Baba Kama 33a - Calculating half damages of Tam

The Rosh understands from rashi that the calculation of "chatzi nezek" in case where a Tam and Mu'ad damage each other, is to consider the difference to be the damage and pay half of the difference. For example, if the damage of the tam to the mu'ad is $200, and the damage of the mu'ad to the tam is $150, since the net damage to the mu'ad is $50, the tam pays half of that which is $25. Or for example, if the damage of the tam to the mu'ad is $200, and the damage of the mu'ad to the tam is $50, the difference is $150, of which the tam pays only half which is $75. The Rosh is medayek from Tosafos who considers the entire mishna (except for the opinion of R' Akiva) to be superfluous, that they assume we calculate so that the tam will only be liable for half the damage that it caused. Therefore, in the first example we divide the $200 in half so that the liability of the tam for the mu'ad is only $100, and the liability of the mu'ad to the tam is $150 so that the mu'ad has to pay the tam. Also, in the second case the liability on tam for mu'ad is $100, and mu'ad for tam is $50 so the tam will only have to pay $50. See the nimukei yosef brings different possibilities of how to calculate.

Tosafos seems to be correct. Since a tam only pays half, we should consider the damage the tam did to the mu'ad to be half of what it actually is, and only then calculate the difference in damage. Why does rashi consider the damage to be the difference?

It seems that there is a fundamental question in the concept of chatzi nezek for a tam. Is chatzi nezek a din in how we view the damage (i.e. half of what it was), or is it a din in the payment (it is always reduced by half)? Tosafos holds that chazi nezek is a din in the damage, that we value the damage as half of what it actually was. Therefore, when a Tam causes $200 worth of damage, we view it as it only damaged $100 worth. But rashi understands that the damage is viewed in full, but regarding the payment, a Tam only pays half of what he owes. Therefore, we figure out the net damage that the tam owes the mu'ad and then divide it in half.

Baba Kama 32a - Hitting one's wife

This may be obvious, but....

The Hagahos Ashri writes on our sugya that one is not allowed to hit is wife and is chayev for any damages for injuring her. If he continues to hit and embarass her in public, we force him to divorce her and she is entitled to kesubah. The Yam Shel Shlomo (21) elaborates on the severity of the issur. He explains that if one is responsible for unintentional injury that she incurs through tashmish hamitah, certainly when he intentionally hits her. He also quotes in the name of the Maharam:

ואין זה דרך בני עמינו להכות נשותיהם כמנהג הגוים, חלילה לכל בן ברית מעשות כדבר זה, ואם היה בא לפנינו דין זה שאשה קובלת על בעלה שמכה אותה היינו מחמירים עליו מאילו היה מכה את אחר

Baba Kama 29b - Acquiring a "Bor" without a real kinyan

In the gemara R' Ashi explains that although typically one would need to raise an object 3 tefachim off the ground (to break the din of lavud) in order to make a kinyan on it, one can acquire an object in reshus harabim to be considered his and be chayev for damages even without lifting it 3 tefachim. However, this is only if one intends to acquire it, but if one does not intend to acquire it they will be exempt since they did not place the object there to begin with, but rather it was there from before. The question is what type of kinyan can be made by lifting the object less than 3 tefachim and having intent to acquire it?

Rashi implies that since there is an opinion who holds that a hefker object can be acquired through "habata" - looking at it, although we reject this opinion, we see that it is easier to acquire a hefker object than it is to acquire an object that is owned by someone else. Therefore, although one may need a hagab'ah of 3 tefachim for a standard hagba'ah, it is not necessary for a hefker object.

Tosafos also mentions this approach. Tosafos also mentions the possibility that the shovel which is the vessel of the person shoveling, can acquire for him without a hagba'ah, when he has intent to acquire it. Also, when one picks something up with their hand, they acquire it even within 3 tefachim of the ground.

Perhaps we can offer another approach. The gemara is working with the assumption that one is chayev for being mafkir his bor - meaning, that even if one does not own the object they can be chayev for bor. Therefore, it is possible to suggest that although normally one would require a standard kinyan to acquire the zevel of hefker, that is only to make him a full fledged owner. Here where he is merely acquiring it to be chayev for it's damages, even lifting it a little with intent to acquire would make him responsible for the damages that it causes.

Baba Kama 28a - Hitting to prevent them from doing an aveira

The gemara tries to prove that one can take the law into their own hands by physically forcing their slave to leave their home after the time of his slavery has expired, even though there isn't any loss. R' Nachman Bar Yitzchok argues that even the opinion who says that normally one cannot take the law into his own hands would agree here because it is speaking about a case where he was married to a shifcha, who is now forbidden to him, so he has a right to stop him from doing an issur. Both Rabbeinu Chananel and the Rambam (Hil. Avadim 3:5) rule that the master would be patur for injuring the eved when he is throwing him out of the house, as the braisa seems to imply, that he is patur. But, it is very possible that it is assur l'chatchila to hit him and to cause him physical harm, even when trying to stop him from an issur. 

However, Rashi writes explicitly:

ורשאי להלקותו ולהפרישו, דהאי דינא לאו לנפשיה הוא

Rashi implies that one is allowed to physically stop someone from doing an issur, even if it will casue him harm. This is a tremendous chiddush. Although we know that beis din can force people to do mitzvos by hitting them, and presumably also stop them from doing issurim by beating them, where do we find that within the personal obligation of tochacha we would allow one to violate the issur of chovel b'chaveiro and hit his friend?

