We're learning Bava Kama, the first perek in Bava Kama speaks about the ארבעה אבות נזיקין, that are four kinds of נזק, of damages, that a person is responsible to pay for, and the Mishnah said in the beginning which are the four: השור, והבור, והמבעה, וההבער. There are four, which really as we we've learned once before, there are really there are six. שור, depends what it means here, but לפי כלל there is three in שור: קרן, שן, ורגל. If a person's ox gores, מנגח with his horn, you're chayav to pay, the Torah says כי יגח שור איש, you're chayav to pay. שן is if the בהמה eats somebody else's food, that's שן. רגל is when it's and he's in the steps and all other things it breaks, and each one is written in the Torah separately. And then בור, says in the Torah if you dig a hole, and someone falls in or something falls in and gets hurt, you're chayav to pay. And המבעה, that's אדם, a person damages himself, somebody you have to pay, so there are... Why call him מבעה? Wait, we can't go through everything, it's a Gemara here. Gemara. So, and the Mishnah tried to explain why the Torah has to write all of them. Why wouldn't the Torah, it'd be enough if the Torah would write one, and we would know the rest? The Torah writes, let's say, just give an example, that if you're chayav for שן, if the animal ate somebody else's stalks things, you're chayav, so we would know it by ourselves, that if it did קרן, if it was מנגח. And the Mishnah explains why we would not know some of them from the others. But the bottom line, the Gemara says here: אמר רבא, וכולהו כי שדית בור בינייהו, אתיא כולהו במה הצד. The truth is, and we're not going to go through the details, there's a big Rashi here, because it's not נוגע to our whole ענין, one part is going to be נוגע. That the bottom line is, the emet, if the Torah would have written just two, בור and one more of the others, we would be able to learn them all out, from these two. לבד מקרן, except קרן. We'd know them all except קרן, again, what is קרן? If the בהמה gored. You like בור and קרן? Huh? If it says בור and קרן, you know everything. That's true, Rashi explains, if it would say בור and קרן, we'd know everything, if it says בור and another one, we'd know everything besides קרן. Why besides קרן? So he says: משום דאיכא למיפרך, because we would be able to ask a question: מה לכולהו שכן מועדין מתחילתן. That means, whenever we learn out one from another, or one from two, if we find, we have to know the style here, if we find that in the place that we want to learn from has a certain chumra, we can't learn out the other doesn't have a chumra. למשל, if it says one, you could always say, you know, why this one is chayav? Because this one is much stricter, this one is a worse type of היזק. And if it's a worse type of היזק, that's why you're chayav, you cannot learn out something else which is not that strict. The same thing when we have two. If there is a certain chumra, a certain worst type of היזק that both have, how could you learn out a third, if the third one is weaker? So maybe you're only chayav by these two because it has the chumra, and the third one doesn't. So the Gemara says that any two that are going to be written, like בור and another one, you will not be able to learn out קרן, because you will always ask a question that they have a chumra over קרן. What is the chumra that they have? משום דאיכא למיפרך, because you could always ask: מה לכולהו, you know why the other ones are chayav, קרן, I mean בור, or שן, whatever, because שכן מועדין מתחילתן. And I'm going to say the simple word translation of the words, and this is going to be the discussion. We know that every time, anyone of these מזיקין that's מזיק, you're chayav, how much do you have to pay? נזק שלם. By everyone you have to pay נזק שלם, whatever the נזק is. The only one that has an exception, that you only pay certain times חצי נזק, half, is keren, tam. If the first time your animal gores and is mazik with his horn, you pay חצי נזק, you only pay half, that's what the Torah says. If you do that a second time, חצי נזק, half, the third time חצי נזק. After the three times, now it changes its status, it turns into a mu'ad, and a mu'ad pays נזק שלם. But the only type of hezek that we're talking about that has this type of thing, that there is a certain point when you pay חצי נזק, there is a concept of a tam, is only by keren. So the Gemara says: how could you learn out keren from the rest, from any other ones, when the other ones you could say, you know, they're more chamur? How do you know they're more chamur? They're always mu'ad. מה שאין כן by keren, keren is the only one that is a tam. That's what the Gemara says: I would learn out, I could learn out the rest, except קרן, משום דאיכא למיפרך, I could always ask: מה לכולהו, you know They're, yeah, right away you pay kofer. And the Gemara continues, ולמאן דאמר אדרבה קרן עדיפא, but according to that opinion that says that keren is worse than others, had more chumra than others, which way? שכוונתו להזיק, because keren has a certain חומרא, כוונתו להזיק, what is it? The Gemara, we learned before, each one of these categories, what makes them into separate categories? Why is it a separate category? There are different ways of hezek, it's all one thing. No, each category has a separate characteristic. The characteristic of keren is כוונתו להזיק, that he does it with the intentions to be mazik. Why does the animal gore? Cuz he wants to hurt you. Shen represents a certain type of hezek, which is יש הנאה להיזקו. Shen means he ate it. Why did he eat it? He's hungry, he has hana'ah. Regel is היזקו מצוי. Regel means it's that it's a type of hezek that's very common, because an animal walks and whatever it sees, it steps on, it doesn't care. So anyway, keren is כוונתו להזיק. So the way, I'm reading the words of the Gemara, just the words, that according to the opinion that קרן is even worse, see, according to the opinion that קרן is less than the others, we can't learn out קרן from the others, cuz they have a chumra, maybe they're chayav because they're worse. קרן is not. But according, ולמאן דאמר אדרבה קרן עדיפא, that קרן is worse because כוונתו להזיק, because קרן has the כוונה to be מזיק, umemila it's worse than the rest, אפילו קרן נמי אתיא, we can learn קרן also! The whole reason we said we can't learn קרן, because קרן is less, but according to the opinion that קרן is even worse than the rest, so vadai we can learn out! You could say קל וחומר, מה the others which are not so strict, you're chayav, קרן which is worse, על אחת כמה וכמה you're chayav! So this is what the Gemara says. So again, the first, there's one opinion the Gemara says that קרן is less than the others, because מועדין מתחילתן, the others are מועד from the beginning and קרן is not a מועד from the beginning. And then there's a מאן דאמר that says no, because קרן is כוונתו להזיק, it's even worse. Why half damage? Huh? Why do you pay חצי נזק? The first time you pay חצי נזק. Right. But then, but then, but then later you don't. And we're talking about, we'll see, you're asking good, we'll see, we'll have to get to this inyan. Comes Rashi on these words, ולמאן דאמר קרן עדיפא, and according to the one that holds קרן is worse because כוונתו להזיק, there is no such a מאן דאמר! The Gemara says according to that opinion, so Rashi: לא ידענא היכא. Rashi says who's talking about a מאן דאמר? I don't know! Where's a מאן דאמר that קרן is worse than others? I don't know. The Gemara התם... No, but wait a second, if there's no such a מאן דאמר, why did the Gemara say according to the מאן דאמר? We have to find a מאן דאמר someplace who says קרן is worse. Now the fact that קרן is כוונתו להזיק, that's not a מאן דאמר, as the Gemara says before. The Gemara constantly says it and counts this. But to use, but to use that that makes that קרן is worse than others? Where does it come from? The Gemara brings it from someplace: ולמאן דאמר. According to the one that says, who's the one that says? Wait a second, maybe the Gemara now is coming to tell us that there's a פירוש in this ענין? No, the Gemara would say יש לומר, the Gemara would say איכא למימר it's worse. The Gemara says there is a מאן דאמר that it's worse because כוונתו להזיק, and again רש\"י לא ידענא היכא. It seemed like it's such a clear, if a מאן דאמר, everybody knows. What do you mean? Rashi, there is a מאן דאמר... This is how, so we learned the Gemara, that the first opinion says that קרן is less than the others, why? Because the others are מועד from the beginning, and קרן is not. And then there's a מאן דאמר that because כוונתו להזיק, קרן is worse.

