Baba Kama 87a - Blind People and Mitzvos

Tosafos (here, and kiddushin and rosh hashana) writes that even according to R' Yehuda that blind people are exempt from mitzvos, that is on a d'oraysa level, but m'drabonon they are chayev in mitzvos. Although women who are patur from time bound mitzvos are even patur on a d'rabonon level, Tosafos assumes that by a blind person the rabbonon would have definitely been mechayev them in mitzvos - סומא אי פטרת ליה מכל המצות אפילו מדרבנן, אם כן הוה ליה כמו נכרי שאין נוהג בתורת ישראל כלל

The argument is that a woman still has some mitzvos that she is chayev in, but if a blind person is exempt from mitzvos, there is no noticeable difference in behavior between him and a goy, so chazal would have been mechayev him in mitzvos. Clearly, this argument is only applicable to a blind person. Chazal never entertained being mechayev a deaf person or fool in mitzvos m'drabonon, because their exemption is attributed to a lack of da'as, whereas a blind person according to r' yehuda who is not exempt due to a lack of da'as rather a gezeiras hakasuv, it is logical for chazal to be mechayev them.

The Nodeh B'yehuda (tinyana, o.c. 112) quotes the pri megadim (psicha o.c. 29) who says that even according to r' yehuda a blind person is chayev m'doraysa in negative commandments, he is only exempt from mitzvah aseh. The Nodeh B'yehuda says that the language of Tosafos implies that he is like a goy and would be entirely exempt from everything. Although the pesukim imply that a blind person is completely exempt from everything, the diyuk from tosafos isn't so strong (mahartz chiyus also makes this diyuk). Ultimately the Nodah B'yehuda is medayek from the subtle language of Tosafos in various places. In Baba kama he says that the language of אין נוהג בתורת ישראל כלל implies an exemption even from lo ta'aseh. But the language of Tosafos in Rosh hashana 34a דאינו נוהג כישראל כלל can be understood like the pri megadim, because even if he abstains from prohibitions, he is still not being "noheig ki'yisrael" without any positive commandments.

The Nodah B'yehuda suggests that if a blind person is exempt even from lo ta'aseh he would not be able to make a bracha on mitzvos aseh that the rabbonon imposed on him since he is exempt from "lo tasur" (which according to the gemara in shabbos is the source for being able to make brachos on rabbinic mitzvos). But if he is obligated in lo ta'aseh, then after the rabbonon obligate him in positive mitzvos, he is able to make a bracha on them. However, one can make an argument that since other jews can make brachos, even one who is not obligated in a mitzvah and performs them can also make brachos. Tosafos in kiddushin 31a proves that women make a bracha on mitzvos they are exempt from, from the fact that a blind person makes brachos on positive mitzvos. What is the proof, perhaps a blind person can make a bracha since he is rabbinically obligated whereas a woman isn't even obligated rabbinically? The Nodeh B'yehuda explains that if we assume blind people are patur from lo ta'aseh, they too should not be able to make a bracha even if they are rabbinically obligated in the aseh. From the fact that they do proves that one can make a bracha even when the obligation doesn't apply to them, therefore women can also make a bracha.

Baba Kama 85b - Evaluating Nezek / Baba Kama 86b - Boshes

Nezek/sheves:

The gemara says that when nezek is evaluated we are already compensating for the fact that the person will not be able to us his hand for his old job, so the sheves will only consider the job that he is able to do with a missing hand and the fact that he is temporarily out of work and can't even do that. Therefore, Tosafos points out that if the injury is only temporary so that the nezek won't prevent him from returning to his old job, the sheves will be evaluated based on what he does. For example, a surgeon who will be out of work for a month will be compensated as a surgeon, not merely as a kishuin watchman. Basically, the nezek and/or sheves will always take into consideration the job that a person actively does. What happens in a situation where someone is in school studying to be a surgeon - do we evaluate his nezek as if he has 50 years of performing surgeries ahead of him or do we say that since now he is not a surgeon he is receives only minor compensation? Furthermore, if one is not even in school to study to be a surgeon but plans on pursuing a career in surgery and is then injured, can he claim that since he wants to be a surgeon he should receive compensation for the 50 years of surgery that he would have been performing? Presumably not. We always evaluate the chance that a person can become anything, and depending on the likelihood of him pursuing a career in a more profitable job, he would receive a higher level compensation.

Boshes:

The gemara ponders a fundamental question: Is Boshes a payment for the feeling of embarrassment, or for the degradation despite the person's feelings? If it is the feeling of embarrassment then one who is embarrassed in his sleep and then dies before awakening will not be entitled to boshes, but if it is the fact that he was degraded then his family would be entitled ot claim boshes. The gemara concludes (as tosafos points out) that it is the feeling of embarrassment and therefore a child will sometimes receive boshes, and sometimes not, depending on his cognitive abilities to feel embarrassed. Based on this, we can ask regarding a shoteh. The gemara says that a shoteh is not capable of feeling embarrassed. The gemara in Rosh Hashana discusses an עתים חלים עתים שוטה, some sort of bipolar disorder where he cycles on and off from "normal" to "abnormal". If one embarrassed a shoteh when he was a shoteh, but then the shoteh heals and is embarrassed about what happened, would the mevayesh be responsible? Do we say that since at the time that the act was done he was a shoteh, the mevayesh is exempt, or do we say that since the chiyuv of boshes is for the feeling of embarrassment the mevayesh is chayev? I would assume that the mevayesh would be chayev - any thoughts?

Baba Kama 85a - Reshus to Doctor to Heal

The gemara darshens that the permission is given to doctors to heal. Why do they need permission? What is it coming to exclude? Both Rashi and Tosafos say that it is coming to exclude the possibility that we view the illness as a gezeira from Hashem, and a human being who would try to heal would be undermining the gezeiras hamakom. However, Rashi implies that this would be a concern regardless of whether the injury was caused by human accident or by an illness beyond human control, whereas Tosafos says that this would only be a concern by illness that was not brought on by a human accident. Nonetheless, the Torah says that the doctor is given permission to try his best to heal. The Ramban in Torah HaAdam offers another approach, that a doctor could legitimately be concerned that he will mess up and cause the person to die sooner. The Torah is teaching that the doctor should not abstain, rather ther "permission" is given to medical experts to try, even though they may mess up. Both the approach of Rashi and Tosafos, and the approach of the Ramban, understand that the term "reshus" doesn't exclude a mitzvah, because it is surely a mitzvah. The term reshus is just to exclude one of the 2 possibilities above.

Based on the Ramban's approach that a doctor should take the risk, even though if he messes up he will cause the patient to die sooner, he asks a question on the gemara in sanhedrin 84b that says a person should not pop a pimple to remove the puss for one of his parents because he may cause a wound which would be a chiyuv misah. Just as one should not enter into a situation where they may inadvertently cause a wound to their parent, they should also not enter a situation where they may inadvertently kill someone? In the Ramban's first approach he explains that when it comes to removing splinters or popping a pimple, there is a definite advantage to someone else doing it rather than a child because for someone else it is not a chiyuv misah if they cause a wound, but for the child it is. However, something like blood letting where the injury itself is considered productive, it is not considered a chavala at all and is permitted even for a child. Regarding the concern that if too much blood is taken the patient may die, there is also no difference between a parent and a child because one way or the other the doctor will be entering into a safeik misah situation, but it has to be done. Based on this approach of the Ramban the only time a child must be makpid not to serve as a physician for his parent is when it is a minor procedure where there is a concern that he will make an chaburah that is not necessary for healing. But a major surgery would be permitted because regarding the chaburah, it is not considered a chaburah since it is the act of healing itself, and the concern of inadvertently killing the patient is the same whether it is a stranger or a child.

Baba Kama 82a - O'nah

ושמרו בני ישראל את השבת - ראשי תיבות ביאה

From the Rosh

See the pilpula charifta who explains that the pasuk in the gemara of erev shabbos to erev shabbos is by torah which would apply to talmidei chachamim, but since the takanas ezra of eating garlic is for everyone, the Rosh cited a more general remez to the idea of o'nah on erev shabbos. It seems that the limitation of "erev shabbos l'erev shabbos" is talmidei chachamim, but the advantage of erev shabbos which is encouraged by takanas ezra is for everyone.

Baba Kama 82a - Chafifa

Tosafos quotes Rabbeinu Tam that the takanas ezra of chafifa is only on the hair, not on the rest of the body. Really it is a machlokes rishonim (see my sefere mayim rabim 287), but m'ikar hadin we paskin like rabbeinu tam. One of the proofs of Rabbeinu Tam is the gemara in Nida שתהא אשה מדיחה בית קמטיה במים, from which Tosafos deduces that only the folds in her body need to be washed, not the rest of her body. However, the sidrei tahara (199:9 - quoted in my sefere 288) says that according to the maharik who says that when the gemara says בית קמטיה במים, it means water to the exclusion of other liquids, Tosafos has no proof that the rest of the body doesn't need to be washed - maybe it needs to be washed just that בית קמטיה is special in that we insist on water, but the rest of her body although it needs to be washed, it can be washed with other liquids.

Also, the Cheshek Shlomo (R' Shlomo Vilna) quotes the sefer hateruma who asks why the takana of chafifa was only for women and not for men who are toveling for taharos? The sefer Hateruma says based on a yerushalmi in pesachim that since men are frequently going to the mikva for taharos, we didn't require chafifa for them. The cheshek shlomo asks that the yerushalmi implies that only kohanim don't need chafifa, but non kohanim would. Cheshek shlomo suggests that perhaps the chatziztah that we are concerned about is only a mi'ut that one is makpid about, which women tend to be makpid about, not men. I don't understand why he doesn't simply say that men tend to have short hair whereas women tend to have long hair, so chafifa is more necessary for women (maybe the whole long hair for women or short hair for men is a modern style!). But, in truth it seems that the cheshek shlomo forgot a tosafos in chulin 10a who asks on a mishna which is pashtus speaking about a man going to the mikva (it is all b'lashon zachor), from chafifa. Clearly Tosafos implies that even men require chafifa. In fact, Tosafos at the very end quotes the same yerushalmi in pesachim as a source that only kohanim don't need chafifa ans suggests that the mishna was speaking about kohanin, which would imply that men who aren't kohanim would need chafifa for taharos.