Baba Kama 26b - Forgetting the Rock in your lap

The gemara says that if one realized he had  stone in his lap and later forgot that it was there, and he stood up and hurt someone, he is exempt from having to pay damages because even though he realized it was there originally, since he forgot he is not considered negligent rather it is considered "shogeg". The Nimukei Yosef explains that at the time he placed the stone on his lap he was not negligent since he expected to be careful, and at the time he forgot he is not negligent because forgetting is an o'nes. Based on this the Nimukei Yosef writes in the name of Rama, that one who intentionally pushed off davening until the last hour of z'man tefillah, and then in the last hour forgot to daven, is an o'nes, so he can daven tashlumin to make up for it. However, the Nimukei Yosef writes that for tefillah one is required to be more careful because we find that chazal themselves prohibited certain activities so as not to push off davening because they were concerned that one may forget. Therefore, if one violates this by intentionally pushing it off and then forgetting they are considered negligent and cannot daven tashlumin. The Yam Shel Shlomo (35) disagrees and says that he can daven tashlumin, as the shulchan aruch paskens (108:8).

The machlokes between the Nimukei Yosef and Shulchan Aruch seems to be, when one intentionally violates a geder or s'yag set up by chazal to prevent one from forgetting to daven, is that called negligent or accident. The Nimukei Yosef seems to understand that the s'yag becomes like the mitzvah itself, where violating the s'yag is tantamount to intentionally violating the mitzvah. But the Shulchan Aruch and Yam Shel Shlomo understand that the s'yag does not become part of the mitzvah itself, so violating the s'yag is still not as severe as the violation of the actual mitzvah, and would qualify as an accident.

Baba Kama 25a - Dayo Lavo Min HaDin

The Rambam in his pirush hamishna explains that dayo is an accepted concept that everyone must agree with since it is learned from a pasuk and is d'oraysa. However, R' Tarfon and the Rabbonon argue about the application, whether we use "dayo" to destroy a kal v'chomer or just to limit a kal v'chomer. That is why the gemara cannot tolerate the possibility of there being a tana who rejects "dayo" even when it is just limiting the kal v'chomer, since it is a din d'oraysa.

Why does R' Tarfron hold that if the "dayo" would destroy the kal v'chomer we would forgo on the "dayo" in order to maintain the kal v'chomer?

Rashash explains that without the pasuk by miriam we would not limit the kal v'chomer at all because the entire logic of the kal v'chomer is predicated on the realization that the 'chamur' has chumros over the 'kal'. But, it is a gezeiras hakasuv that we say "dayo". R' Tarfon holds that since it is a gezeiras hakasuv, 'eil licha ela chidusho' - just as by miriam the dayo is just limiting the kal v'chomer, we can always only use dayo to limit the kal v'chomer. The Rambam also seems to understand along these lines. When we were given kal v'chomer as one of the 13 middos, it was meant to be used whenever possible to be mechadesh dinim. I would add that it is as if we have a mesorah telling us to make every single kal v'chomer that is possible to make (unless there is a pircha). Therefore, if we would destroy a kal v'chomer based on dayo, the Rambam says: יהיה זה הקל וחומר לשוא ולא יוסיף לנו ידיעת שום דבר - that is why we forgo the dayo and darshen the kal v'chomer.

Perhaps this explains Rashi in Succah 30a who holds that every one of the 13 middos requires a mesorah, but kal v'chomer doesn't. Why? The answer is that kal v'chomer is not really an exception, rather everything always needs a mesorah. But the mesorah by kal v'chomer is that every single kal v'chomer that can even be made without a pircha, is true. Even when dayo is applicable it will still not undermine the essence of the kal v'chomer.

On another point, the Pnei Yehoshua asks how can the dayo by miriam be the source for dayo of chatzi nezek. Perhaps the concept of dayo only applies when we try to create a din that we don't find a precedent for in any other case, such as  being locked up for 14 days. But, since we find a din of nezek shaleim in reshus hanizuk by shein and regel, maybe dayo will not limit keren in reshus harabim to chatzi nezek? He points out that according to Tosafos the 14 days are also not arbitrary, rather they are sourced in the relationship with Hashem being double the father and mother, yet we say 'dayo' to limit the kal v'chomer, so here too we should say dayo.

Baba Kama 24a - Kiruv Nigichosav and Richeik Nigochosav

The Tur (O.C. 144) writes that the Maharam M'Rottenberg who would say 90 times on Shemini Atzeres "mashiv ha'ruach u'morid ha'geshem' to create a chazaka. His logic was that if 3 times a day for 30 days works, then certainly it would work when it is said on one day 90 times. His proof is from our mishna where R' Meir holds that if an animal can become a mu'ad for goring once a day for 3 consecutive days, certainly it can be a mu'ad for goring 3 times in one day. However, Rabbeinu Peretz argues because the logic only makes sense for an animal turning into a mu'ad, where the logic dictates that the closer in time that the gorings take place, the more prone the animal is to gore. But, davening is dependent on one becoming accustomed to saying "mashiv haru'ach" and the time of 30 day may be a significant factor in changing one's habit.

The Beis Yosef quotes in the name of R"I Abuhav, that the Rosh agrees with the Maharam and rejects the distinction made by Rabbeinu Peretz. His rationale is that even the "הרגל הלשון" is also based on changing the nature of a person from what he was accustomed to until now, and therefore it is exactly the same as an ox turning from tam to mu'ad.

It seems that the machlokes maharam and Rabbeinu Peretz is dependent on the rationale of why an ox becomes a mu'ad after 3 times. It is clear from the gemara 15a that a mu'ad is considered an ox that is natural to gore. The question is, does the 3 times goring change the nature of the animal from tam to mu'ad or does it reveal that all along this animal had a bad nature that causes it to gore. If we assume like the first approach that it is a change in the nature of the animal, it is exactly the same as changing one's nature from their being accustomed to not saying mashiv haru'ach (as the R"i Abuhav explains that they are both based on changing the nature) and therefore we can apply R' Meir's kal v'chomer. But if we assume that R' Meir's kal v'chomer only applies to a case where we are trying to show that the animal was always a goring animal, we cannot learn from there that the "kiruv ni'gichos" helps to change the nature from what it was (which is the opinion of Rabbeinu Peretz).