Comes Tosafos, and Tosafos says like this. We're saying that the first מאן דאמר holds that קרן is less than the others, they have a חומרא over קרן. Why? Because they're מועד and not... So Tosafos: אין לפרש שמשלמין נזק שלם. You can't say what the Gemara means why is everything else worse than קרן, Complete... Because they pay נזק שלם. Because they pay נזק שלם, complete נזק, and קרן is חצי. Can't be! דאם כן קרן נמי אתיא כיון דלא כתיב, no, that's what it means. Who says that קרן pays חצי נזק? The Torah! The Torah said you pay חצי נזק. If the Torah would not have written the whole din of קרן, what would we say? It's always נזק שלם. The Gemara is talking here in a case where קרן would not have been written. So what does the Gemara mean by that? The Gemara is saying that if the Torah would not write anything, just בער and let's say שן, and not write קרן, and not write anything else. So we can't learn out קרן, why can't we learn? Because קרן is only חצי נזק at the beginning, who says so? The Torah! After the Torah wrote it, the Torah says. But the Torah wouldn't have written, and we're talking that's what it is, כיון דלא כתיב, it's not written yet! קשיא על המעשה, the maaseh is what if it didn't happen... We probably would not know, and ein hachi nami קרן would also be would be נזק שלם. So how could we say that if the Torah would not have written קרן, we would not learn out, because we would say קרן is weaker because it pays חצי נזק? And who says it pays חצי נזק? That's Tosafos' kashya. And it's basically a kashya on Rashi, because from Rashi it seems that's how you learn פשוט פשט. Therefore, Tosafos comes and says, \"I'll tell you a different pshat in the Gemara.\" And this will answer the kashya on רש״י, לא יסתבר הכי, I don't know the second מ״ד. He says it's not the way we think it means. The two מאן דאמר that the Gemara is talking about is different thing altogether. These are two מאן דאמר from the Gemara later, Gemara on דף ט״ו, a sugya there. זאגט די גמרא אזוי, איתמר, פלגא נזקא, when you have to pay חצי נזק, רב פפא אמר ממונא, and רב הונא בריה דרב יהושע אמר קנסא. The question is azoy: When you pay חצי נזק by תם, like קרן תם you pay חצי נזק, is it ממון, that means that you pay, like any other time you do a damage, or you're responsible for a damage, you have to pay because you're you If you damage somebody, you owe it. You steal money, you owe it. You borrow money, you owe it. It's ממון, you pay. Or is it a קנס, which means basically you don't even really really, there's nothing you owe. The Torah gave you a fine. And the Gemara explains that רב פפא says it's ממון, it's payment. No, the חצי נזק is ממון. And רב הונא בריה דרב יהושע אמר, it's קנס. And he explains, רב פפא אמר ממונא, רב פפא says this ממון, why? קסבר, he holds, סתם שוורים לאו בחזקת שימור קיימי. סתם ox is not watched. That means, really, you have to watch him. You can't say he's on himself watched, look at the קרן. One second, look, that's that's what he says. That's what he holds. ומן הדין הוא דבעי לשלומי כוליה, mimela, if an ox gores, you are responsible, should have been watched, and you should have paid the whole thing. So the part that you're paying, for sure, is ממון. ורחמנא הוא דחס עליה. The Torah had רחמנות on you and took off half. דאכתי לא יעיד תורא, after all, they never warned you yet, it's the first few times, Torah had רחמנות, took off half. But the half that you do pay, that is regular תשלומין, you pay. רב הונא בריה דרב יהושע אמר: קנסא. He says, no, it's קנס. קסבר, he holds, סתם שוורים בחזקת שימור קיימי, an ox bichlal is watched. Mimela, really, you don't have to watch it. ומן הדין הוא דלא בעי לשלומי כלל, so really shouldn't have to pay anything. Ke'ilu, you're not really responsible, it's it's not your fault. ורחמנא הוא דקנסיה, and make knas half? Half, חצי נזק. Yeah, the amount is the same. The she'eilah in the Gemara is what kind of payment it is. We'll see in a second. And the reason that ורחמנא הוא דקנסיה, the Torah kansased him כי היכי דלינטריה לתוריה. So he should watch it. So, and what's nafka mina? Just it's noge'a to later, but we've got it now. What's nafka mina if it's knas or mamon? Very simple nafka mina. מודה בקנס! The din is if a person did something which makes him pay knas, the halacha is מודה בקנס, if you admit yourself, you don't have to pay. By mamon you have to pay. If a guy comes to Beit Din said, \"I admit I borrowed the $100 I owe.\" So Beit Din, \"Oh, since you admitted, then you don't pay.\" You have to pay! Or if you come and say, \"I was mazik somebody,\" or my you're chayav. Anything it's a knas, it's not mamon, if you're מודה you're patur. That's the klal: מודה בקנס פטור. That's nafka mina, yeah? So Rav Pappa who holds that it's mamon holds that if you're מודה, you still have to pay. If a guy comes to Beit Din on his own, and he says, no eidim, nothing, you come in and say, \"You know, my ox gored, was mazik that ox, and I have to pay חצי נזק.\" Here, Beit Din will say, \"You're right, you did it, thank you. You're מודה, pay.\" And according to Rav Huna berei deRav Yehoshua who said it's knas, Beit Din will say, \"You since you're מודה, you're patur.\" So Tosafot says here,

so here we have two מאן דאמרs of what is the geder of of חצי נזק. Really, aber it's not your fault, you didn't have to watch it, so not your fault, so the guy had a loss. No, no, no, one second. So he says the two מאן דאמר that the Gemara is mentioning here, whether קרן is less than others or more than others, he said those are the two That's what they mean. The one that says קרן is less holds like the מאן דאמר קנס, חצי נזק is קנס, ממילא we say it's בחזקת שימור, ממילא it's it's a lesser היזק, less responsibility of a היזק than the rest. The Torah קנסed him, pay, give a קנס. בפועל it's a קנס, aber בפועל it's a שוואכערע היזק. The one that says אדרבה, מאן דאמר קרן עדיפא שכוונתו להזיק means the second מאן דאמר who holds חצי נזק is ממון, ממילא it is לאו בחזקת שימור, it's not watched, and therefore it's ממון. That's what Tosafot says. The she'eilah on Tosafot is, if this is the pshat, that the reason is that who is the מאן דאמר who holds that קרן is worse? The מאן דאמר who holds that פלגא, חצי נזק, פלגא נזקא, חצי נזק is ממון. But why is it worse? Why is it עדיפא? Why is it worse than a regular