Baba Kama 82b - Doing Business With Issur Ha'na'ah

The gemara says that there was a gezeiras Chamonaim not to raise pigs because of a ma'aseh that occurred when they placed a pig in the basket that was meant for korbanos. Tosafos asks, even without this special gezeira, there is an issur to do business with any non-kosher livestock. Rabbeinu Tam answers that the prohibition to do business with non-kosher livestock is only when they are meant for food, but the issur on pigs is for any purpose. It isn't clear from Tosafos whether the nature of this issur of doing sechorah with non-kosher animals is d'oraysa or d'rabonon. Although Tosafos quotes a pasuk, it may only be an esmachta. However, the nimukei yosef writes explicitly: דאילו לצורך אכילה מדאורייתא אסור לעשות סחורה בכל דבר טמא

From the fact that Tosasfos question is, "why do we need a special issur on pigs, there is a more general issur on all non-kosher animals", rather than asking "why do we need a gezeira chamonaim, pigs are already included in a more general issur d'oraysa", implies that they hold it is only d'rabonon [but tosafos in pesachim says it is d'oraysa].

This is a major discussion in the Taz (y.d. 117:1). Initially the Taz quotes the Rashba who says that it is assur to do business with non-kosher animals because of a gezeira that you may come to eat it, implying that it is d'rabonon. He asks that the gemara in Pesachim 23 implies that it is d'oraysa, and suggests that maybe this is similar to what the gemara says in chagiga 18a about work on chol hamoed; due to a contradiction in pesukim the chazal have the ability to interpret the d'oraysa and decide what is assur and what is mutar. They decided to be magdir the issur based on the concern that one may come to eat it. But, he then quotes the opinion of Terumas Hadeshen and other who state explicitly that it is only d'rabonon (from there he is compelled to say his famous chiddush that something which is explicit in the torah, chazal wouldn't be gozer on).

What is the nafka mina whether the issur is d'oraysa like the nimukei yosef says, or d'rabonon as the taz concludes? The Mishneh l'melech (cited by beis meir) says that a safeik issur would be assur if it would be d'oraysa but mutar if it is only d'rabonon. It would seem that another difference would be whether one can invest without being actively involved (such as owning significant shares in a non-kosher restaurant). If it would be assur d'oraysa, it would seem that the issur is to benefit from issur achila and would be assur, but if the concern was just that he may come to eat it, it should be mutar since he is not at all involved with it. But, R' Shlomo Eiger writes(quoting d'var shmuel) that even if the issur is only d'rabonon out of concern you may come to eat it, it is still assur to invest because chazal made a lo p'lug - no distinction when they created the issur.

The Shach (1) raises a question whether or not it would be permitted to do business with livestock that is meant for eating, but the jew is not selling it for food. For example, if one would sell shellfish like lobster that is normally eaten for the purpose of making soap. Tosafos (by us) says that it is permitted, but the rashbah who says the concern is that one may come to eat it, implies that it is assur since even if his purpose is not for food he may come to eat it. The Shach (2) also suggests that the nature of this prohibition may be a chashad/ma'aris ayin type issur, in which case it would be mutar if it is not for the purpose of food.

The Mateh Yehonasan (R' Yehonasan Eibischitz) has a brilliant approach, combining the rashba of the taz and the rashba of the shach, to prove that the rashba holds the issur is only d'rabonon. Tosafos is trying to explain why we need a special gezeira on not raising pigs, which compels them to say that if it is being sold for the purpose of food it is assur due to sechorah, but if it is being sold for a non-food purpose, even if it is usually eaten, it would be mutar - except for pigs that they made a special gezeira on. Now, according to the rashba (as understood by shach) that if it is usually eaten it is always assur, then pigs which are certainly eaten should have been assur anyway and shouldn't need a special gezeira - so Tosafos question would return in full force. This would be a problem if we assume the issur of sechorah is d'oraysa as the nimukei yosef says. But we can explain the opinion of the rashba (as understood by shach), if he holds that the issur sechorah is only assur d'rabonon (as the taz understands from the rashba). It is very possible that the gezeira on pigs which was at the time of the chashmonaim predated the more general gezeira against doing business, which would circumvent Tosafos question. Based on this pilpul the Rashba must hold that the issur sechorah is only d'rabonon, not d'oraysa (as the Taz understood in the end).

Baba Kama 80 - Seudas Mitzvah

The gemara tells about Rav, Shmuel, and R' Asi all coming to a שבוע הבן or a ישוע הבן. Rashi comments that the שבוע הבן refers to a bris milah, whereas the ישוע הבן refers to a "party that was done for pidyon haben". The maharsha (agados) points out that from rashi we find a source for making a party for pidyon haben, but is not a source for making a party for a bris milah. The maharsha seems to understand that the requirement to make a party for pidyon haben is better sourced than the requirement to make one for bris milah.

However, the Maharshal (yam shel shlomo 37), in his famous discussion about seudas mitzvah asks a question from the gemara in chulin 95b was not to eat at any "סעודת הרשות". How then can Rav join in the seudah? The maharshal explains the question - בשלמא מילה, הסעודה גופא היא שמחת מצוה כמו סעודות חתן שנאמר "שש אנכי על אמרתך" אבל פדיון הבן ליכא סעודת מצוה להדיא. The maharshal clearly understands that whether it was milah or pidyon haben, Rav was joining and eating at the party. He assumes that the requirement to have a seudah for milah is more basic than having one at pidyon haben. Since the seudah of pidyon haben is only a "reshus", how could Rav join and eat ?(Rashi in chulin seems to avoid the question by saying that the seudah was a בת ת"ח לע"ה which is worse than just a reshus).

From this the maharshal is mechadesh a major yesod that any seudah whos purpose is to give praise to Hashem and either publicize a mitzvah (such as pidyon haben) or a miracle (such as the birth of a child which is Rabbeinu Tam's explanation of ישוע הבן i.e. a shalom zachor) qualifies as a seduas mitzvah.

The source for a siyum on a masechta of gemara qualifying as a seudas mitzvah, the maharshal says is from a gemara in shabbos 118b that Abbaye would make a party when he would see a talmid chacham finish a masechet (the maharshal then launches into a suggestion to make the bracha of השמחה במעונו at a siyum, which he retracted from after he felt that it was the reason that a siyum he once attended was totally ruined). At the end of the perek, the maharshal continues to show from this gemara in shabbos that even those who aren't actually finishing the masechet should celebrate with the one completing the masechet, just as we find that abbaye would make the seudah for his students even when he didn't actually learn it with them. The Maharshal also points out that the gemara in Ta'anis 30b cites that one of the reasons for establishing a yom tov on the 15 of Av was because it was the day that they completed the mitzvah of cutting the wood for the mizbeiach. Just as there is an inyan to make a seudah and yom tov upon the completion fo a mitzvah, so too with the completion of a masechet because "השלמת הספר אין לך מצוה גדולה מזו". As suprising as it may seem, the seudah at the siyum masechet seems to be better sourced as a seudas mitzvah, more than bris milah (which the maharsha questions) and pidyon haben (which the maharshal initially questioned).

Baba Kama 79b - Difference between a ganav and gazlan

The gemara says that the penalty of paying keifel and daled v'hei, is only for a ganev who hides his actions from people, not for a gazlan who steals in public. Why? Because a ganev expresses a special chutzpah by showing that he is afraid of people but not G-d - כביכול עשה עין של מטה כאילו אינה רואה ואוזן של מטה כאילו אנה שומעת. But a gazlan at least equates the kavod of Hashem with the kavod of people, so there is less chutzpah in his actions. Many years ago (14 Teves 5761), I had a question based on the halacha found in Hilchos Shechita (siman 2) - One who violates Shabbos in public is considered a mumar for the entire torah tantamount to one who worships avoda zara, and his shechita is passul just at the shechita of a goy. But, one who violates shabbos in private, although he is not trusted, so long as there are mashgichim who determine that he shechted properly, his shechita is kasher. Based on the gemara's logic by ganav and gazlan, we should consider a mechalel shabbos in private to be worse than a mechalel shabbos in public?

R' Moshe (Igros O.C. 1:33) raises this question and based on it is mechadesh an important yesod. It is not clear why a mechalel shabbos in public is so severe, but R' Moshe suggests that one who violates shabbos in public is not just a מומר לתאבון, but the fact that he is doing it in public indicates that he is a מומר להכעיס. Although the concept of the gemara is true, that one who steals in private and hides from G-d is worse, that is when both the act in private and the act in public are for the sake of filling his desires - לתאבון. But when one violates shabbos in public he enters a new realm of being a מחלל שבת להכעיס, which is certainly worse than merely being motivated by desires. Even if deep down he is only doing it to satisfy his desires, דברים שבלב אינם דברים and the act is an act of להכעיס. Based on this he suggests that this only applies at a time when people understand the severity of shabbos so that when one violates shabbos publicly, it is an indication that he has a complete disregard for the shabbos, but nowadays where people no longer take shabbos seriously, and their desires would bring them to chilul shabbos in public just as fast as it would bring them to chilul shabbos in private, even one who is mechalel shabbos in public will not have the status of a goy (therefore his shechita is kasher and he can be counted for a minyan).