R' Shlomo Eiger asks how we can learn anything from R' Meir since we pasken like the Rabbonon who reject his kal v'chomer? Perhaps the Rabbonon don't reject the logic of the kal v'chomer, rather they assume that the pesukim by mu'ad demand that it be over the course of 3 days.In a case where the pesukim indicate it has to be spread out, the Rabbonon insist on it being spread out, but in the context of mashiv ha'ruach they would agree with R' Meir's logic. Their proof from zavah is not that we reject R' Meir's logic in general, rather that we take the pesukim as is in that context, and assume it is a gezeiras hakasuv to take it as is in this context.

Baba Kama 22a - אשו משום חציו או משום ממונו

The Nimukei Yosef (10a b'dafei haRif) asks his famous question, if fire is like an arrow, how can we allow one to light a fire before shabbos that continues to burn on shabbos? This should be prohibited because it is as if the Jew who lit the fire before shabbos is continuously lighting it at every moment that it is burning thereby violating shabbos? He answers that the concept of "eisho mi'shum chitzo" says that since the fire is likely to spread, all the damage that is eventually caused later is as if it were completed right now at the moment that the fire was lit. Therefore it is permitted to light a fire before shabbos, because the ma'aseh of lighting is completed immediately before shabbos. The Nimukei Yosef then proves that we cannot possibly view it as if one continuously lights the fire every moment that it is burning, because if this were the case the person who lit it should not be liable for any spreading of the fire, since at that point it is no longer in his control to take back and he is an absolute o'nes. But since we view the act to be complete immediately, when it is still in his hands to abstain from lighting it, we can hold him responsible for all later damage as if it were already done at the time of lighting.

The assumption of the Nimukei Yosef in his proof is debatable. He assumes that although one made a concious decision at the time of lighting the fire to light it, if the chiyuv for eish would be that every moment it burns is as if he were lighting it, he could not be held responsible for damages caused by the fire once the fire is out of his control since it is a complete o'nes. The Steipler (21) quotes from a Ramaban in teshuva who argues and says that if a person would knowingly put himself into a situation of o'nes where they will later cause damage, even though later on it will be done b'ones, he is chayev. Even though the act of damage is only done later at a time where he is an o'nes, he is responsible for the decision that he makes now which will cause the damage later.

The Steipler cites the gemara 27b as proof to the nimukei yosef. The gemara says that if one throws keilim off the roof at a time when there are pillows underneath to cushion the fall, he then jumps down and removes the pillows, he is patur. The act of throwing didn't cause damage since at the time the pillows were there, and the removing of the pillows is only a gerama (an indirect cause) for which one is not liable. Now, if we consider the entire act of damage to be completed when the objects were thrown from the roof, as the nimukei yosef maintains, since at that time they were not set to break, it makes sense that the person cannot be liable for throwing. But if we consider one who "shoots an arrow" to be actively causing damage at every moment, the moment after the pillows are removed and the objects hit the ground it should be considered as if the thrower smashed them at that moment and be liable. From the fact that we exempt the thrower is a proof to the nimukei yosef.

Baba Kama 19a - Causing Damage from Reshus Harabim that damages in Reshus Ha'Nizuk

The Rosh writes (1:1) that shein and regel are patur in reshus harabim because "it is normal". Why not just say that its a gezeiras hakasuv (i mentioned this in an earlier post)? Rosh answers that regel is patur in reshus harabim because it is normal and well accepted that the animal has a right to be there, and it is impossible to demand that the owner follow it at all times. Based on this, the Rosh says that if the animal stepped on a piece of wood in reshus harabim that broke objects on the other end in the reshus hayachid, the owner of the animal is exempt since the animal was walking in an area where it has a right to walk.

This seems to contradict our gemara that talks about "tzroros", when the a pebble flew out from the animal that was walking in the reshus harabim and caused damage in reshus hayachid, we conclude that the owner is liable (chatzi nezek since it is tzroros). The Bach on the Rosh understands that the two rulings, being patur by the long piece of wood, and chayev by the pebble can be reconciled. However, he doesn't really explain the sevara of the distinction.

Perhaps the distinction is that when there is a lapse of time between the cause of the damage and the actual damage, such as when a pebble flies out from the animals feet (the cause occurs seconds prior to the break), we are forced to view the pebble as the "mazik" rather than the animal. Since the "mazik" is in the reshus hanizuk, the owner of the animal who is responsible for causing that damage is chayev. But when the animal steps on along piece of wood and at that moment it breaks vessels on the other end, the cause and effect occur simultaneously. Since there is no lapse of time between the cause and the effect, we can view the animal as the "mazkik. Being that the animal is in reshus harabim, the owner isn't liable. In short, determine the "mazik" as the cause of the damage at the moment of the damage. Therefore, the moment of damage by the pebble is when it smashes the object, and since the "mazik" which is the pebble is in reshus hayachid, the owner is liable. But the moment of damage by the piece of wood is when the animal steps on it, and since the "mazik" is the animal which is in reshus harabim, the owner is exempt.

