judge it דיני ממונות, so the owner ran away. So now already we cannot judge it דיני ממונות, because the דין is אין חבין לאדם שלא בפניו. You cannot do something against a person if it's not in front of him. So, therefore, we cannot judge it and make him pay for the damage because he is not here. But then the גמרא asks, אי ברח, if the case is where he ran away and he's not here, כי לא דנוה דיני נפשות, היכי דיינינן ליה דיני ממונות בלא בעלים? So, why do we say that only if first they judged it דיני נפשות, then we cannot judge it דיני ממונות, and we said it is because he ran away? If he ran away, you couldn't judge it even if you didn't judge דיני נפשות yet. Even if you didn't judge the ox that he's חייב מיתה for the death that he caused, you still cannot judge the ox for דיני ממונות because the owner is not here. But the גמרא asks, case is דקבילו סהדי, they accepted the witnesses, וברח, and he ran away. And the reason you don't judge it דיני ממונות is because there is no use. Since he ran away and he took away with him all the money, and he left nothing here, so what is the use in judging דיני ממונות when he is not here, from whom to collect? So, therefore, you do not judge it דיני ממונות. But the גמרא asks, סוף סוף מהיכא משתלם? But סוף כל סוף, what difference does it make whether we first judged דיני נפשות or not? If he is not here, so in both cases we shouldn't judge it דיני ממונות. Even if we didn't judge it דיני נפשות yet, we still shouldn't judge it דיני ממונות if he's not here, because there is nobody from whom to collect. So the גמרא says, מרידיא, we could collect from the ox itself. If we didn't first judge it דיני נפשות, then what we do is first we judge it דיני ממונות. And as we said before, the case is that the עדות came while the owner was still here, so we had a right to accept the עדות. As soon as we accepted the עדות, and we wanted to פסקן how much he owes, he ran away. But still, we still go ahead and פסקן דיני ממונות, and we see how much he owes, and even though he is not here, we use the ox for plowing, and the money that the ox brings in through his work, that goes towards the payment of the damage. But if we first judged it דיני נפשות, so now we cannot use the ox for work because it becomes אסור בהנאה, so now there is no use in judging it דיני ממונות, because we're talking, as we said before, that the owner ran away, so there's nobody to collect from. And as far as collecting from the work of the ox we can't either, because we already judged it דיני נפשות, so he is forbidden to have any benefit from, because the דין is a שור הנסקל, an ox that killed and בית דין פסקנד that that ox has to be put to death, it is אסור בהנאה, you can't have any use from that ox. So, therefore, we can't plow with that ox and the money should go towards the דיני ממונות, so there is no use in פסקנינג דיני ממונות, and therefore we say that we don't פסקן דיני ממונות. But the גמרא asks, אי הכי, if the case here is that we collect from the work the ox does, תם נדייניה דיני ממונות ברישא ונשתלם מרידיא. What did we say concerning a תם? That if it killed and caused damage, we only פסקן דיני נפשות, and we don't פסקן דיני ממונות. And the reason was as we said before, because by a תם you only pay מגופו. You only pay from the body of the ox. And since the ox will be put to death, he doesn't have any value so there's nothing to take from. But the גמרא's קשיא is, why don't we do different? Let's first פסקן דיני ממונות, and let's get the money out from the work of the ox, והדר נדייניה דיני נפשות, and then we will פסקן דיני נפשות. We טאקע can't פסקן first דיני ממונות and take it out of the ox itself, since the ox killed, he is supposed to go to דיני נפשות and supposed to be put to death eventually, so we can't say that we take out of the value of the גוף of the ox to pay for the דיני ממונות for the נזק, because the ox is not worth anything, because later it will be put to death. But now that we said that we could take the money out of the work the ox does, so why don't we do that? First פסקן דיני ממונות, and then work with it, and the money should go towards the payment for the damage, and then we will פסקן פסקן דיני נפשות and put the ox to death.

אמר רב מרי בריה דרב כהנא, said רב מרי the son of רב כהנא said, זאת אומרת, this teaches us that רידיא עליה דמריה הוא, that the money that you could get out of the plowing, of the work of the ox, that is not considered גופו, that is considered עלייה. That is not considered that this comes from the body of the ox, but this is considered that this is a profit, a side profit that the owner gets. And since by a תם the דין is that you only pay מגופו, not מן העלייה, you only pay from the body, so therefore we can't first judge the דיני ממונות and then get paid out of the work of the ox, because the work of the ox is considered מן העלייה and not מגופו. And therefore the only thing we do is we פסקן דיני נפשות and we put the ox to death, and we don't judge דיני ממונות, because the ox, since it is going to die, is not worth anything, so there is no value in the גוף, so there is no דיני ממונות that is going to be paid here.