I had an alternate approach to answer this question. Stealing is an aveira בין אדם לחבירו that every society recognizes as wrong and destructive. It is part of human nature to consider theft to be bad, and is inherent in human nature to try and hide these actions from others. When one hides these actions from people because he is worried that people will think less of him, or may catch him to punish him, he is outwardly displaying a fear for people that exceeds his fear of G-d. Since it is part of human nature to hide acts of theft, we assume his intention is to hide it from other people. However, Shabbos is בין אדם למקום, and therefore the violation of shabbos is not considered bad by human nature. When one hides his chilul shabbos from others, we assume that it is not because he is afraid of people, because people don't view chilul shabbos as inherently bad. So why would he hide his actions from people? We assume his attempt to hide his chilul shabbos is out of respect for Hashem, rather than trying to hide from Hashem. But when he is mechalel shabbos in public, we consider it to be a lack of respect, violating shabbos in the open showing no regard for it at all.

Baba Kama 75a - Mo'deh B'knas

There are two dinim in admitting to a k'nas: 1. Admitting is not regarded as a hoda'as ba'al din to be mechayev himself to pay k'nas because only eidim can force one to pay k'nas. 2. The hoda'ah is not just an inability to be mechayev, it is actually an exemption, therefore even if eidim show up later, he would not be chayev. The machlokes in the gemara about מודה בקנס ואח"כ באו עדים is a fundamental argument whether the concept of hoda'ah is that it is not powerful enough to force the payment of k'nas, but is not an exemption, or do we view it even as an exemption so that even when eidim come after to be mechayev him, he remains exempt.

R' Hamnuna (who is supported by tanaim) makes a peshara. If the hoda'ah is not mechayev him to pay even a principal payment, we assume that the entire goal of his admission is to exempt himself. That type of hoda'ah does not have the status of "hoda'ah" to be an exemption, it is just not enough to be mechayev him. Therefore, he is patur until eidim show up, but at that point he is chayev. However, when he is modeh in a way that he is mechayev himself to pay the principal through his admission, we regard that hoda'ah as a real hoda'ah that serves as an exemption to patur him even when eidim come later. Rashi (d.h. she'harei) makes it very clear that hoda'ah is only an exemption when it is done with the right intention, namely to return the money that was damaged or taken. Why does his intention make a difference? It seems that the concept behind k'nas is to prevent the crime. Therefore, when one steals and is mo'deh to the principal he is regretting the crime he committed and doesn't need any "inspiration" or push to avoid it in the future. But, if one is merely admitting because he wants to exempt himself from paying, which we assume to be the case when the admitting isn't mechayev him to pay a principal amount, he still needs the penalty as a preventative measure for the future, and therefore is going to be chayev when eidim come later.

Baba Kama 74b - R' Gamliel Freeing Tevi (his slave)

The gemara says that when R' Gamliel blinded the eye of Tevi his slave, he was "very happy". Rashi explains that he was happy because he really wanted to set him free, but was unable to do so since freeing a slave is a violation of an aseh, but since he blinded him, he would be free. [The ya'avetz raises a technical problem - R' Gamliel certainly didn't blind him intentionally since that would be assur, rather it was done accidentally (a proof to this is that he didn't do it until now), but the gemara says on 26b that he would only go free if he "intended to destroy him".]

It seems that Rashi would disagree with the Ran (gittin 20b b'dafei ha'rif) who says that freeing a slave follows the same rules as "lo sei'chanem", that it is only prohibited if done for the purpose of the eved, but not if done for the need of the master. Based on the Ran it should have been permitted for R' Gamliel to free his slave since it brings joy to himself and is not for the benefit of the slave. Can we deduce from this rashi that he disagrees with the Ran and maintains that it is assur even for the benefit of the master? It seems to me that Rashi here is not necessarily against the Ran (meaning that even the Ran would hold that R' Gamliel wouldn't be allowed to free his slave for the purpose of giving him joy). The joy that R' Gamliel had was not a selfish joy, rather it is because he loved tevi so much that he wanted to set him free for his own sake. Even the Ran would agree that if the only benefit to the master is that he is happy to benefit the slave, would not qualify as a selfish benefit to permit the freeing of a slave.

Baba Kama 74b - DNA evidence in Halacha

I previously posted in Gittin, that it would seem that DNA would qualify as a siman muvhak in halacha - http://hearos.blogspot.com/search?q=dna

Subsequently, I found in a sefer called "atzei besamim" (16) from r' mendel senderovic (Milwaukee), who has a very nice discussion about the admissibility of DNA evidence in beis din. The issue begins with the poskim not willing to allow blood testing to be sumbitted to determine paternity in a beis din. He mentions that the tzitz eliezer (13:104) strongly rejects the use of blood testing for paternity, but the proofs that he cites are very weak (bordering on purim torah). The tzitz eliezer also comments that we can't admit evidence that relies on scientific discoveries, since these things are often just theories that are disproved. However, regarding DNA evidence the margin of error is so slim, and there is hardly room for these types of errors, and is as good as a picture. R' Senderovic suggests that perhaps the tzitz eliezer was writing this at a time when this type of testing wasn't as clear, but perhaps he would feel differently nowadays. In conclusion he agrees with the approach of R' Zalman Nechemia Goldberg and R' Elyashiv who consider DNA evidence to be a siman muvhak to be matir an aguna and determine the paternity of a child.

What about a situation which requires actual "eidus", not just a siman muvhak - Can DNA evidence be considered like "eidim" or perhaps even better than "eidim"? Although at first glance, it wouldn't seem at all plausible, there is a proof from our gemara that eidus can sometimes be achieved without eidim. The gemara says that if a group of eidim testify that reuven was killed, even if 100 witnesses would contradict them, the concept of תרי כמאה would not allow us to give malkus to the original group for lying. Yet, בבא הרוג ברגליו, when the victim shows up in beis din, we can determine conclusively that he wasn't killed and give malkus to the original group for lying in court. The maharatz chiyus points out that even if reuven shows up, the original group can claim that it isn't actually him, so that 1000 people claiming that it is reueven, should not help to convince us that the original group deserves malkus - so why does the gemara say that they get malkus? The maharatz chiyus concludes from here based on tosafos in yevamos 87a - דבדבר הידוע לכל העולם לא שייך תרי כמאה, וכיון שהאיש הזה ניכר לכל העולם לא מועיל אמירת העדים שאמרו שנהרג, ודבר זה אין נופל בגדר עדות כמו שלא יועיל אמירת שני עדים על עץ שהוא אבן והכחשת דבר שניכר בחוש, ונכון

Based on this approach, factual evidence such as DNA which is far more conclusive that circumstantial evidence (which is not admissible), with a margin of error close to one in a trillion, should be even stronger than בא הרוג ברגליו - they would both not account for an identical twin (i think). Being that DNA is scientifically considered "fact" as much as בא הרוג ברגליו is considered fact, it should be even stronger than eidim to work not only in aguna cases but even in cases where "eidim" would be necessary.

כמובן, i am only pointing this out as something to think about - ולא למעשה

Baba Kama 73a - Which group of witnesses to believe?

In a situation where 2 groups of witnesses contradict one another about the event, it is classified as עדות מוכחשת where we have no reason to believe one any more than the other. Under these circumstances the gemara in baba basra has a discussion about what to do - it is a safeik so follow chazaka, but one thing is clear, we don't believe the later group any more than the first. However, if the second group doesn't testify about the event, rather about the validity of the first 2 as being witnesses, such as testifying that they are thieves, the second group is completely believed to overthrow the testimony of the first group. This is not considered a chiddush, since everything that the first group is saying is true, just that by believing the second group that the first are thieves, we automatically don't accept their testimony.

Rava (in the first lashon) holds that eid zomeim is a chiddush and therefore only becomes passul from the time of the hazama, and not retroactively from the time of the testimony. Abaye would presumably agree with rava that eid zomeim is a chiddush, just that it makes no sense to passul them from the time of the hazama, therefore we passul them retroactively from the time of their testimony. It seems that the concept of "chiddush" by eid zomeim, is that rather than considering it to be a case of עדות מוכחשת where the second group are merely disagreeing about the event, we consider it as if the second group are actually testifying about the character of the first group, invalidating them as witnesses. (See Tosafos who explains that the chiddush of eidim zomimin, more that contradictory testimony is either that the second group is entirely believed, or that the first group is definitely passul not just a safeik. I am assuming like tosafos second approach that the chiddush of eidim zomimin is to view the testimony to be on the character of the witnesses, not on the event, in which case it is not a chiddush to directly passul the first or be machshir the second, rather it is a chiddush in classification). 

Why is eidim zomimin somewhere in between? In essence the second group are not making a character judgement, they are only contradicting the facts - "these 2 could not have possibly witnessed what they claim to have witnesses since they were with us elsewhere". Had it not been for the chiddush Hatorah that we believe the second group, we would view it as if they just contradict the first group about the events, where we have a real safeik who to believe. We would interpret their intent to simply be "the event was not witnesses by these 2 eidim because they were with us elsewhere". But the torah is mechadesh that we are not to regard the hazama as just undermining the plausibility of the event, rather they are giving a character testimony similar to claiming that the first group were thieves. Why? Because when testifying about an event it is sometimes possible to misinterpret the events, or not have a clear picture as to what actually happened, so we give each group the benefit of the doubt. But, by eidim zomimin the second group is claiming that it was clearly premeditated lying that is taking place, not an innocent mistake. People who would fabricate a story when they were in an entirely different location, have a fatal character flaw just as gazlanim do, and therefore they are not admissible as witnesses in any court.

Baba Kama 71a - Shliach l'dvar aveira for tevicha/mechira

The only case that the gemara is able to find where one can slaughter the stolen animal on shabbos and pay 4 or 5 is when the thief himself doesn't do the shechita, rather his agent does it for him. Because had the thief done it himself we would say "kim lei b'draba minei" and would not be chayev to pay. The gemara questions how we can have a situation where the shliach does an aviera, and the sender who is the thief is chayev as if he did it himself - אין שליח לדבר עבירה. The gemara says that we compare tevicha to mechira, just as mechira requires the assistance of someone else, so too tevicha can be achieved through the assistance of someone else. The gemara seems to be saying that this is actually an exception to the rule, and we say that for tevicha - יש שליח לדבר עבירה, as if the thief himself did the tevicha.