היזק? You could say it's not it's not less. A regular היזק, your chiyuv is also היזק. But how does he טייטש כוונתו להזיק? כי תוספות טייטש כוונתו להזיק doesn't mean the regular taytsh. כוונתו להזיק means that it's לאו בחזקת שימור. It's going to be מזיק. בחזקת שימור, and it doesn't need שימור. Everything, yeah? Yeah, aval it's a chumra, everything needs שימור. And your בור doesn't need שימור? And to watch your your ox from שן? You need that it be שימור. The ראיה היא זו היא דהנאה. דהנאה תמידית לזה. No, why? Adaraba, I'll tell you farkert. Why? Because how come by שן we didn't take off half? Tosafot, Gemara says בער, it's ממון. But why didn't רחמנא say it? Why did רחמנא say it by שן? Why by קרן? קרן, כן, הוא נהנה. יש הנאה? But קרן, there's no הנאה, שן has הנאה. So you should certainly... And by רגל? And by בור? Because שן, the other ones are they're natural to happen. As much as you're going to do שימור, it could happen. A קרן, my קרן, my קרן, farkert. If he's going to go... Yeah. So it's just not a normal thing, so you don't have to watch it all the time. No, we're saying he does. Huh? We're saying לאו בחזקת לאו בחזקת שימור. The one that says קרן עדיפא. What does לאו בחזקת שימור mean? That it's לאו בחזקת שימור and that you have to watch it. Like you have to watch everything. But I want to say that on one thing we see is that you have to watch it even less than others. As much as you have to watch it, and therefore it's it's ממון, but still it's still less. A re'aya, we took off half. That's true. With קרן. With קרן, I'm talking about קרן. So what is the why would it be what vort is there here that this would be worse because you hold פלגא נזקא, חצי נזק is ממון, ממילא is that a re'aya that you hold לאו בחזקת שימור, that's why it's קרן עדיפא? That's why it's worse? You could say it's not less than the rest, which lich'orah it's also not Why is it not less? It is less. A re'aya, it's not so pashut. It's so only ממון פלגא, חצי נזק, the Torah took off half. Otherwise they would they wouldn't be chayav at all. Oh, so it must be something that we have to say that there is something more to hear than this. And to understand this, we have to go to the sugya of the Gemara over there. Let me ask another shaila of the Gemara over there, on Rashi. We said before, what's the nafka mina whether it's knas or mamon? It's modeh. It's modeh. Mamon you have to pay, knas not. Okay, I'll read Rashi. Rashi says, ממונא, דינו שישלמנו. If you hold mamon, you have to pay. It's it's it's not a knas. ואינו קנס. והנפקא מינה, דאי מודה מקמי דאתו סהדי לא מיפטר. If you're modeh before the edim came, you're not patur if it's mamon. But if it would be knas, you would be patur. One second, one second. So Rashi adds words here: if you're modeh before the edim came. Okay. Number one, I want to ask a shaila. Why do we have a machloket later in the Gemara: מודה בקנס ואחר כך באו עדים? Normally, we say מודה בקנס, פטור. If you're modeh, you're patur. But that's if no edim came. A guy comes to beit din, says, I Ever. Yeah, no one came, everyone agrees you're patur. What happens if you're modeh and the next day edim come? There's a machloket. Rav says patur, you're still patur. Shmuel says you're chayav. העדים באו על מה? That you stole, that you did this act. Afilu if he was modeh, yeah? What do you mean? What do you mean paid for? Because he has to pay. So if you hold patur, a guy won't bring eidim. But what if the eidim come? Eidim come eidim don't know what happened. Eidim can come, they saw him next day they saw him in beit din. They saw him in beit din. So then if you No, no, one second. So one One מאן דאמר, Rav says מודה בקנס ואחר כך באו עדים is patur. The eidim don't change anything. You were modeh, you're patur, and if the eidim come, you're still patur. Shmuel says מודה בקנס ואחר כך באו עדים, חייב. מודה בקנס, פטור, but if the eidim came later, you're chayav. We're just citing the eidim, which Who's the halachah for, Rav? Right. Whatever, if they want to, they can settle it about the eidim, whatever. Let the rabbi give the shiur. It's a machloket. Rashi, by adding the words that if it's knas, you're modeh before the eidim came, you're patur, is Rashi קריכט ער אריין in this machloket here? It's mashma that if you're modeh, as long as you're modeh before the eidim came, you're patur. That means Rashi is following the opinion מודה בקנס ואחר כך באו עדים, פטור. Why is Rashi bringing it in? This Gemara has nothing to do with that. The Gemara says there is a chiluk above in the קנס. Rashi should have said nafka mina if he is מודה. If it's קנס, you're פטור. If it's ממון, you're חייב. Why does Rashi come in when there's a מחלוקת, so Rashi is not פסקנינג שאלות. So, Rashi here The Pnei Yehoshua has this שאלה. The Pnei Yehoshua has this שאלה. What is it Rashi רחמי שמים, to put his head into this ענין, which has nothing to do with this Gemara, which Gemara could have Why does Rashi try to according to that opinion, he quotes the opinion מודה בקנס ואחר כך באו עדים, you're פטור. Why? Why did Always? Is it always before עדים come that you're פטור? No, that before that before the עדים came later. It's always The פטור is Right, but if But why mention before the עדים? You're מודה, you're פטור. The kvetch is, before the עדים means that even if the עדים come later. Right. As long as it was before the עדים. Could be they're standing in the aisle. But why would he say it? It just confuses. He should have said מודה בלא עדים, מודה מעצמו. Yeah, we would never think this. Never, yeah, we wouldn't know this. When we learn that Gemara, we'll see what's the דין. Rashi Rashi wouldn't become the color of the whatever עדים do come. This so far Why? And he means to say? Well, then he wouldn't say it. He's stating the obvious. It doesn't mean that it's a No, you want to say he's not getting in to the מחלוקת. That possibly the other way. The שאלה is, is he getting into the מחלוקת or not? From Rashi, by adding these words, he is kicking it into something he didn't have to. Well, it's not מוכרח from the words. It is מוכרח, because these words are extra. He writes: \"He's מודה before\". You should have he's מודה, finish. If we already know there's an argument between Rav and Shmuel, these words are completely superfluous and extra. Yeah, you don't have to say it. What do you have to talk about if witnesses were involved? No. The kashya is באמת even stronger. There's another kashya here. At the same kashya I just asked is even stronger. The Gemara says later I don't know, whatever it is. ע״ה, yeah? Oh. אמר רב המנונא, listen to this. Rav Hamnuna said מסתברא מילתא דרב, when Rav said מודה בקנס ואחר כך באו עדים, you're patur, you know when that is? Listen: באומר if the guy says, גנבתי, guy comes to beit din, said, \"I stole.