Baba Kama 17 - 18 - Machlokes by Halacha l'moshe m'sinai

The Rambam (Hilchos Mamrim 1:3) writes:

דברי הקבלה אין בהן מחלוקת לעולם, וכל דבר שתמצא בו מחלוקת בידוע שאינו קבלה ממש רבינו

The obvious question is the machlokes between Rabbonon and Sumchos by chatzi nezek of tzeroros, which is clearly a machlokes on a halacha l'moshe misinai. The maharatz chiyus quotes this question from the Chavos Yair (192), and suggests based on the pirsuh hamishna of the rambam at the end of edyos where the rambam writes that we have a tradition that Eliyahu Hanavi will do good for klal yisroel at the end of time, but there is a machlokes on the specifics. Here too, all agree that tzroros is a halacha l'moshe misinai that it is included in damages that one is responsible for, but they argue how much one is chayev.

The difficulty with the approach of the maharatz chiyus is that R' Ashi asks according to Sumchos whether the halacha l'moshe misinai of tzroros applies to "koach kocho" according to sumchos. This question only makes sense if we assume that kocho is like gufo, and it is obvious without any halacha l'moshe misinai that one should pay full, but "koach kocho" may not be like gufo and we can apply the halacha l'moshe misinai to reduce the payment to chatzi nezek. It is also clear in Rabbeinu Chananel 19a, that the question of "koach kocho" is whether sumchos agreees to the halacha l'moshe misinai and applies it to koach kocho, or does he reject the halacha l'moshe misinai entirely.

The Chasam Sofer (Beitza 5a - pg. 20) offers another approach. We certainly find many cases of machlokes about halacha l'moshe misinai. The Rambam doesn't mean to say that a machlokes cannot develop on a tradition, rather he means to say that when there was a machlokes about a tradition and the rabbonon of the generation agree to one approach and reject the other, essentially deciding that the tradition of the one they accept is correct and the other is not. At that point, no later generation can restore the machlokes and rely on the tradition of the yachid (which can be done by an argument that develops from 13 midos).

Baba Kama 17b - Major car accident following a fender bender

Reuven is driving behind Shimon and smashes into Shimon's car, destroying his fender and causing $500 worth of damage. Shimon continues to drive home and gets into a terrible accident that completely totals his car. Reuven claims that he should not have to pay for the damage that he caused because even had he not caused the damage, it would have happened due to the later accident. Is Reuven obligated to pay the $500?

Rashash learns from Tosafos  that Reuven is responsible.

Tosafos says that although in the case of the gemara where one throws a vessel from the roof and the other one smashes it before it hits the ground, the thrower is chayev and the smasher is exempt; in a case where one throws a stone at a kli and before it hits someone else smashes it, the smasher is chayev and therefore the thrower is patur. The argument of "מנא תבירא תבר" - I broke an already broken item, only applies to a case where the item itself that was eventually damages was thrown, not when another items is thrown at it. The logic is clear. When one throws a stone at a kli, he has no connection to the kli until his stone makes contact with it, so if prior to that someone else smashes the kli, the smasher is fully responsible.

Based on this the Rashash says that if Reuven smashes Shimon's vessel, but later a fire occurs and burns the broken vessel, Reuven is responsible to pay for the damage he caused. Why? Because even if Reuven would smash the vessel after the stone has been thrown, he would be obligated to pay, certainly if he broke the kli prior to the fire heading to Shimon's home, Reuven is chayev to pay. Similarly in the case of the car accident, Reuven would be obligated to pay because even if at the time of the fender bender there was already a train headed right at Shimon's car and it would definitely be destroyed, Reuven is liable for the damage he caused [the rashash in the end suggests that if the fire was already in the chatzer, perhaps reuven would not be liable, but based on this Tosafos he still should be].

Baba Kama 16b - Tzedaka to People who don't deserve it

Yirmiyahu requested that even when the goyim try to do something good and give charity, Hashem should send their way people who are not proper and don't deserve it so that they don't receive reward for their actions. The Nimukei Yosef comments that one does not receive reward for giving to aniyim who don't deserve it, only if he knows that they are not proper and don't deserve it. But, if one is approached with a request for tzedaka and he doesn't know the person and it is possible that he does deserve it, there is certainly reward for giving tzedaka under those circumstances (even if in truth the person did not deserve it). The Nimukei Yosef explains:

שהרי לשם מצו מכוין, ועוד דאי לא תימא הכי אתה נועל דלת בפני כמה מהוגנים במקום שאינם ניכרים

Based on this, the tefillah of Yirmiyahu is strange - he was asking Hashem to send their way people who they know don't deserve it, so that they won't receive reward for giving them tzedaka. If the givers realize that the receivers don't deserve it,  why would they give them? Based on the nimukei yosef we see that there are 2 possible rewards for tzedaka, 1. for what the money accomplishes, 2. the good intent of doing it. Yirmiyahu knew about them that they would not be giving tzedaka l'sheim mitzvah, rather they would have some ulterior motives. Nonetheless, if the tzedaka ended up by someone who needed it, there would still be reward. Therefore, Yirmiyahu davened that Hashem should send them people who don't deserve it (even though the giver doesn't realize that they don't deserve it) so that they will not have reward for the intent or for the accomplishment.

Baba Kama 15a - Believing testimony of Non-jews

The gemara is medayek from the mishna that for testimony of damage we require Jews. The question is, why is it different than any other testimony where only b'nei bris are believed? The Nemukei Yosef says it is brought agav the others in the mishna, but really not necessary. The Rosh says that we would think to believe non-jews in the realm of damages either because we want the nizuk to be compensated or we had a hava amina to believe goyim when a goy was the one who damaged, so the mishna needs to say that we only believe jewish witnesses. Yam shel shlomo says that since in their courts, they are believed, we can also believe them, so the mishna needs to say that a jewish court cannot take money even from a goy who was mazik unless there are Jewish witnesses.