There is a machlokes rashi and tosafos in kiddushin 42b ( i think that i blogged about it before), whether in a situation where the shli'ach is unaware that it is an aveira, whether we say יש שליח לדבר עבירה. Tosafos opinion is that there would be shlichus in that case to make the sender liable. Here too, Tosafos 79a (d.h. nasnu) points out that rather than saying tevicha is an exception to the rule of אין שליח לדבר עבירה, it could have said that the case is where the shli'ach is unaware that it is stolen, so that the sender (thief) would be liable to pay 4 or 5. According to Rashi, where the sender is never liable regardless of whether the shliach knew about it being stolen, it works out that we are forced to say that this case is an exception to the rule.

Why couldn't the gemara say that even though אין שליח לדבר עבירה (either because the shliach was aware that it was stolen, or like rashi that it doesn't matter whether he knew or not), the thief would still be chayev 4 or 5. The concept of אין שליח לדבר עבירה says that the aveira is violated by the shliach rather than by the sender, but nonetheless the shlichus is still in effect and it is as if the sender slaughtered the animal. From the fact that the gemara understands that this must be an exception to the rule of אין שליח לדבר עבירה, the gemara implies that when we say אין שליח לדבר עבירה the entire shlichus is void. Meaning, aside from not considering the averia to be violated by the sender, we break the shlichus entirely as if he were never sent by the sender. This issue is really dependent on 2 answers of Tosafos in Baba Metzia 10b, whether the shlichus is valid (implication of first answer) or void (second answer) in a case of an aveira. This gemara seems to imply that the shlichus is void which is a proof to Tosafos second answer.

Baba Kama 68a - Tevicha and Mechira

The gemara says that there is a machlokes r' nachman and r' sheishes whether the violation of "stealing and selling" applies only when the sale is actually binding, or is one chayev to pay 4 and 5 even when the sale is not actually binding (such as prior to yi'ush). R' Nachman holds that even if the sale isn't actually binding one is chayev just for the action of attempting to sell. R' Sheishes holds that one is only chayev if the sale is actually binding, just as tevicha is actually binding.

The rashash discusses how this fits with the discussion in temurah about כל מידי דעביד רחמנא לא תעביד, אי עביד לא מהני - where abaya and rava argue whether by the torah placing an issur, it is preventing the action from being binding. For example, the torah says that one cannot divorce after motzi shem ra - they argue whether the divorce will be effective. The rashash suggests that in our gemara all would agree with rava that אי עביד לא מהני and one can be punished just for the action, even though it is not binding. His rationale seems to be that according to r' nachman you are getting malkus just for going through the motions of selling, even though it is not binding. Even R' sheishes only disagrees that the sale must be binding because we learn it from tevicha, but in concept he will agree that one can get malkus for the action. This seems to be like rava who says that one can get malkus even though it isn't binding, not like abaya who says that one can get NOT get malkus unless the act is effective.

The Chavos Da'as (y.d. 1:11) holds that the rationale of rava that אי עביד לא מהני is that in order to avoid the violation the torah prevents the action from being chal. Meaning, only when there is a violation that must be avoided, does the torah prevent the "chalos" of the issur. Basically, it is a tool that the torah creates to prevent a situation that it doesn't want. This would really only apply to a situation where there is a l'av for the violation, not just a penalty for doing an action. In short, according to the chavos da'as (and i believe r' akiva eiger says the same) that rava's concept only applies to a case where there is a violation, it is not applicable over here. Therefore, we must say that the requirement to sell an object that still belongs to the original owner is a direct contradiction to the concept of the sale being binding. This paradox forces r' nachman to say that you are chayev for the action of trying to sell, even though it isn't binding. Based on this, our gemara can work out both according to abaya and rava in temura because it has not connection at all.

Baba Kama 67a - Mitzvah haba'ah b'aveira

There is a major machlokes that tosafos quotes between rabbeinu tam and the r"i regarding the concept of מצוה הבאה בעבירה. Tosafos introduces this by asking a question on u'lah who learns from a pasuk that a korban that is gazul is pasul, from which u'lah derives that yi'ush isn't ko'neh, yet elsewhere u'lah holds that yi'ush is koneh. Rabbeinu Tam holds that yi'ush is ko'neh, but it will not be fit for hakrava in the beis hamikdash due to the problem of מצוה הבאה בעבירה. The R"I disagrees and maintains that if yi'ush qualifies as a kinyan in and of itself, there is no problem of מצוה הבאה בעבירה, because the problem of מצוה הבאה בעבירה only applies when the kinyan is connected to the mitzvah, but if one acquired the object prior to the performance of the mitzvah, it is not a problem of מצוה הבאה בעבירה.

The R"I proves his point that if the acquisition would proceed the mitzvah there would not be a problem of מצוה הבאה בעבירה from the gemara in succah 30a that suggests that a shinuy ma'aseh or shinuy ha'shem to acquire the hadas would circumvent the problem of מצוה הבאה בעבירה. How would Rabbeinu Tam deal with this, since according to him there should be a problem of מצוה הבאה בעבירה even if he acquires it prior to the fulfillment of the mitzvah? The steipler (succah 21) suggests that a shinuy is not merely a kinyan, but rather it is viewed as an entirely new object - פנים חדשות באו לכאן. Therefore, if one was to be ko'neh only through yi'ush (if yi'ush alone worked), that would be nothing more than a kinyan where rabbeinu tam will maintain that there is a problem of מצוה הבאה בעבירה. But when he is koneh in conjunction with a shinuy, it is viewed as an entirely new object and therefore not considered a מצוה הבאה בעבירה. Based on this approach, the halacha in shulchan aruch (649:1) that if one stole a lulav and made a shinuy in it, he can be yotzei his mitzvah, would be even according to rabbeinu tam.

Baba Kama 66b - Rav Yosef Becoming Rosh Yeshiva: Shinuy HaShem

I had a cute thought b'derech d'rush [but i am not sure how true it really is]:

The gemara says that for 22 years Rabba (who held that yi'ush is koneh) asked Rav Yosef (who held yi'ush isn't ko'neh) a question from the mishnah in keilim. Finally when Rav Yosef was promoted to the Rosh Yeshiva he was able to answer the question. His answer was that the hides that were transformed into a table to eat on, was acquired by the ganve/gazlan, not through yi'ush alone, but rather a combination of yi'ush and shinuy hashem [change in status]. It seems a bit strange that only after Rav Yosef was promoted to rosh yeshiva was he able to answer this question.

The Ya'avetz explains that one who is zocheh from shamayim to be promoted to greatness will have hidden depths of torah revealed to him because he studied li'shma.

It seems that there is a definite connection between Rav Yosef being promoted to rosh yeshiva, and the answer that he came up with. Prior to becoming rosh yeshiva there was less expected of him. He had less responsibility to answer the questions that were asked of him, and less siyata d'shmaya in coming up with an answer. By becoming rosh yeshiva which was nothing more than a shinuy Ha'Shem, it was as if he became a different person with completely new responsibilities. When he realized this, he was zocheh to realize that a shinuy ha'shem, although nothing more than a change in title, can have a profound impact. He understood that a shinuy ha'shem qualifies as a shinuy, and in conjunction with yi'ush will work to acquire the object.

Baba Kama 66a - Yi'ush

Rabba proves that the concept of shinuy being ko'neh for a ganev allowing him to keep the item and return only the value is d'oraysa, but he has a safeik about yi'ush whether it is ko'neh m'doraysa or only d'rabonon. The basis for his question is that we don't find the concept of yi'ush in the torah in the context of theft, only in the context of aveida. Rashi explains that in regard to an aveida, a lost object, the gemara in baba metzia 22b learns out from a pasuk that if it is "lost from everyone", which leads to the yi'ush of the owner, there is no mitzvah to return it. The question of the gemara is whether we learn geneiva from aveida. Now, there seems to be 2 distinctions between the yi'ush by aveida and the yi'ush by geneiva: 1. Yi'ush by aveida is before the finder picks it up, whereas yi'ush by geneiva is after the thief already has it in his hand. 2. Yi'suh by aveida allows the finder to keep it without having to return anything, but yi'ush by geneiva would only allow the thief to keep the object but he would still have to return the value.

On the side of the question that yi'ush is NOT d'oraysa by geneiva, the rationale is that it comes to his hand b'issur, meaning that the thief has it prior to yi'ush which doesn't work even by aveida - so what is the rationale that we do learn yi'ush by geneiva from aveida?

Rashi says that if yi'ush works by aveida prior to the finder picking it up to allow the finder to keep it entirely, it should work by geneiva even though it is already in the hands of the thief at least to allow him to only return the value and not the object itself. Tosafos concurs with this, and explains that yi'ush would in fact work by aveida even after the finder picks it up to allow him to keep the object itself and only return it's value, just as we are suggesting by geneiva. From Rashi and Tosafos it seems that the gemara takes for granted that yi'ush works by aveida even after he picks it up to allow him to keep the object and only return money, the only question is whether we apply this to geneiva as well since it "came to his hand b'issur", meaning that he stole it rather than just found it. But the Rashba seems to understand that the fundamental safeik of the gemara is whether by aveida itself, the yi'ush helps after it has already come into his hands to allow him to keep the object and only return the value. The Ketzos HaChoshen (361:2) explains that the safeik of the gemara is based on the understanding why yi'ush doesn't work by aveida after the finder already picks it up. Is it because the finder becomes a shomer on it by picking it up, which would not apply by geneiva and therefore work even after he already has it in his hand, or is it because anytime the object comes to his hand "b'issur" - meaning before yi'ush, he has no ability to acquire it through yi'ush both by aveida and by geneiva.