\" Now, when he stole, when a person steals you're chayav to pay keren, to pay and kefel. You pay double. Now keren is not knas. The fact that you stole $100 you have to pay back, that's that's mamon. The fact that you have to pay an extra $100, that's knas. So if a guy comes and says to beit din, \"I stole.\" ובאו עדים שגנב, then edim come that he stole, he's patur. Why? Keren He's patur No, keren is chayav. Keren chayav. He's patur on the second half, the knas. Why? Because because Rav said מודה בקנס ואחר כך even though edim came later, בית דין, פטור. But do you know why this is? שהרי חייב עצמו בקרן. You know when you're Rav holds this din? If when you were modeh, there was something you made yourself chayav in. So since you made yourself chayav in the keren for sure, because the keren you pay, so you become patur on the קנס even if עדים come. אבל, I'll say first outside, but if you're מודה if you're מודה in a case that when you're מודה, you're not that does that you're patur from everything, through your דעה you're patur, here, Rav will admit מודה בקנס ואחר כך באו עדים, חייב. חייב פטור. אם כן, אבל, he says, אבל, he gives an example. אמר לא גנבתי. The guy says, \"No,\" he doesn't admit, \"I didn't steal.\" ובאו עדים שגנב, עדים came, he stole. What's the din now? Pay כפל. חייב כפל because you weren't מודה. וחזר ואמר טבחתי ומכרתי. We know that if a person steals a שור or a שה, if you שחט it or you sell it, you have to pay ד׳ וה׳, that's a קנס. So after he's chayav to pay for the גניבה, comes running to בית דין he says, \"You know what? But I also שחט-ed it.\" Now he's מודה בקנס, but his being מודה, he's not מחייב himself anything. What's מחייב and that was not from his הודה, that's chayav because of בית דין the עדים came. But if he says ובאו עדים שגנב וחזר ואמר טבחתי ומכרתי, ובאו עדים, then עדים came to work, חייב, שהרי פטר עצמו מכלום. Because when you were מודה, you're patur. In other words, and this how the Rambam פסק׳ס it, that you and we פסק like Rav, you asked me before who we פסק like, patur, and the Rambam פסק׳ס this din that when does Rav say מודה בקנס ואחר כך באו עדים, פטור? Only if when you're modeh, there's something you mechayev yourself. Yeah. But if the the קרן in this case, but if you're modeh in such a way that your hoda'ah that makes no chiyuv, so the why were you patur? But if If עדים will come, even Rav will chayav. But the she'eilah, what by חצי נזק? We're talking by חצי נזק at דף ט״ו, חצי נזק, but you're coming, you're modeh that my שור was a תם, was נוגח. So you're modeh, you're patur, and if it's קנס, you're patur completely. If עדים come afterwards, according even according to Rav you should be chayav. So the sevara, now, not only Rashi קריכט אריין in a machloket where Rashi didn't have to, he puts his head into the machloket and says that מודה בקנס ואחר כך באו עדים פטור, when really there's a machloket, he says that patur when no one holds that way. Because even Rav, who's the one that holds מודה בקנס ואחר כך באו עדים פטור, disagrees here. So לכאורה, it's a ריזיגע קשיא. And the mefarshim ask this kushya. Rav האלט doch חייב ביי ביי טביחה ומכירה? יא, האלט doch Rav חייב. Rav האלט, מודה, ער האלט דאס ביזונדער, ווייל ער איז עטקי מודה געווען אין קרן. ער איז דאך מודה געווען, עדים באו אויף דאס וואס ער האט געגנב'ט. ער איז חייב על עדים האבן געזאגט. יעצט האט ער מודה געווען אין דעם טביחה ומכירה, נאר אין דעם קנס. So when he was modeh, what did he want? He wanted to get off the hook completely. In a case like that, you're patur, but if עדים come, you're chayav even according to Rav. So so so this doesn't... The Rashi is completely... Now the Noda BiYehuda wants to say, the Chasam Sofer also wanna say that it's not that in the case of חצי נזק, if you're modeh by חצי נזק, you're chayav backed up to כלום. Yeah, it's considered that when you did it, even though you're patur from paying, there is a certain חיוב that you brought upon yourself. What? Now the first time now next time will be a second time. If you wouldn't be modeh, then no one knows next time first time. One of your chances. So yeah, you got rid of one of your chances the first time. Yeah, yeah, one of your strikes. It's a פלא נפלא to say such a peshat. Because it's not true! Tosafot says in דף מ״א עמוד א׳, Tosafot says here that התראה ג׳ פעמים על על על פי בעליו, if it did it three times, but there was no עדים, and the בעלים did it, לא הוי מועד! That if if there is no עדות by עדים, then it doesn't make you take a chance. You can tell on yourself. You can tell, but it won't make it as next time it'll be a second. So what kind of terutz did they give? Even if you're modeh, it's a strike. Yeah, if you're modeh. So mimela, woops, we shot that. So we're back to the שאלה. Here, it does not hold like that. To explain that... So what's, how do they give such an answer? Ah, I don't know. The Noda BiYehuda, the Chasam Sofer... Eh, maybe they're talking only by העידה... It's it's not pashut. It's a very straight ahead, it's, you know, it's not a... It's just straight ahead, I can't tell you. Let's go to understand this, let's understand the מחלוקת בכלל of חצי נזק, is it קנס or ממון? And the Gemara says the machloket is when whether סתם שוורים בחזקת שימור or לאו בחזקת שימור. First of all, it's a מחלוקת במציאות. Check it out! Go to a farm, sit there for three weeks, see the oxen, see, are they בחזקת שימור or not? I mean, we don't find a מחלוקת במציאות in the Gemara. מחלוקת במציאות, you can mevarer it! I don't think they're looking at מציאות. Hamachloket is what person should do. What person should do, is he בחזקת שימור? Seems like. What, everyone's asking what he should do, but why why should he do it or not, it seems like מחלוקת במציאות. What is the nature of the animal? That's what he's asking, the nature of the