The Rambam in his commentary on the mishna says that since damages primarily occur in areas where Jews aren't present such as around farms and the like, we would think that those who are generally around in these areas can be trusted to testify about the damage. The Rambam also indicates that this is the hava amina in the Yad Hachazaka (nizkei mamon 8:13):

אין הנזקין משתלמין וכו' אלא בראיה ברורה ובעדים הכשרים להעיד, שלא תאמר הואיל ואין מצויין באוריות הסוסים, וברפת הבקר, וגדרות הצאן אלא העבדים והרועים וכיוצ"ב, אם העידו שבהמה זו היא שהזיקה את זו שומעין להן וכו

The Terumas Hadeshen (353) was asked about 2 women who were fighting about their makom kavuah in the shul (obviously in the veiber shi'il), and one had 2 women who were willing to testify on her behalf, can their testimony be admitted into th court? He rules that since women are more frequently found in that area, their testimony may be accepted. He supports this from the gemara in kiddushin 73b that the midwife is believed about a be'chor, since it is usually a woman who is present at childbirth. Why then do we not believe pesulei eidus such as goyim and women in the context of damages based on the same logic? The Terumas Hadeshen explains that if we believe pesulei eidus in the context of damages we are afraid of people hiring them to extort money from others, but in circumstances which are not common and only occur once in a while, we can use the sevara that the rambam rejects to believe even pesulei eidus. See Yam shel shlomo (41) who quotes this and seems to agree fundamentally, but takes issue with ever believing non-jews for these things because - פיהם דבר שוא ומרמה

The Rama (Choshen Mishpat 35:14) says that me'ikar hadin those who are passul for eidus are not even believed in areas where kosher witnesses aren't common. However, there was a takanas kadmonim to believe women in areas where men are not frequently found or for things that men usually will not know (such as the clothes that a woman was wearing).

Baba Kama 12a - Kinyan Agav: D'oraysa or D'rabonon

We discussed this issue in Kiddushin 5a.

http://hearos.blogspot.com/2008/11/kiddushin-26-kinyan-agav.html

In a nutshell, Tosafos here holds that the entire discussion of the gemara whether an eved is like karka or metaltilin is only on a d'rabonon level, but on a d'oraysa level an eved is definitely like karaka. Based on this, kinyan agav which is the focus of the discussion must only be d'rabonon. The Ketzos (202:5) and R' Akiva Eiger (chiddushim) both understand that kinyan agav being d'rabonon can be reconciled with the gemara in baba basra that says it works to be makneh money so that someone else can use it to redeem ma'aser sheini, without having to add a fifth. The concept may only be d'rabonon, but through hefker beis din can have d'oraysa ramifications.

Tosafos later in baba kama 104b, in the context of writing a harsha'ah only for one who has peoperty where "hoda'ah" works to make it as if he has property, writes that hoda'ah will not work for redemption of ma'aser sheini even though kinyan agav would. It is unclear if the root of the distinction is that "hoda'ah" is only a kinyan d'rabonon whereas "agav" is d'oraysa, and only a kinyan d'oraysa would work for redeeming ma'aser sheini. Or if they were both d'rabonon, but "hoda'ah" just provides ne'emanus so that beis din will conduct themselves as if you have property and write a harsha'ah but will not actually officiate a kinyan. Since "agav" will be a binding kinyan, albeit only d'rabonon, it will work for redeeming ma'aser sheini.

2. Tosafos struggles with the gemara that cites Shmuel's din that when one makes a kinyan on a piece of property he can acquire with it all properties since they are attached, which is a d'oraysa concept. Why does the gemara only ask this on the opinion who says eved is like karka, that this should work by eved; even if eved is like metaltitlin, that is d'rabonon but d'oraysa he is like karka so for Shmuel's din everyone should agree that it works by eved even if he is not in the property? R' Akiva Eiger (gilyon ha'shas) suggests that the concept of Shmuel may not be based on an eved having a status of karka but rather on the actuality of all land being connected which would not apply by eved. The opinion who holds eved is like metaltilin will simply say that when the eved is not in the karka, the kinyan on karka doesn't work since he is not "attached" to the ground. When the eved is in the karka, the kinyan works as "agav" since m'drabonon we view an eved like metaltilin. BUT according to the opinion who says that an eved is like karka, the only rationale for a kinyan on the land working on the eved when he is in the land is that it is like he is attached (because agav only works by metaltilin), so even if he is not in the land it should work as if he is attached.

The idea we learn from R' Akiva Eiger is that sometimes the effectiveness of the kinyan is not based on the "din" rather on the "metzius" of being attached to the ground. Based on this, why would the gemara assume that whether or not one can write a pruzbul based on owning an eved, to be whether an eved is like karka or metaltilin. Being that the rationale for requiring karka for pruzbul is that it must be something which cannot be destroyed (as tosafos says), it would seem more logical that it should be dependent on being attached to the ground, rather than having a din "karka"?

Baba Kama 11a - Sfeik Sfeikas that Contradict

Tosafos explains that we cannot create a sfeik sfeika for a woman who gave miscarried over a 2 day period, to be metaher her on the 15th day of her miscarriage, maybe most of the child came out on day 1 so she will enter days of tahara on 15, and if it only came out on day 2 maybe it was a male so there are only 7 days of tu'mah. The reason we can't use this sfeik sfeika is because there is a contradictory sfeik sfeika that one will use on day 41 to be metaher the blood she sees on that day. Maybe she miscarried on day 2 so that 41 is still within the 40 days, and maybe it was a female so that she is still in yemei tahara.

From this Tosafos the Pri Megadim (y.d. 110 - additions to kuntres of shach 1) says that we cannot use a sfeik sfeika when there is another upcoming halacha for which we will want to use an opposite sfeik sfeika, since it is an inherrent contradiciton. However, it is not clear whether we disallow this type of sfeik sfeika since both sfeikos are in direct contradiction to one another. But, in a case where only one of the two sfeikos will be used in contradiction, maybe we can still rely on sfeik sfeika. The Pri Megadim proves from Tosafos in Nidah 27a that even if just one of the sfeikos contradict, we cannot use that safeik as part of a sfeik sfeika.