What is the rationale behind the idea of rashi and tosafos that yi'ush works before it comes into the persons hands to allow him to keep it without returning anything, yet yi'ush after it comes into his hands only works for the object but not for the value (unlike hefker as tosafos points out which would work completely even if the object came into his hand b'issur)? When one picks up an aveida or steals an object prior to yi'ush, that act itself is an act of stealing since the object still has an owner who expects to get it back. The act of picking it up is mechayev the person to pay back the value of the object. Therefore, Hefker which is a form of relinquishing ownership would relinquish all claims that the owner has on the finder or thief  and allow him to keep the object without returning anything, but yi'ush which is only a realization that he will not be getting it back will not exempt the finder or thief from his obligations of reimbursement that he accepted upon picking it up, just allows the finder to not return the actual object. However, if yi'ush occurs before picking up the object, since the object doesn't have an "owner" associated with it, there are no obligations at all on the finder by picking up the object so he doesn't have to return anything. 

Baba Kama 65a - Now it gets hard....

Rav says that the keren is evaluated based on the value at the time of geneiva, but the k'nas is evaluated based on the time of the ruling of beis din. The gemara explains that in a situation where the object either appreciates in value or depreciates in value to do the investment or mistreatment of the ganev, all would agree that the ganev reimburses based on the value at the time he stole it because the owner should not be entitled to appreciation due to the ganev's investment, nor should he be penalized by depreciation due to the ganev's destruction.

The gemara explains that Rav's statment applies only to a case of a price drop. Being that we are speaking about a case where he physically destroys the animal (such as shechita for which he pays 4 or 5), had the price increased from the time of the geneiva, he should pay even the keren based on the value at the time he slaughtered the animal. Rav's distinction is limited to a case where the price drops between the geneiva and ha'amada b'din. When it was originally worth more and is now worth less due to a price drop, the keren is evaluated based on the time of the damage but the k'nas is evaluted based on ha'amada b'din. Even this is later qualified by the gemara 66a - Rashi learns that when he pays back the same type of item that he stole i.e. sheep, he pays keren and k'nas based on the time that he stole, but when he pays cash that is where rav said that the k'nas is paid based on ha'amada b'din. R"I (in tosafos) learns that any improvement or deterioration of the animal whether or not it was caused by him is paid based on the price at the time of the sale both the keren and the k'nas. But for any change in price the k'nas is evaluated based on the market value at the ha'amada b'din [but the keren is still evaluated based on the time of geneiva].

The p'nei yehoshua explains that the concept of k'nas being paid based on the price of ha'amda b'din is very logical and should be assumed, since the k'nas is only realized at the time that the beis din rules on it. Since until that point the ganev had the ablity to exempt himself by admitting, it makes sense to say that he pays based on the ha'amada b'din price. However, Tosafos (d.h. gufa) holds that the chiddush of rav that we need a special pasuk to teach, אחייה לקרן כעין שגנב, is not for the keren, but rather for the implication that k'nas is paid based on ha'amada b'din. The question is, given the logic of the pnei yehoshua, this should also be obvious and not require a special pasuk? Tosafos seems to go lishatasam (d.h. alma) that the k'nas should logically follow the keren, so that even if the k'nas should logically be evaluated based on ha'amada b'din, it should follow the keren to be evaluated based on the time of geneiva. We therefore require a gezeiras hakasuv that ONLY keren pays based on the value at the time of geneiva, but k'nas pays based on the value at the time of ha'amada b'din (which is a logical distinction, although without a pasuk we would have tied the k'nas to the keren).

Rashi 65b d.h. d'kfeila, seems to argue on Tosafos and holds that according to rav we do require a pasuk to teach the chiddush of keren being paid based on the value at the time of the geneiva. Rashi implies that both the aspect of keren being evaluated based on the time of geneiva, and the aspect of k'nas being evaluated based on the value at the time of ha'amada b'din are part of the chiddush of Rav.

Baba Kama 65a - Stealing with your chatzer

The gemara says that we need the pasuk of "אם המצא" to teach that one need not steal with his hands to be chayev keifel, even if he steals with his chatzer he would also be chayev keifel. The Ketzos HaChoshen (348:2) quotes rashi in Baba Metziah 10b that the case of stealing with one's chatzer is that the animal enters his chatzer and he locks the door on it. Why does rashi not say the simplest case, where the animal enters his chatzer and he has machshava to acquire the animal through a kinyan chatzer. The Ketzos points out that Rashi seems to hold that a thought alone does not qualify as "stealing", therefore he must do an action of closing the door on the animal. Although for acquiring a lost object with a chatzeir, all that it takes is machshava alone, but gezeila cannot be done with machshava, it requires an action. Tosafos also seems to hold like rashi that machshava alone is insufficient. Tosafos (d.h. ein) says that the case is where he hits the animal with a stick forcing it to leave the chatzeir of the ba'al habayis and enter the chatzeir of the ganev. However, Tosafos doesn't simply say like rashi that the animal enters the chatzeir of the ganev on his own and all the ganev does is close the door on it. Tosafos implies that it is necessary to do an act of forcing the animal out of reshus chaveiro and into the reshus of the ganev, such as hitting it with a stick. Tosafos seems to understand that if the animal would enter the chatzeir of the ganev on his own, he would not be considered a ganev by simply locking the gate with the animal inside with the intent of stealing it. Based on this, Tosafos cannot explain that the chiddush of chatzeir is simply that one need not do an action with his hands to be considered a ganev, because Tosafos holds that even stealing with one's chatzeir requires an action b'yadayim. Therefore Tosafos is compelled to say that the chiddush of chatzeir is that it can acquire even when the acquisition itself is an issur such as this case where he is stealing.

Baba Kama 61a - M'leches Machsheves

Generally, the concept of מלאכת מחשבת which we learn out from the mishkan as being necessary to be chayev on shabbos, limits the accountability for violating shabbos. For example, the reason that we exempt a מלאכה שאין צריכה לגופה and mekalkel are all based on the fact that they are not considered mileches machsheves, therefore one is not chayev for them on shabbos (to the exclusion of דבר שאינו מתכוין אליבא דר"ש which is an exemption in kol hatorah kula as we see from many gemaras). However, in our gemara the concept of mileches machsheves is used to explain why one would be chayev for winnowing on shabbos, even though the wind is necessary to assist in the melacha which for damages would not make him liable. How can the rule of מלאכת מחשבת be used as an exception sometimes to be machmir and sometimes to be more meikil that kol hatorah kula?

The Even Ha'Ozer (O.C. 328) discusses using a leach to draw blood on shabbos, whether it is a Torah violation of making a chabura, or since the actual chaburah is being done by the leech itself, the person is not chayev. Although he rejects the proof of the Magen Avrohom, he cites his own proof that one would be chayev. He introduces this with a question: We find that one is allowed to put his animal on the grass on shabbos, knowing that the animal will eat. Yet, when one is ma'amid his animal on the produce of someone else, he is considered a mazik and chayev for damages. If in the context of damages we consider it an action not just a grama, he should also be chayev on shabbos? He rejects the notion that one is more likely to be chayev for damages, based on our gemara where we clearly see that one is more likely to be chayev for shabbos than for damages? He concludes that shabbos is not more kal or chamur than nezikin, rather they are dependent on different factors. For nezikin the primary issue is whether the damage will be definite - so long as the damage will definitely occur, whether it is with his intent or not, it is considered an act of damage not just a grama (therefore one is chayev for standing an animal on his friends property to eat). But in the context of shabbos, מלאכת מחשבת אסרה תורה, meaning that the primary factor is that he intended to violate shabbos, and succeeded in shabbos being violated, therefore even if the result is definite he will be exempt so long as that was not his intent. But, when that is his intent such as in our gemara where he intends to winnow, he would be chayev even though the wind assisted him. The same would apply to a leech, since his intent is that it make a wound to draw out blood.

Based on this, מלאכת מחשבת doesn't make shabbos stricter or more lenient, just different. On shabbos the entire focus is whether his intent was to result in the melacha, therefore even if he required so assistance from the wind he would be chayev. But when there is a lack of intent such as מלאכה שא"צ לגופה he is patur.

Baba Kama 58a - Dina D'malchusa

In R' Asher Weiss's weekly shiur on parshas mishpatim he quotes 2 fundamental approaches for the source of dina d'malchusa. The Ran and Rashbah take the approach that the land is owned by the king so he can implement what he wants. Whereas the Rashbam (baba basra 54b) and the Rambam (Hilchos gezeila 5:18) take the approach of "heskem b'nei hamedina", meaning that the inhabitants of a particular area accept certain rules and principles on themselves (there are also more approaches such as rashi in gittin who implies that it is based on the fact that goyim are commanded on dinim, which gives them authority to impose their dinim even on the jews). Based on the approach of "heskem b'nei hamedina", the rambam makes a distinction between an actual king and a warlord or mafia, since those groups may be powerful but have not been accepted by the population. This approach also seems to be the basis of the Ramah quoted in Tur (c.m. 369) who says that tax increases that are being imposed against popular opinion would not be justified using the rule of dina d'malchusa.

Tosafos about mavriach ari, at the very end speaks about Jews who were forced to escape from their land to avoid taxes that they could not afford. The land would then be taken by the government and sold off to others. The R"I holds that if the government sold it to another jew, the sale is not binding since they had no right to sell it in the first place (but the original owner would have to compensate for benefits he received). Tosafos explains that this is not dina d'malchusa, rather it is gezeila. Tosafos doesn't consider it gezeila due to the lack of authority such as a warlord or mafia type, rather tosafos says - ואם יש שר שבא לשנות את הדין ולעשות דין לעצמו אין זה דינא דמלכותא שהרי זה הדין אין הגון כלל

Tosafos seems to understand that the concept of dina d'malchuas is limited to what people consider justice, not what people perceive as theft. Therefore, even a government who technically has the power to impose dina d'malchusa, they can only do what is considered by most people to be "fair". This would also be based on the approach of the Rambam and Rashbam that the concept of dina d'malchusa is based on consensus of it's citizens. 