animal. So find out! Go and find out what the nature of the animal is, but... So we have to find some halacha. What what? Yeah, if you hold לא בחזקת, if בחזקת שימור, you don't have to watch it for קרן. Because I guess in מציאות it's like that. You have to watch it? Yeah, קרן is less chance that it will do it. It's less chance an animal will be נוגח than an animal will eat up, or an animal walking and and and... Walks, yeah, walks wherever it goes. I mean a sevara I can see a difference, difference, but... ניין, בחזקת שימור מיינט זי די בהמה אליין איז שומר, די בהמה דארף מען נישט היטן? וואו דאס, if בחזקת שימור means that you don't have to watch it, and לאו בחזקת שימור means you do have to watch it. א שילם בהמה'ס? מען דארף ווארטן, ווייל די בהמה אליין היט זיך אפ? היט זיך אפ, היט זיך אפ. נו, היט זיך אפ. נו, ס'איז דאך א מחלוקת. מען דארף ווארטן? פאר וואס דארף מען ווארטן? זי היט זיך אפ, פאר וואס דארף זיך באוואכן? די בהמה בחזקת שימור, מיינט אז ער היט זיך אליין! ווי ס'איז גארנישט? מ'קען זיך באוואכן! מ'קען זיך באוואכן? ניין, לאו בחזקת שימור, וואס מיינט דאס? מ'דארף ניין, פאר וואס זאל זיך באוואכן? זי היט זיך אליין נישט! אה, זי היט זיך נישט, הייסט מען דארף זי באוואכן! נישט די בהמה אליין. נישט די בהמה אליין. נישט די בהמה אליין. My question was, if you have to watch it for שן ורגל, would you watch it for that and not for קרן? Yeah, you have to pay attention to... What comes to the קרן, like you said pay attention, look at its horn, it's trying to go... don't have to pay attention to it. Yeah, you just watch. When it walks, it walks, yeah, you don't have to pay special attention. Okay. It depends what I have another she'elah. It depends if who agitated the שור. You agitated the שור, it's going to go after you. That's agitating. No, like in the You agitated it, you're patur. Yeah, yes, I think he act like a shogeg. The boss? The boss. The guy who did it is chayav, yeah. Shh. הא גופא כולא סברא, כולא... Another shaila: Why takeh do they take off half? If you hold that it's בחזקת שימור, ולא בחזקת שימור, and you have to watch it, why do they take off half? Punkt farkert! If you say, ah, דרחמנא? Why it's rachmanut? How come, if you owe me $100 you borrowed, if you have rachmanut you say no, pay me only half. What, rachmanut over there? What if she killed, what the טעם רחמנות is? Rachmanut on a killer? It's the opposite! It's on the other guy, yeah, yeah, yeah. It's only the first three times. Ah, so? And by קרן, by שן ורגל the first three times you say, ah, rachmanut! It didn't happen, בער, I did a בער and there's a guy who did it the first time it happened. We don't find such things! Why is rachmanut? And same thing farkert, if I say it's קנס, because be'emet it's בחזקת שימור, you don't have to watch it. But you know what? Torah קנס you. Why Torah קנס you? What? So I don't have to watch it, why am I getting? Oh yeah, you know you should watch it. You should watch it! You don't have to watch it! Another thing, let's say even the Torah, let's say it's ממון and the Torah had rachmanut on you, why take off 50%? It's a big discount, 50%. 50%, take off 10%, 20%, what's the 50? 50% is a lot of money! Torah gave a discount of 50%. It's, it's, it's a wonder. We have to understand this whole thing of l'chorah, you can say like this, even though it sounds like it's a chidush, but you can say like this: Every time there is a נזק and you're chayav, your שור is מזיק, we have two parts to it: There's the שור's part, let's call it שור, and there's the בעלים's part. The שור was מזיק, ah, the בעלים of the מזיק. That is, you have to pay, and the payment that you have to pay is basically a combination of two halves. There is an involvement here: the שור did the היזק, and then there is the fact that you have to watch it. So that you're also responsible, the שור is responsible, and since the שור, you are the baal habayit on the שור, you have to pay the שור's share, כאילו נאמר. I'm just using, that is. And then there's your responsibility: you have to watch it, and you didn't do your job or something, didn't watch it properly, והראיה it did it. But the halacha is if you did watch it properly and it's you're patur. It's an ones, it's not your fault. So meimeila every time you're chayav is for two halves. The she'eilah is, out of the two halves, which is the ikar that the Torah is mechayev you בכלל? Is it the שור's חלק that the ikar is mechayev? And the ikar is the שור, but b'poal there's also this half so you pay for the whole thing, but the ikar is מגופו or מממונו? Oh, that's a wonderful thought for a תם! Yeah, you're getting, you're getting good! One second, one second, one second. So you have a she'eilah, you're talking about קרן, תם, I'm talking about every נזק! Every time! בשן, ברגל, everything! There are two halves. But b'poal, both halves are there. Every time a שור is מזיק, let's say by בשן, both happened, both things happened here: The שור did his share, I did my share, so between the two I have to pay the whole thing. That's why you have to pay. By קרן, by קרן, it comes out, seems to be that there is אפס a not a a Yeah. מצד the שור, if the שור does a היזק, we cannot call it that it's it's not a normal thing. Because that's his way בעצם, not enough to force the בעלים to be שומר. U'meimeila, מצד the half of the בעלים there is no reason to pay, because the בעלים didn't do anything wrong. מצד the שור, if the שור did it, then there is a reason to pay. So how much do you pay? You have to pay half! So that's why you have to pay half. So always you pay the whole thing because always you have both components in every נזק. Here, you have to pay half by by קרן, why? Because we had the בעלים only the first three times. Before we learned that there was no such thing as half, the previous shiur or the one next shiur By other No, by others it's by קרן there is half. By קרן is the only exception! And why it's the only exception? So I'm saying for this reason: Because it's it's it's unnatural, but not enough to It's unnatural that you should have to מחייב the בעלים to pay to watch. On the other hand, מצד the שור, then its שור is so Both possibilities. And therefore, it's not a מחלוקת במציאות. The מציאות is they're both true. מצד the בעלים, it's בחזקת שימור, מצד the owner. מצד the שור, it's לא בחזקת שימור. And