Baba Kama 11a - Evaluating for a Ganav and Gazlan

The gemara concludes that if one steals an item and ruins it, he is not able to simply return the broken item and pay for the damage, rather he has to pay in cash for the entire item, or replace it with an equivalent item. However, when one damages, or borrows an item and damages it b'ones, he can simply return the item and pay the depreciation amount. Why? Tosafos explains that when one steals an item they immediately acquire the item by removing it from the reshus of it's owner, and therefore are liable to reimburse the owner for the entire item (not just the difference from the time it was stolen and the time it is returned). But, when one damages, he is only responsible for the amount that the item depreciated due to the damage, but whatever remains still belongs to the original owner. Based on this, a borrower who is responsible for o'nes is also considered to acquire the object when he borrows it and therefore is responsible for the entire item.

Why is a "sho'el", a borrower, considered to make a kinyan at the time he accepts shemira? Just as a shomer sachar is only responsible for what was stolen but can return whatever remains and just pay the difference, a sho'el should be able to do the same? Tosafos understands that since a sho'el is responsible for o'nes, he responsibility cannot begin at the time that the o'nes occurs because one cannot be liable for a complete accident. The only way that a sho'el can be responsible for o'nes is because he makes a kinyan on the object when he borrows it. Based on this, there is a major difference between the chiyuv of a shomer sachar/shomer chinum and a sho'el. A shomer sachar/chinum is responsible for their negligence in not protecting the object, and that obligation begins at the time of the incident. A sho'el on the other hand, is not responsible for the incident but responsible at the moment he borrows to return the item as it is at that moment.

Baba Kama 10a - Corpse Assur B'hana'ah

Tosafos asks why we need a special pasuk to exempt a person who is killed by falling in a pit, it should be included in the drasha of והמת יהיה לו which means you are only chayev when the corpse can belong to the owner of the animal. Just as we exclude pesulei hamukdashin which cannot belong entirely to its owner, we should exclude adam as well since he is assur b'hana. Tosafos answers that from this pasuk alone I would have said that the ba'al habor is chayev for being mazik a goy, since he is mutar b'hanah, so we need a pasuk to exempt a ba'al habor for the death of all people.

Shulchan Aruch (Y.D. 349:1) writes that even a non-jewish corpse is assur b'hanah. The Nekudas Hakesef quotes this from a Teshuvas Harashba. But, the Nikudas Hakesef points out that both our Tosafos and the Magid Mishna hold that only a Jewish corpse is assur b'hana'ah. Gr"a proves that Tosafos is correct from David who used the orlahs to be mekadesh an isha. He also points out that the Rashba in chiddushim says like Tosafos.

However, the Pischei Teshuva reconciles Tosafos and the Rashba by saying that it is not assur d'oraysa, and that is why a special pasuk is needed to exempt when a person is killed in a bor, but is assur m'drabonon. 

hidur mitzva

Reb Avi, didnt see you posted. Hope i am not doubling up....
בענין הדיור מצוה

בגמרא מחלוקת אי שליש מלבא או מלגאו. ויש מ"ח ראשונים שמובא במנב"ב אי ספק לחומרא או לקולא. ובפשטות המחלוקת אי דין הדר הוי דאורייתא או דרבנן. וכן ביאר רב יצחק אלחנן בעין יצחק.

והריטב"ט מוכיח (בסוכה) דהדר רק דרבנן מזה שמפורש בגמרא לרבנן דאגד של לולב שהוא מדין הדר לא מעכב, ואי הוי דאורייתא לא מצינו חילוק בין לכתחילה ובדיעבד בדינים דאורייתא. ובדומה מבואר בתוספות מנחות ל"ט שרק בקדשים יש דין שצריך שנה עליו הכתוב כדי שיעכב.

ושיטת המאירי בלולב היבש (ריש לולב הגזול) כשיטת רש"י שפסול מדין הדר, ומפורש שהדר הוי דין של בדיעבד ומדוארייתא, ומצד שני בדין של עשה לך ס"ת נאה (שבת קלג) מבואר במאירי שהוי רק אסמכתא. ומוכח שס"ל למאירי שיש שני דיני הדר אחד מדאורייתא שמעכב כעין ביביש, ואחד דרבנן. ובגדר הדינים בעצמו מפרש שאי ניטל כל הדרו הוי דאורייתא אך אם הוי רק תוספת נוי הוי דרבנן.

ובשיטת רש"י יש לומר קצת אחרת מהמאירי. שיש לחקור אי הידור מצוה הוי מצוה בפני עצמה או הוי סניף לכל מצוה ומצוה. ובלולב היבש שפסול לשון רש"י משמע שהוי חלק ממצות לולב ולא פסול בפנ"ע וכך גם מוכח דאי הוי דין בפנ"ע א"כ אף שלא קיים דין הידור אך מדוע שלא יצא יד"ח לולב. אך ביומא דף ע' לגבי אלו שהביאו את ספרי התורה שלהן לבית המקדש ביום הכפורים, לשון רש"י שהביאו כדי להראות נוי של הס"ת ותפארת בעליה שטרח להתנאות במצות, ומבואר שזה סתם דין בפנ"ע של נוי מצוה שלא הוי חלק ממצות כתיבת ס"ת ולכן לא מעכב בדיעבד.