ב"ק נ"ט - אבילות דירושלים וקץ כופרי

ב"ק דף נ"ט: "אליעזר זעירא הוה סיים מסאני אוכמי וקאי בשוקא דנהרדעא וכו' אמר להו דקא מאבילנא אירושלים אמרו ליה את חשיבת לאיתאבולי אירושלים וכו' אמר להו או אתון בעו מינאי מילתא או אנא איבעי מינייכו מילתא אמרו ליה בעי את אמר להו האי מאן דקץ כופרא מאי משלם אמרו ליה משלם דמי כופרא והא הוו תמרי א"ל משלם דמי תמרי אמר להו והא לאו תמרי שקל מיניה אמרו ליה אימא לן את אמר להו בששים וכו' - ע"כ. והגמרא צ"ב מה השייכות של השאלה איך שמין היזק אם אבילות על ירושלים.
ואשר נראה לי דבאמת צ"ע הגמרא, שמהשקלא וטריא ביניהם משמע שלא שייך לשום הכופרא בפנ"ע ולכאורה הוי גזה"כ לישום ע"ג שדה אך בלי הגזה"כ היינו שמין בפנ"ע. והנראה לי שביאור הגזה"כ שאין משלמין על הכופרא בפנ"ע אף שיש לזה ערך בשוק, דהקרא מגלה שלא משלמים אלא על היזק שנעשה עכשיו ולא על דבר שששייך שיהיה לו ערך או לא (בלע"ז פיוטורס). דהיינו הערך של כופרא בשוק כעת הוא לא הערך העצמי שלו אלא על מה שעתיד להיות, ועל זה לא משלמים. רק כששמין ע"ג שדה זה נחשב ערך העכשווי של השדה. דבתוך מהלך של שדה המובילה לצמיחת פירות, יש גם "נותן טעם" לערך של כופרא.
ובדומה לזה לגבי בית המקדש. אם אין חיבור וקשר בין תחתונים ועליונים א"כ אין כעת לבית המקדש שום ערך ואין על מה להתאבל אלא לבעל יוהרא שחי בעליונים. אך לאדם שמבין שמהלך החורבן מוביל לבנין בית המקדש העתידי - לו יש על מה להתאבל.וזהו מה שהוא גילה להם שכמו שלכופרא אין ערך אלא עם מערכת של שדה, כך הערך של בהמ"ק היום הוא בתוך מערכת שמובילה לבנית בית המקדש השלישי, ולכזה אדם שחי כך כל השנה שייך להתאבל כל השנה.

Baba Kama 55a - Tov in the Luchos

One of the strangest exchanges that we find in baba kama is the dialogue about why the term "tov" is missing in the first of the aseres hadibros and is only found in the last set. R' Chiya Bar Abba then makes a comment indicating that he isn't sure about the proper text, until R' Tanchum confirms it. Finally the gemara concludes that since the first tablets were to be broken, Hashem foresaw this and left out the term "tov".

Rashi explains that the gemara is making reference to the term "tov" in the mitzvah of kibud av v'eim that says למען ייטב לך. The Maharatz Chiyus is bothered by the very difficult question, how is it that the Tanaim were not familiar with the text of the aseres hadibros, until it was confirmed by R' Tanchum. Although Tosafos in Baba Basra writes that sometimes they were experts in pesukim, it seems strange to say that they didn't know the aseres hadibros!

The Maharatz chiyus suggests that the discussion was whether the aseres hadibros that are recorded in parshas yisro was the text on the first set of luchos, and the aseres hadibros in v'eshchanan are the second set of luchos. R' Tanchum had a mesorah that it was in fact the case, to which the gemara finally explains that it now makes sense that the luchos which were to be broken didn't contain the term "tov".

The Torah Temima (Devorim 5:16) offers another approach. The gemara is making reference to a midrash where Hashem says to Moshe that He is going to give a second set of luchos, to which moshe is happy and responds "טוב לי תורת פיך מאלפי זהב וכסף". Why did he only respond this on the second and not the first? On that the gemara explains that since they would be broken, it would be inappropriate to say that about the first set of luchos.

However, based on the conventional understanding of the gemara, it certainly seems to hold that the aseres hadibros of yisro were the first luchos, and v'eschanan the second. Based on  this, we can make another observation. In the second luchos, by shabbos and kibud av it says כאשר צוך ה' אלקיך which rashi interprets makes a reference back to mara where the water was bitter. Why is this reference specifically in the second luchos and not the first? The Chasam Sofer in Parshas Beshalach explains that Hashem taught us in Mara that he is our personal doctor - כי אני ה' רופאיך. Unlike a physician who just heals the sick, Hashem is our "family doctor" who is just as interested in providing us with preventional medicine, as He is with remedies for illness. In the second luchos Hashem wanted to remind klal yisroel that doing aveiros (such as the golden calf) forces him to bring upon us illness, and then show he can heal. He much prefers avoiding illness in the first place by our commitment to His Torah - כי אני ה' רופאיך

Baba Kama 53b - Man, Ox and Bor all damaging together

The gemara says that if a man and an ox would together push another animal into a bor, they would equally split the damages between the the man who pushed, the ox who pushed and the bor. Tosafos (here and on 6a) point out that we must be speaking about the person pushing accidentally, because if he intentionally pushed, why should the ba'al ha'bor be chayev! Just as if one throws his friends talis into a fire, or pushes his friends animal into a bor, the thrower and pusher are fully responsible, not the ba'al ha'eish or the ba'al ha'bor, here also the pusher should be more chayev than the ba'al ha'bor.

It is not clear from Tosafos what exactly the din would be if the person pushed with intent, together with an ox, into the bor of a third person. The ketzos Ha'choshen (410:2) explains the paradox. From the perspective of the person who pushed intentionally, the ox who pushed is his partner, but the bor is not. However, from the perspective of the ox who pushed, both the person and the bor are it's partners in this damage. So, if the person will pay half, the ox half, and the ba'al ha'bor exempt, the ox can claim that the ba'al ha'bor is his partner. If the person pays 2/3 of the damage and the ox 1/3, the person can claim that from his perspective the ox was his half partner in this damage. Therefore, the ketzos says that the person pays 1/2 the damage, and the shor and bor split the other half. Why? Because if the person pushed alone he would pay full, now that he has the ox as a partner he pays half. The remaining half the shor should pay, but the shor has the bor as a partner so they each pay 1/4. Based on this, the case in the gemara can be speaking when the person does it with intent, and all 3 participate in paying, but not equally. However, Tosafos implies that when the person does it with intent, the owner of the bor is completely exempt.

In the hagahos on the ketzos, they quote from R' Shimon Shkopf - From the perspective of the ox, there is no difference if the person was intentional or not, so the ox has 2 partners. From the perspective of the person who did it with intent, he only has one partner. Therefore, the ox pays 1/3, the person pays 1/2, and the remaining 1/6 is payed by the ba'al ha'bor.

Baba Kama 52a - Locking the Door: Chazaka?

Tosafos quotes the Rashbam who explains that נעל וגדר כל שהוא בנכסי הגר does not refer to merely locking the door, because that would not qualify as a chazka to acquire the house, rather it would be מבריח ארי by preventing a damage which doesn't qualify as a kinyan. Tosafos disagrees and proves from other places that locking the door would constitute a kinyan. Tosafos explains that locking the door is more than just preventing damage, because it demonstrates ownership by not allowing anyone else to enter.

Both Tosafos and the Rashbam agree that preventing damage would not qualify as a kinyan, but they argue whether locking the door is just preventing damage or demonstrating ownership. Why doesn't preventing damage qualify as a kinyan? The SM"A (choshen mishpat 192:10) writes:

שסילוק ההיזק אינו קונה, זה לשון הגמ' משום דהו"ל מבריח ארי מכנסי חבירו, פירוש רשב"ם ז"ל הא למאי זה דומה למשיב אבידה דכל ישראל מצווין להציל ממון חבריהם מן ההיזק

The Rashbam holds that since 'mavriach ari' is an obligation on every jew to save the property of another, it doesn't demonstrate ownership and cannot qualify as a kinyan. R' Akiva Eiger points out that based on this rationale, in the estate of a ger who died, since his estate is hefker, the logic of protecting another jews property no longer applies, therefore it should qualify as a kinyan. The Rashbam himself as quoted by Tosafos clearly holds that even in the estate of a ger, protecting the estate does not constitute an acquisition. The Pischei Teshuva quotes from the Ramban that even in the estate of a ger where there isn't any mitzvah, one cannot acquire by merely protecting the property from damage since it is just an act of preventing loss and not an act of a kinyan.

Baba Kama 51a - Ein Shliach l'dvar aveira

The gemara is searching for a case where there can be 2 parteners in a bor. The gemara suggests that if 2 people would together pay a third person to dig a bor, the first 2 would not be considered partners in the bor. The reason is that it is considered an aveira to dig a bor in the reshus harabim, so ein shliach l'dvar aveira would make the digger completely responsible for the bor, and the action would not be attributed to the first 2 at all. The gilyon Hashas refers to 2 sources, one a mishne l'melech, and the other a turei Even.

The Mishneh l'melech proves from this gemara that even by an issur d'rabonon we say ein shliach l'dvar aveira. He assumes that the aveira here is damaging the reshus harabim as rashi writes on 53a, and it is only an issur d'rabonon, yet we say ein shliach l'dvar aveira. I am not sure why he assumes that issur of damaging the reshus harabim is only d'rabonon. Is it only an issur d'rabonon to damage someone else's property? It would seem that it should be considered d'oraysa!

The Tueri Even discusses Tosafos in Kiddushin 42b who assumes that if the shliach is unaware that the act is an aveira then the sender is liable because the argument of דברי הרב ודברי התלמיד דברי מי שומעין no longer applies. The Turei Even proves from our sugya that even when the shliach is a shogeg we still say אין שליח לדבר עבירה. We can always say that the case is where 2 people appoint a third to dig a bor in reshus harabim without him being aware that there is an issur, so if tosafos is correct the first 2 should be liable for the bor. From the fact that the gemara doesn't entertain this case implies that even if the shliach is a shogeg we still say אין שליח לדבר עבירה. Based on this proof, rashi becomes somewhat problematic because rashi explains that the concept of אין שליח לדבר עבירה is entirely based on the concept of דברי הרב ודברי התלמיד דברי מי שומעין which certainly should not apply to a case where the shliach is a shogeg.