that's why you pay half. What is the machlokes whether it's קנס or ממון? The machlokes is, when we come to נזקין, which of the two is the ikar? If you learn the ikar is the חלק הבעלים, Then in this case, you shouldn't pay anything. Why? Because הגם there is a half חלק of the שור, but that's not the ikar why you pay. The ikar you pay because of the בעלים. In this case, the בעלים חלק isn't there. So why did the Torah make you pay? That's called a קנס. Why is it קנס? Because סוף כל סוף מצד the שור, there is a problem. So even though that's not the ikar, so you shouldn't have to pay, we call it קנס. And that's why it's half. You have to ask, why is it half? Why is 50% discount? Because there is a half a thing here. If the other one that holds that it's ממון, holds that the ikar of the גדר of נזקין is the חלק השור, so the חלק השור that you have to pay, you have to pay. That's mamon. That is mamash mamon. That's Why did it take off half? It's a kashya. What did you say, rachmanut here? So why not rachmanut others? Because others, there's no reason to have rachmanut, because the חלק הבעלים is there too, so you have to pay the other half also. Here where there is no חלק הבעלים, so the תורה תקי take it off, you don't have to pay. So you pay half, and that half is mamon. So it comes out like this: that if you hold mamon is even though you pay half, that half is as good as any other mamon of any other נזק, as שן, as רגל. I if so, they have a chiluk if it's half, oh, it shows it's a bissel shvach. No, the fact that it's half is because of this half you are mechuyav to pay, unless you hold if it's kenas, then you hold the ikar is the חלק הבעלים, ממילא you don't have. Okay. Lefi zeh,

I want to say bichlal, this could explain a shita's Raavad. There is a famous shita of the Raavad, which is a strange shita. But why is the קרן from שאר weaker than the others? You said by If it's kenas? Because then you don't have to pay at all. No קרן, no קרן, what the חצי נזק, which קרן? No, we said קרן is weaker, why? So Tosafot learns it's weaker according to the מ\"ד, why did Tosafot learn the Gemara? The one that holds it's weaker holds חצי נזק קנס. What's the kind it's kenas? Why? Because really we look at the ikar of the בעלים, and the בעלים חלק isn't here. So it's less of it's less red less responsibility than any other נזקים. I think his question is, why is קרן looked upon as this worse less than שן? Oh, בגשמיות, this is בגשמיות. This is a גשמיות matter. Because בגשמיות, it's not a normal thing to happen, but not abnormal enough to say that it's abnormal. But other things are not. שן is normal. שן happens always. This It's more he has to watch it more than than שן. He's more responsible by שן. By שן more, yeah, because it's more common to happen. You've got to watch it more. Here it's less. Because and this is really גשמיות, but it's not a machloket in מציאות and we understand why half, and why they davka here it took off, not by שן ורגל, just to understand it. This explains the Raavad. There is a shita of the Raavad which they bring, they say like this, that the Raavad holds that even if you hold חצי נזק is קנס, if you're מודה, you have to pay. And everyone asks, whoa, the Raavad, like that, if it's קנס, you're מודה, you have to pay? So the Acharonim write that it's a mistake, the Raavad the Raavad never said that. What he but said was something else. He said that this is different than the regular regular קנס. We have למשל כפל, the double like you have to pay by a גנב, it's קנס. What the difference is? Said by a regular case of קנס, if you're מודה, you don't owe it. That's it, you don't owe it. Beit din will not come to you and say, you know, please pay. Don't. By this קנס of חצי נזק, he says it's different. Even though you're מודה and you're פטור, בית דין will ask you to pay. Could he be מודה if you No, the קנס is on you, we say, but but the point is, but beit din will ask you. Beit din won't force you to pay, that's why it's still מודה בקנס פטור, בית דין can't make you pay, but this is different, they'll ask you. And the mefarshim ask on that gufa, good no, so you don't make him pay, but yeah, why would you ask? Why is this קנס give in the world different than any other קנס? Because if you if you're מודה now, now your chelek comes out the ikar. That's what I'm saying. If you're going to learn, not because the ikar, because your chelek, if you hold kenas, even though we hold kenas, it means be'etzem you don't have to pay because the ikar is the חלק הבעלים, but sof kol sof, when we make you pay the kenas, we're making you to pay for something that you owe, because the חלק השור is there, and that is tashlumin. Ela mai, why do we call it kenas? Because sof kol sof, the ikar is the ba'alim, so by the ba'alim we don't have you pay. But when the but the payment, when the accounting, it's not a regular kenas. Regular kenas means we make you pay something that you have no no you don't own you don't owe, למשל, כפל, you stole a hundred dollars, you have to pay a hundred dollars. The other hundred dollars you don't owe, why you have to pay for it? A kenas! A kenas that has no yesod of tashlumin. This kenas, I want to say, is different, has a yesod of tashlumin. And if it has a yesod of tashlumin, memeila, here he says it's different, here beis din will get involved to say please pay, because sof kol sof, there is a damage that is ke'ilu you're chayav. We call it kenas back here, but it's a kind of kenas that's different than a regular kenas. So the bottom line, I'm coming to now, even though we don't pasken like the Raavad, but the yesod is there. The kenas of חצי נזק is a complete, different kenas than all the other kenasot in the world. This חצי נזק. I'm talking חצי נזק of the קרן. חצי נזק קרן, קנס as much as it's קנס, you don't have to pay. But Beis Din will say, why? But I'm saying because it's a type of קנס that has a יסוד. And that's the יסוד in תשלומין. So על פי זה, I want to go back to this. Yeah. Yeah. Yeah. Because the עיקר like every נזקין is that you have to pay is because of the שור. Which, by the way, תם he mentioned before, which I was going to say, What is the דין of ספקא דבריא? We have a דין, besides that there is חצי נזק by קרן first תם, there's another חילוק between