ולפ"ז יש להסביר שיטת רש"י הכא בב"ק. דשיטת רש"י שהידור עד שליש הוי בקנייה, דהיינו כשקונה אתרוג צריך לבחור עד שליש יותר מהודר. והראשונים מקשים דא"כ אין לדבר סוף דתמיד ימצא יותר יפה וילך ויקנה היותר יפה. והמנ"ב מביא הירושלמי שהכונה של שיטה זו שפעם אחת יקנה ויותר לא. והנראה שרש"י לומד שהידור הוי דין בפנ"ע ולכן הוא דבר יחסי לכל אתרוג ואתרוג, אך תוספות סובר דהידור הכא הוי ג"כ סניף ממצוות אתרוג, וא"כ סובר שלא יכול להיות דבר יחסי ומשתנה מאתרוג לאתרוג אלא הוידין במצוה, ולכן מבאר שהתורה חייבה להדר בשליש מאתרוג ששיעורו מצומצם.

עפ"י שיעור ששמעתי מגאון אחד ר"מ בירושלים

Baba Kama 9b - Hidur Mitzvah

2 Hearos:

1. R' Moshe (o.c. 187) has a great diyuk from rashi who lists among the items that require hidur mitzvah - לולב נאה, טלית נאה, ציצית נאה. What is a "talis na'eh"? Is there a kiyum of hidur for one to purchase expensive clothing? R' Moshe suggests that it is referring to what we call a talis - a garment meyuchad for tefillah. From this he proves that even a minhag that is for the sake of kiddush hashem, such as a tallis that one davens in, requires hidur mitzvah. Based on this he says that the din hidur mitzvah is not limited to chiyuvim, but also applies to things that one has no obligation in and is only there for kiddush hashem purposes.

2. It is not clear from our gemara how much one must spend on a positive mitzvah (see my sefer). Tosafos proves that one certainly does not have to spend all their money, and the gemara implies that one doesn't even have to spend a third of their assets. The Rama in hilchos succah assumes that the limit is a fifth, which he learns form tzedaka. However, Maharatz Chiyus quotes form Mor U'ketziah (ya'avetz)that if we force someone to fulfill a mitzvas aseh עד שתצא נפשו, one's money should not be more important than their physical pain, so one should be obligated to spend all their money. The maharatz chiyus himself only challenges this from the Ramban who limits the din of  כופין אותו עד שתצא נפשו to one who rebels against the entire mitzvah. However, most rishonim don't learn like the Ramban, so the question of the ya'avetz would return. How can it be that one does not need to spend all their money, but you beat him until he dies? To me it seems that the answer is obvious. The din of כופין אותו is not a punishment, rather a way to get him to do a mitzvah that he is required to do. But, when the mitzvah cost more than a fifth of his assets, he is not obligated in the mitzvah. The beating is not equivalent to spending, because the beating applies only when he is obligated and not performing, but the spending limit determines whether he is obligated altogether. See Tosafos Menachos 41a where there is an implication that כופין אותו עד שתצא נפשו is not only a push to do the mitzvah, but is actually a punishment.

Baba Kama 8b - Ta'anos of the buyer

In the gemara we see various claims that a buyer from a borrower can claim against the ba'al chov. I think it is worthwhile summarizing and explaining when each is applicable.

1. הנחתי לך מקום לגבות הימנו - The buyer can make this claim if he left behind some property in the hand of the borrower, to force the lender to collect from the borrower (even if it is ziburis). This does not apply when the second buyer claims to have left behind by the first buyer (Tosafos), since the entire claim is based on the premise that you cannot collect from משעובדים when there is בני חורין.

2. אי שתקת ושקליתו כדינייכו שקליתו ואי לא מהדרנא וכו - This claim is really a threat that allows the buyer to give beinunis to a nizuk by threatening to otherwise return the ziburis to the seller (who is the mazik) and force the nizuk to collect beinunis. This does not work to force a ba'al chov to collect ziburis because he can call the bluff and say "go return it". In other words, the threat only works when if carried out, would force the one who is collecting to take a lower grade than you are trying to make him collect now. Also, the concept of returning only is binding from this point forward, as if the seller would be purchasing a new property now. Therefore, it doesn't work by Yesomim who are not obligated to pay their father's debts from their own purchases (Tosafos). Rosh disagrees and holds that this threat can even force a ba'al chov to get beinunis because every threat that can be done, it is as if it were done and the other can never call his bluff.

3. אנא בהא תקנתא לא ניחא לי - A buyer who purchased ziburis, then beinunis, then idyis, one after the other, has the ability to force all people that are making claims on the sellers property to collect from ziburis, by forfeiting the takana d'rabonon of not collecting from m'shubadim when their are b'nei chorin.

4. מה מכר ראשון לשני כל זכות שתבא לידו - This claim empowers a second buyer to make any claim that the first buyer would have made. Therefore, if buyer #1 who purchased all the fields from the seller, went and sold idyis to buyer #2, then buyer #2 can force everyone to collect from the beinunis and ziburis left behind by buyer #1, since if buyer #1 would have retained the idyis, he would not have given it up (rather he would claim he doesn't want the takana d'rabonon).

5. להכי דייקי וזבני עידית וזיבורית ארעא דלא חזי לך - This claim applies to a case where buyer #1 sold to buyer #2 idyis and ziburis, and now has a b'al chov claiming the from #2. Buyer #2 cannot claim that he left behind beinunis for him to collect from (הנחתי לך מקום לגבות הימנו), because the ba'al chov can claim that he prefers to collect ziburis [Tosafos d.h. aval, and Rashi 7b d.h. v'iy, hold that a ba'al chov can choose from either beinunis or ziburis, and a nizuk can choose from idyis, beinunis and ziburis. The Rosh holds that the b'al chov only has a claim on beinunis, not on ziburis]. Nevertheless, buyer #2 can claim that he specifically bought types of fields that the ba'al chov either has no right to (idyis) or is not likely to collect from (ziburis), and force the ba'al chov to collect beinunis from buyer #1. 