Another issue that I have is that if rashi 53a is correct that the aveira we are speaking about is the damage to the reshus harabim, the chiyuv of bor doesn't seem to be connected to the aveira. Normally when we say ein shliach l'dvar aveira, the issue is attributing the aveira such as murder or stealing to the sender rather than the agent. But, in this case the person who is digging the pit is doing 2 seperate activities: 1. he is doing an aveira of ruining the reshus harabim. 2. he is causing a public hazard by putting a bor in the reshus harabim. The 2 are not related because one can technically place a bor in the reshus harabim such as a stone, and not be in violation of an aveira of ruining the reshus harabim, yet be liable for the bor. Therefore, the concept of אין שליח לדבר עבירה should only exempt the sender from the violation of ruining the reshus harabim, but he should still be liable for the damages caused by the bor that he asked the agent to dig. It must be that the aveira at hand is the setting up of a bor, just as any mazik is an issur aside from the liability, so the aveira is completely tied to the person who is liable for the damage. Therefore, if אין שליח לדבר עבירה says that the sender did not do the issur of digging the bor thereby setting up a public hazard, the agent would be the one who set up the danger and therefore the agent would be liable for the damages.

Baba Kama 50a - Connection between Avrohom and Aliya L'regel

The gemara tells the story of the daughter of Nechunia who would dig wells for the olei regel to have drinking water on their way up to Yerushalaim. One day she fell into a well and people feared that she was killed but R' Chanina Ben Dosa was sure that she was alive because the zechus of her father doing mitzvos with the wells protected her. When she was asked how she escaped, she said that an old man who rashi identifies as Avrohom Avinu came with a ram symbolizing the akeidas yizchok, and rescued her. Why Avrohom?

In Chagiga 3a the gemara says darshens from the pasuk מה יפו פעמיך בנעלים בת נדיב - how beautiful are the feet of the Jewish people when they ascend for aliya l'regel. "Bas nediv" refers to the daughters of Avrohom Avinu who was the first convert. Rashi explains that the concept of Avrohom being the first convert meant that he devoted himself entirely to recognize Hashem (it does not mean that he had the status of a Jew, because Rashi writes in avoda zara 3a that he had status of a ben noach). Once again we see a connection between Avrohom and aliya l'regel, but now with some insight that Avrohom devoted his entire self to recognize Hashem. The gemara in Pesachim 8b comments that when the Jews go to be o'leh regel Hashem offers special protection to their possessions and property which would otherwise be ransacked by the goyim who all know that the Jews leave at that time of year to be o'leh regel.

Avrohom Avinu symbolized giving up all worldly possessions, leaving his father's home and even sacrificing his own son, in pursuit of Hashem's will. He was literally on the go, trusting in Hashem's protection. It is Avrohom who gave the courage to klal yisroel to be o'leh regel 3 times a year, placing the protection of all their physical possessions in the hands of Hashem. Nechunia who enabled people to be o'leh regel by digging wells to provide drinking water, was protected by Avrohom since the aliya l'regel demonstrates the character trait of mesiras nefesh that Avrohom instilled in Klal Yisroel.

Baba Kama 47a - Child is a limb of the Mother

The gemara says in temurah 30b that when a person is rovei'ah a pregnant cow, the cow and calf are both chayev misah because היא וולדה נרבעו. Tosafos explains that this does not prove that the child is viewed as a limb of the mother since the chiyuv misah on the calf is due to the calf also receiving "hana'ah" from the act of aveira. However, our sugya which says that the damage caused by pregnant cow can be collected in full either from the cow or from the calf, indicates that the child is viewed as a limb of the mother, otherwise each should only be responsible for their share and not for the entire damage.

R' Akiva Eiger (kesavim 172) has a famous question that if we assume that היא וולדה נרבעו because the calf is a limb of the mother, why would it be permitted for one to have relations with his pregnant wife - shouldn't it be a violation of having relations with one's daughter? R' Akivah Eiger considers the assumptions in the question to be valid, and therefore answers based on a technicality that since the fetus who is his daughter is less than 3 years old, it is not viewed as an act of relations. Although one would be forbidden to have relations with any issur ervah who is less than 3, that is not a violation of an issur ervah, rather a violation of wasting his seed, which does not apply when he is having relations with his wife.

Focusing on the question of R' Akiva Eiger, which he prefaces by saying that if  עובר ירך אמו then it should be forbidden to have relations with one's wife who is pregnant - why does he preface the question with the concept of עובר ירך אמו since tosafos explains that the din of היא וולדה נרבעו applies even if עובר לאו ירך אמו based on the concept that the fetus also gets hana'ah?

Also, the assumption of R' Akiva Eiger that when one is roveiah the cow, it is as if he is also rovei'ah the unborn fetus seems strange. In the case of the cow and calf, since the calf is considered a limb of the mother, it becomes assur together with the mother even though the bi'ah was to the mother and not the calf. But in the case of a man having relations with his pregnant wife, it is not as if he had relations with the daughter, so there is no reason to assur the act. It may be true that if the woman would assume a status of issur, that may apply to the child just as the status of "nir'vah" applies to the child. Based on this, the question of R' Akiva Eiger would actually be stronger if we would say עובר לאו ירך אמו and therefore be forced to say that the issur on the calf is because it also received hana'ah , implying that it is as if he actually had relations with the calf also?

Baba Kama 45a - Hezek Nikar and Hiding the ox from Beis Din

The gemara says that everyone agrees that when a shomer return something which became assur b'hana'ah, such as chometz that sat in the shomer's possession over pesach, he can say to the ba'alim "here is your item" - הרי שלך לפניך. The shomer would not be responsible for the loss. However, an ox that killed while it was being watched by the shomer, there is a machlokes. Rabbonon hold that the shomer is liable since he allowed beis din to get their hands on the ox, and without them getting the ox, it could not be judged to be killed. R' Yakov argues and says that since they could have judged the ox to be killed without getting their hands on it, the shomer can say הרי שלך לפניך and is not responsible.

Rashi understands that returning issur hana'ah qualifies as returning. Also, all agree that the shomer is not responsible for not hiding the ox from beis din, just as he is not liable for being passive and allowing the chometz to become assur over pesach. The issue here is whether the shomer was negligent by doing an act of handing over the ox to beis din. Rabbonon hold that regarding his "shomer" responsibilities he is not liable because for that he can claim הרי שלך לפניך, but since he handed over the ox to the beis din, it is considered being mazik the owner b'yadayim, for which he is liable as a mazik. This is only because the beis din having the ox gives them the ability to judge it, therefore he is a mazik for handing it over. But according to R' Yakov that they could judge it even not in its presence, he is not doing an act of damage by handing it over so he is not chayev.

Tosafos asks on rashi: If the act of handing over is considered a היזק ניכר, a recognizable damage, then even if he allows the beis din to take it without making an effort to hide it, he should be chayev. And if it is considered a היזק שאינו ניכר, a damage that is not recognizable in the object, he should not be liable even for handing it over?

Due to these questions, Tosafos deviates from rashi's approach, and explains that it is considered a recognizable damage and he is therefore chayev even for passively not taking measures to avoid the beis din from getting their hands on it. Therefore the rabbonon hold that he is chayev as a mazik even if the beis din grabs it from him without him handing it over, whereas R' Yakov holds that since they could judge it even not in it's presence, it is considered a non-recognizable damage, so he is not liable.

The Mishneh L'melech (gezeila 3:4, cited in rashash and gilyon mr"sha) asks on Tosafos question, we can consider it a damage that is not recognizable which is at least chayev m'drabonon similar to being metamei the taharos of someone else? The Steiper (31) explains Tosafos question that the handing over the ox to beis din really should not qualify as a damage at all, rather it is a mitzvah to help the beis din obtain the ox. The responsibility here of the shomer is only due to the fact that he is a shomer who has chiyuvim to the owner.  Being that he has chiyuvim to the owner, by handing over the ox to beis din, he may be succeeding in his responsibility to Hashem, but is failing in his responsibility to the owner. Therefore, Tosafos asks that if היזק שאינו ניכר לא שמיה היזק so that he can't be liable as a "mazik", he should be patur for handing it over to beis din since it is considered a mitzvah. 

Rashi would answer this by saying that he may be obligated to Hashem to assist the beis din in getting the animal, but his responsibility to the owner [which is also recognized by Hashem] is to avoid beis din from getting the animal. Therefore by handing them the animal he is failing in his responsibility as a shomer. Since as a shomer he is in violation for helping the beis din get it, he can no longer claim to be justified by giving it to them and becomes a mazik on this act, so he is liable as a mazik.

Baba Kama 44b - Hasra'as Safeik

The gemara says that in a case where one throws a stone into an area that has half yisroelim and half goyim, he is patur from capital punishment because "safeik nefashos l'hakel". Tosafos asks, why do we need the concept of "safeik nefashos l'hakel", even without that he should be patur since it is a warning of safeik. Since it is not clear that this action he is about to do will kill a yisroel, it is a hasra'as safeik which is not called a warning at all, so he should be exempt since he wasn't warned? Tosafos answers that really the gemara only works out according to the opinion who says that even a warning m'safeik qualifies as a warning, and makes a distinction between this and another case. However, the Rashba explains that whenever we have a majority, since the rule is that we assume the stone will hit the majority, it qualifies as a definitive warning. If there were 9 goyim and 1 yisroel, we would not say it is a hasra'as safeik, rather it is like all goyim. Similarly, if there were 9 yisroelim and 1 goy, we consider it a definite warning since we assume the rock will hit a yisroel, just that the torah exempts him based on the concept fo ka'vuah. The concept of kavu'ah is that they are treated as half and half, where we then implement the pasuk of "v'hitzilu ha'eida" to say safeik nefashos l'hakel, which makes it as if it were mostly goyim. Basically, so long as there is a rov in one direction or another, we consider it a definite hasra'ah as if he were warned not to kill whoever is the rov. When it is half and half, or kavuah, we use the concept of safeik nefashos l'hakel to make it as if it were mostly goyim, to the exclusion of being like mostly yisroel (which would then be a definite warning for yisroel to make him chayev misah).