תם and מועד on the other נזקין. All the other נזקין and even by קרן מועד, you pay מן העלייה. That means you owe the money. If you're מזיק a hundred dollars, you have to pay. Here, קרן תם, you pay only half, number one. Number two, מגופו, you only pay from the body of the שור that was נגוע that did the damage. That means, let's say the שור that did the damage was worth a hundred dollars. The damage was 500, You owe 250. You don't have to pay more than 100. You don't have to pay more than the שור המזיק was worth. Why? Only by קרן חצי נזק, on the תם. Why? Based on what I explained, we understand. Because the reason you have to pay, whichever way, whether it's קנס or ממון, is the חלק of the שור. So, it's basically all of this is the שור, it's not you, so you have to pay מגופו. The שור is responsible. And, okay, you got to keep the שור, but more than that not. Okay. But the bottom line is that חצי נזק, that קנס, is not a normal קנס. It's a, we found קנס, a special קנס.

So, based on that, I want to go to explain, and I want to say that this דין that the Gemara brought from Rav Hamnuna, that when does Rav hold מודה בקנס ולאחר כך באו עדים is patur, only if you're מחייב עצמו. But if you're not מחייב עצמו, he admits you're chayav, will be old by other knasot and not by חצי נזק of of of of קרן. Tell you why. Let's shift a little bit to understand what is the sevara of the machloket whether מודה בקנס ולאחר כך באו עדים, if you're modeh and then עדים came, are you patur or chayav?

So, the Raavyah explains it very geshmak, very interesting. It says like this. The machloket is not what is the din if you're מודה בקנס ולאחר כך באו עדים. That's a result. The machloket is something else. The machloket is, what is the reason why מודה בקנס פטור? Why are you patur? There are two ways to learn. You could learn the way you're patur, because in order to be chayav knas, it's only through עדים. If a person admits If When you admit on mamon, I admit I borrowed money. Okay, so I have to pay. But if it's only a knas, which of knas? Knas means be'etzem you don't owe it. Who could make you chayav to pay something you don't owe? עדים. So, if you come and you're modeh, It's not the pshat It's also, they know that. But it's not the pshat, you're מודה בקנס you're patur. You know what it means? You're not chayav. There is no reason yet to be chayav. רב ושמואל, תרווייהו דאמרי תרווייהו That's a good that. Yeah. Those are That's one opinion. The other sevara why מודה בקנס is patur, not because When you are modeh, we know you did it, and be'etzem you're chayav. So, your hoda'ah makes you pay the knas. The Torah, the Eibershter said, \"You're a nice guy. It's made to give an ah. Cut off the knas.\" So, מודה בקנס פטור doesn't mean you're not chayav. It means you're patur. Nafka mina will be if edim come later. If edim come later, according to the first way, the reason you were patur when you were modeh is not because you were patur, because there was no reason to be chayav. Now, there is a reason. Edim came, why shouldn't you be chayav? The second way, that you were chayav, and the Torah How are the edim going to help? The edim come and say you did it. I know you did it. And the edim are to chayav you? You were chayav already. And the Torah took it off, so that's why מודה בקנס ולאחר כך באו עדים That's how the Darkei Moshe explains. According to Rav Hamnuna, we have to say a little different vort, that Rav himself agrees to Shmuel, that be'etzem when a person is מודה בקנס, he is not chayav, not because he's patur. And he holds מודה בקנס ולאחר כך באו עדים פטור. He says, when do we say that? Only when you were modeh, you were mechayev yourself. When you're modeh and by your מודה מחייב something else, then we say מודה בקנס means that you were chayav and became patur, because you were chayav something else. So, the fact that you're mechayev something else, ממילא now you're chayav the kenas also. And nevertheless, the Torah says you're patur. It's true. So but like the case of of of גניבה he comes ושחטתי. Before, when he comes on גניבה and he says גנבתי, he's מחייב עצמו קרן, now you're chayav kenas. And the Torah says you're patur. So now if עדים will come, weiter patur. But if you're not mechayev yourself, so if you're not mechayev yourself and when you come and you say the kenas, kenas is nothing. Then you're never chayav. Even he holds you're never chayav. You're never chayav, so the עדים come, fine, so now you're chayav. Oh, that's why. That's why he says מודה בקנס ואחר כך באו עדים פטור, but when are you patur? Only if you were mechayev yourself first, then you were chayav and became patur. לפי זה, and what's the reason? The reason is because when you're modeh in kenas that you don't owe, why are you chayav? If you don't owe it, it's not holds. Why is he mechayev? If you mechayev something else, then you then you then you became chayav. This is only goes by other kenasot. By other kenasot, when you come and you're modeh in something that money that you don't owe at all, you don't owe it at all, so everyone agrees you're not chayav. Not that the peshat only you're patur, you're not chayav. But like kenas of חצי נזק we keep on saying a kenas of חצי נזק is a different type of kenas, a kenas will be even it's a type of tashlumin, so in this case, even Rav will agree that מודה בקנס ואחר כך באו עדים רב will hold in this case will be patur even if you're not mechayev yourself. Why? Because when you're modeh you are k'ilu you're mechayev, because you're modeh it's not something that you don't owe. Even though we call it kenas, but that we're saying that this kenas really is kind of really tashlumin. And here, Rav will agree that even if לא חייב עצמו, you're still patur. So what was the kashya we asked lechatchila? That how does Rashi say in this case by חצי נזק קנס, that if you're modeh before the edim, you're patur, which means even if the edim come later, you're still patur, while the din is not like that, even Rav will hold that in this case since you're not mechayev yourself anything you should be chayav? I'm saying Rav said it over there, but not here, not by חצי נזק. By other kenasot yes, but not by חצי נזק. And I want to go a step further, and this is this is a complete chidush, that not only will Rav hold in this case that even if you're not mechayev yourself, still מודה בקנס, okay, patur, I want to say that Shmuel will admit here that you're patur. Why? Because the only reason machloket is by other kenasot, not by this kenas. What's the reason? Because what does Shmuel hold? That when you're modeh, you're not chayav yet. You're not chayav yet, that's why. Even if you're mechayev yourself in something, even by keren when you're חייב קרן, you're still not the peshat that you're chayav and patur, but you're not חייב לכתחילה. Why? So he says, \"אה, you were mechayev yourself? We separate between what you're mechayev yourself and the קנס. Like by קרן, you came and said, 'I stole', there are two inyanim there: you have to pay the קרן, and then to pay the קנס. So לגבי the קרן, you're taake mechayev yourself, but it doesn't mean that when you're מודה on the לגבי the קנס, we accept your הודאה.