מבעה זה אדם

לכבוד תחילת סדר נזיקין - מחשבה
בגמרא שבת ל"א עה"פ אמונת עתיך וכו' מבואר שישועות כנגד סדר ניזקין וכנגד זה שואלין את אדם לאחר מיתתו "ציפת לישועה". והביאור שכמו שבסדר ניזקין זוכין בדין רק אחר תביעה בב"ד כך הישועה באה רק לאלו שמצפין לישועה.

ועיין בגמרא סנהדרין צ"ז "א"ר שמואל בר נחמני אמר ר' יונתן תיפח עצמן של מחשבי קיצין שהיו אומרים כיון שהגיע את הקץ ולא בא שוב אינו בא אלא חכה לו שנאמר אם יתמהמה חכה לו שמא תאמר אנו מחכין והוא אינו מחכה ת"ל לכן יחכה ה' לחננכם ולכן ירום לרחמכם וכי מאחר שאנו מחכים והוא מחכה מי מעכב מדת הדין מעכבת (פירוש שנזכה לגאולה מכח הדין ולא כמתנה בעלמא)וכי מאחר שמדת הדין מעכבת אנו למה מחכין לקבל שכר (דהיינו שעצם הצפיה גורמת שהגאולה תהיה בבחינת שכר ולא מתנה)שנאמר אשרי כל חוכי לו" מבואר בגמרא שרק שייך גאולה כי אנו מצפין לה בבחינת ציון היא דורש אין לה מכלל דבעי דרישה, והבן.

ובגמרא ב"ק מבעה זה אדם כדכתיב אם תבעיון בעיון, ומבואר ברש"י שקאי על הגאולה שתבא אחר תביעה למחילה מאיתנו, וזהו עצם שם אדם שצריך לצפות לישועה. רמז לדבר שהמילוי של אד"ם הוי מתפל"ל באופן כזה - אל"ף דל"ת מ"מ.

וכן מצינו בבריאת האדם כדאיתא ברש"י עה"פ והאדם אין לעבוד את האדמה, שכל מעשה בראשית לא יצא על פני הארץ עד שנברא אדם שהתפלל לגשם והכיר בטובת הבריאה. ובעומק יש עוד לומר שהאדם נברא מתערובת של עפר, נשמה, ומים. והמים האלו הוי המים שהתפרדו מהמים העליונים, ומבואר במדרש שמובא ברבינו בחיי (ויקרא) שאלו המים נקראין מים בוכין על שרוצים שוב להתחבר למים עליונים עד שהקב"ה פייס דעתן ואמר להן שיעלו על המזבח לקרבנות ולניסוך המים. והמזבח הוא המקום שמחבר המעלה והמטה בבחינת מקום שנשקי שמיא וארעא אהדדי.

ועיין בסמ"ק שמקור לציפת לישועה הוי בדיברה הראשונה של אנכי ה' אלוקיך אשר הוצאתיך מארץ מצרים. והביאור דהגילוי של יציא"מ בשלימותו הוי שידעו כולם שאין עוד מלבדו, ועד כמה שחטאו בעגל ולא זכו אותו דור דעה להכנס לארץ, נמצא חסר בגילוי הזה, וא"כ האנכי מחייב שיבא היום ויתגלה כבוד שמים במילואו וידעו כל באי עולם שאין עוד מלבדו ומלבד קדושת התורה. ואכמ"ל.

נמצינו למדין שעיקר צורת אדם הוא זה שרוצה להתחבר לעליונים וזהו עומק התפילה שמונח בעצם יצירתו ורק על ידי כח זה של תביעה לחיבור שבעצם שייך אלינו מעיקר הדין נזכה לישועה.
ע"פ מה ששמעתי ממורי ורבי
ונזכה לביאת משיח צדקינו במהרה

Baba Kama 5a - Eidim Zom'min Paying from their BEST

Tosafos writes that we need a pasuk to teach that eidim zom'min pay "idyis" (from their best) even when they tried to make someone pay only ziburis. But, in a case where they try to make someone pay idyis, it is obvious that they must also pay idyis and not ziburis, because that is implicit in the requirement to pay "ka'asher za'mam" - like they intended to do. My question on Tosafos is that we should really need a pasuk requiring eidim zom'min to pay idyis, even when they were trying to be mechayev someone to pay idyis. We pasken that the chiyuv of "mei'tav" is to pay the idyis of the mazik - meaning, that if the damager has property that exceeds the standard "best" of the world, the mazik must pay from his idyis. In a case where the eidim zom'min have a quality that exceeds the standard "best", even when they try to make someone pay a standard "best" (which is their highest quality field), the din of ka'asher za'mam requires them to pay only the standard best, but the din of "meitav" should require them to pay their best. Why does Tosafos say that we don't need the pasuk of "meitav" for a case where the eidim zom'min are trying to be mechayev idyis, we need a pasuk even for that case when they have a quality that exceeds idyis?

Perhaps Tosafos holds that even the din of ka'asher za'mam is mechayev to pay from their own best. Meaning, the eidim zom'min must pay like they tried to do. Did they try to make someone pay quality A (which was his best) or did they make someone try to pay "their best" so the ka'asher zam'am would require the eidim zom'min to pay their best which would be quality A+. Perhaps the din ka'asher za'mam is like the latter, in that they tried to make someone else loose his best (quality A) and therefore would have to pay their best (quality A+), even without a special pasuk of mei'tav. That is why Tosafos says we only need a pasuk of mei'tav for a case where they try to make someone pay ziburis, but not for a case where they try to make someone pay idyis.