\" But that's all if they're two separate things. What we're saying here that the the קנס itself is a chiyuv, the קנס itself is a תשלומין, so even Shmuel will admit that מודה בקנס ואחר כך באו עדים פטור in this case. So this answers our shayla. The shayla was that Rashi, how does why does Rashi get into a machlokes? Rashi says that in the case of you hold קנס by חצי נזק, it's in the case where you're מודה, you're patur even if עדים will come. So we said, but that's only according to Rav, not according to Shmuel! Shmuel holds מודה בקנס ואחר כך באו עדים חייב! I want to say מודה בקנס ואחר כך באו עדים פטור even according to Shmuel in this case. חצי נזק is a special kind of קנס. But the Raavad makes it a גילוי על הלכה פשוטה that your Beis Din will ask you to pay. But even if you don't ask him like the Raavad, but even everyone else and Rashi, everyone will agree that this is a special type of kenas that when you're מודה, you really made it תשלומין, k'ilu. Umimeila here, אה, the Torah says you're patur, the peshat is you're taka chayav, not like always when you say you're מודה without being mechayev yourself, the peshat is you're not chayav, and later when עדים come makes you chayav, you're chayav in this case and will become patur even according to Shmuel. And therefore, even here, like he'll hold מודה בקנס ואחר כך באו עדים פטור, you can understand Rashi. And that's why Rashi mentions it to tell us this chidush, that here there is no problem, everyone will agree מודה בקנס ואחר כך באו עדים פטור. Now, l'poel, just to finish off what we started, it comes out like this: that since this mamon if you hold חצי נזק קנס, there's a a גדר תשלומין. If you hold חצי נזק ממון, פשיטא ופשיטא that the half that you pay is regular like in every other case. In a prat, it's even worse. Why? Because usually you pay חצי נזק you pay the whole nezek and you pay for the חלק השוה, together with the חלק הבעלים. To have a case that the חלק הבעלים is not there and you still will pay for חלק השור? That's something that we don't find by anything. So now we go back to this Tosafot learned here that who said keren is worse? The מאן דאמר that holds חצי נזק is mamon. Why? Because כל השוורים לאו בחזקת שימור. So we ask, טאקע אזוי? According that מאן דאמר, it's like everything else, why is it worse? It's worse because there is no חלק הבעלים and still you're chayav. So in a געוויסע פרט, חצי נזק or this is even worse, קרן is worse. And that's the two מאן דאמרs Tosafos learned. There's one מאן דאמר that says that everything is worse, why? Because חצי נזק is קנס, because it's בחזקת שימור וממילא it's less. And the one that says it's worse is because he holds it's ממון, and a kind of ממון which is worse: ממון without the חלק הבעלים and you still חייב to pay. And that's why, zogt, the Gemara says אז קרן עדיפא. The only thing I have is according to this case, it's sort of like a loophole where the guy is getting away with it, like a lawyer. Right, because ultimately, if you think of it what's just, what we would think is just and not, this guy is getting away with it now because of this loophole. א שמייכלדיגער ייד. And and and because you you would think that And you would also think, but חצי נזק קנס, חצי נזק you only pay is is getting away with it. Your שור did it, and you're going to go away with it. Yeah, but here you're getting away you're getting you're getting lucky, because because we're stricter, you don't have to pay anything. That's what we're and that's how we're Why stricter? What do you mean stricter? Because it's a stricter case, because you actually because there's your Which case, case of Like here, like in קרן, where where we're saying even Shmuel would be מודה That if that's that if you're מודה, you're פטור, yeah. Yeah. So over here, why why you're מודה, you're פטור? You're מודה and you didn't have to pay anything, the other Because the Torah says מודה בקנס פטור, and in this case for sure you cannot say that it means you're not חייב. Because this case, you are מודה on something that there is a חיוב. So ממילא you're חייב, and what does the Torah mean מודה בקנס פטור? That you're חייב and the בית דין פטר you. Ikh hob, ikh hob hanoah! Ikh hob hanoah! The reason why we always say you're we're giving you off is because you already paid you already מחייב yourself to something. That's the reason why the Torah why we give you off half, but here when you're מודה, yeah, because you're מודה, you're a nice guy, and because of that, yeah. Even Shmuel would admit that מודה בקנס ואחר כך באו עדים by חצי נזק פטור. The reason he says always חייב is because he learns מודה בקנס פטור means you're not chayav. Umemela when edim come, they mechayev you. But here you can't say you're not chayav, because here the kenas that you are being modeh in is really tashlumin. We said before it's a geder of תשלומין, כאילו תשלומין. It's a diff- it's a different kind of kenas, because if for the chatzi we kenas you for the half a chelek of the shor which you takeh should pay for. Ela mai? The ikar is the baalim, so we didn't, it's only a kenas. But it's a type of kenas where when you're modeh, you're modeh in תשלומין כאילו. And if you're modeh in tashlumin, why should you say patur? Once the Torah patar you, the Torah patar you, that even if the edim come later, you're still patur. You don't hold of tashlumin. A groisen dank. Yossi, I'll take it.