Baba Kama 43a - Differences between Kofer and Compensation

The gemara has a discussion whether kofer is a "kapara" - atonement, or a k'nas - penalty. If kofer is a penalty, the differences between kofer and damim - compensation, are very clear (i.e. mo'deh b'knas patur). But if kofer is a kapara (the gemara 41b is explicit that admitting would be chayev, and even Raba 43a would only patur because of a technicality that the ox isn't killed), what are the differences between kapara payments and compensation? If kofer is the value of the damager, it is clearly very different than compensation which is the value of the nizuk, but if kofer is the value of the nizuk (machlokes 40a), what is the difference?

1. Rashi (d.h. lo damim) indicates that if one is an o'nes in that he has no money, he is not in violation of anything for not paying a "damim" type payment, but if it is a "kapara" he would remain susceptible to punishment until he pays.

2. Tosafos (d.h. mai) - If the mazik dies, he is not in need of paying for his kapara, because after one dies he is not in need of this kapara, just as korbanos that he failed to bring in his lifetime, need not be brought in his death. This answer seems to be a big chiddush. We find that a person can accrue zechuyos even after he is dead (such as when his children say kaddish, or a d'var torah is said in his name), so why can't he obtain kappara from a payment after his death? Tosafos seems to understand that the kapara is not achieved by the nizuk's inheritors receiving, rather it is achieved by the mazik paying. Once the mazik is dead, his estate no longer belongs to him so he would not be paying and therefore cannot receive atonement.

3. Tosafos (d.h. mai) - The nizuk's inheritors cannot be mochel on receiving kofer, because until the family of the nizuk receive the kofer, the mazik goes without kapara. It would seem to follow that since the mazik is entitled to a kapara through paying kofer, the nizuk's inheritors have no right to refuse accepting the kofer.

4. Gemara 40a - There is a possibility that an ox owned by partners that kills a person, each one would have to pay full kofer, rather than dividing the payment.

5. Gemara 40a - There is also a possibility that for kofer it is assumed that the person will pay to receive atonement so it is not necessary to take a collateral from him, but for a compensation payment we take a collateral.

6. Ra'avad (mentioned in Rashba) suggests that perhaps kofer is paid based on erchin value rather than real value in the market, but the rashba argues.

7. Ra'avad (in Shita) suggests that for a ba'al chov we are mesadrin - we leave behind certain essentials when we collect from him, but for a kapara we would not be mesadrin.

8. Me'iri explains that we are only bound to come up with a distinction between kofer and damim, if we interpret the gemara that for killing a person one can sometimes be patur from kofer but have to pay damim. The meiri rejects this peshat in the gemara and therefore says we do not need to come up with any distinction between kofer and damim, because in a case of kofer, one is never chayev damim.

Baba Kama 39b - Are children responsible for their damages when they grow up?

The Hagahos Ashri (perek hachovel #9 in Rosh) writes that a child who damages is responsible to compensate the nizuk for his damages when he becomes an adult. He proves this from our gemara where it says that even according to the opinion that yesomim are not responsible to pay for their mu'ad animal damaging, the nizuk would collect from the caretaker, and the caretaker would collect from the orphans when they grow up. If children are responsible to compensate for their animal causing damage that occurred when they were young, they are certainly responsible to compensate for their own damage.

Most Rishonim disagree with this pesak and it is not even mentioned in Shulchan Aruch. But, according to the opinion of the hagahos ashri, would children be responsible to do teshuva for aveiros that they committed when they were younger?

R' Moshe (Y.D. 2:10) explains that even according to the hagahos ashri, the responsibility to pay when they grow up, does not apply to other aveiros. He explains that from the fact that the responsibility to compensate from damage does not require a warning in advance, the requirement to compensate does not stem from the aveirah that was violated, rather from the fact that damage was done to another. This 'avlah' that was done to harm the money of someone else, is not connected to the aveirah at all, and applies even for a child.

The only reference to a child having to do teshuva for aveiros that were violated when he was younger is the rama (o.c. 343) who says that a child who hit his father or violated other aveiros, it is good to do teshuva and something positive for kappara when he grows up. R' Moshe explains that this itself is not a requirement, rather just a good suggestion.

Regarding the proof from our gemara where the caretaker can collect from the yesomim when they grow up - perhaps that is only because the exemption of a child is based on his inability to take care of himself and watch out from damaging others. But, in the case where he has a caretaker to keep a watch on his animal, the child would be responsible for damages, just that collection is pending until he becomes an adult.

Baba Kama 38a - Distorting Torah

In kiddushin, I quoted a few teshuvos from r' moshe regarding double ring ceremonies. 

http://hearos.blogspot.com/2008/10/kiddushin-4b-double-ring-ceremony.html

In one of the teshuvos (E.H. 3:18) he makes a fascinating point based on the maharshal in this gemara.

R' Moshe writes that there is an "issur gadol" to do any type of distortion of a halachic process, even if it is benign, which will cause people to forget dinei torah. He cites the Yam Shel Shlomo (9) that one cannot distort any din even for pikuach nefesh purposes (like tosafos says in his first answer was the case of the 2 sardiyotos), because it is like being kofer against toras moshe. Even though there wasn't any chashash of kilkul because it would have been said to goyim, not jews, it was still assur. We see that it is b'etzem assur to distort any din torah, even if it won't directly lead to a kilkul. Just as it is assur to say something is a din torah when it isn't, it is also assur to do a ma'aseh implying something is a din torah, when it in fact, is not.

Baba Kama 38a - Damaging goyim

The gemara says that the term רעהו in the torah is davka, so that the din should be that whether a jew's ox gores a goy or a goy's ox gores a jew, the damager should not be liable, as the tana of our mishna holds by hekdesh (The nimukei yosef explains that we darshen "ray'eihu" by goyim as we do by hekdesh to exempt in both directions. Maharshal changes the girsa in tosafos to conform to this, but the maharsha and maharam maintain that the term "ray'eihu" only excludes hekdesh, but does not exclude goyim. Rabbeinu peretz in shita also says that goyim are included in רעהו). However, the rabbonon darshened that since the goyim were not keeping the 7 noachide mitzvos, the torah was matir their money and hold them responsible for damages they cause to a jew.

The Rambam (nizkei mamon 8:5) offers a rationale for when a jew causes damage to a goy being patur, and when a goy causes damages to a jew being chayev. When a jew damages a goy he is patur because "לפי שאין הגוים מחייבין את האדם על בהמתו שהזיקה, והרי אנו דנין להם כדיניהן". When a goy damages a jew he is chayev because "קנס הוא זה לגוים לפי שאינן זהירין במצות, אינן מסלקין הזיקן, ואם לא תחייב אותן על נזקי בהמתן אין משמרין אותה ומפסידין ממון הבריות".  Why does the Rambam give a rationale in both directions? If we darshen רעהו to exclude a goy, it is understandable why a jew is patur for damaging them without any logic, and if we don't darshen it to exclude a goy, it is understandable that a goy who damages a jew is chayev without offering any rationale?

The rambam clearly learns that the gemara which says that since they were not keeping the 7 mitzvos, the torah was matir their money, to explain why a goy who gores a jew is chayev to pay full. This implies that the default position is that both a jew to a goy and a goy to a jew should be patur, because רעהו is davka, and the gemara had to explain why a goy is chayev for damaging a jew. The Rambam understands that the fact that they weren't keeping the 7 mitzvos is an indicator that they were not concerned about others i.e. killing, stealing, adultery. Since they were not concerned about damages to others, they weren't watching their animals to prevent them from damaging, so we apply a penalty to encourage them to watch their animals.

Now, the only question that is left is why the Rambam has to give a rationale for a jew being patur for damaging a goy - the reason should simply be because it says רעהו? The Ra'avad argues on the Rambam's logic that it is simply not true, because when a goy's animal gores another goy, the nizuk grabs the animal to collect from? Although the Magid Mishna tries to justify the rambam's rationale, that it applied where he lived, he points out that the din would be the same even in societies where secular law dictates that people are responsible for their animals damaging. The lechem mishna claims that the Rambam's rationale is from the yerushalmi, but the question still remains why is it necessary?

The Rambam seems to darshen the טעמא דקרא, that the rationale for the torah exempting a jew for damaging a goy is because in their dinim they are not liable for damaging each other. The Rambam isn't just making this rationale up on his own (as the magid mishna indicates), rather he saw this rationale in the pasuk itself. Whenever the Torah limits a mitzvah to a ריע, such as ואהבת לרעך כמוך and לא תעמוד על דם רעך, it is indicating that since the Jews are an isolated entity from the goyim, they are obligated to treat each other with special privellages. Therefore, the Rambam writes that the רעהו in the context of damages as well, is not merely a gezeiras hakasuv, rather it is an indication that paying for damages that were caused by one's animal, is a special privellage between jews, and doesn't apply to goyim, since they don't recognize it as something worthy of being liable for.

This past shabbos, Dr. Ari Tuchman raised a very insightful question: Why do we use the term וישאלו איש מאת רעהו by the jews taking from the mitzrim, doesn't רעהו imply jew from jew? (This question would only be according to nimukei yosef and maharshal that i mentioned above, who consider the maskana of the gemara to be that רעהו  excludes goyim).

I found that Rabbeinu B'chaya answers:

יראה לי שקודם מתן תורה היו כל הבריות חברים כאחד, אבל לאחר מתן תורה שהחזיר הקב"ה את התורה על כל אומה ולשון ולא קבלוה עד שקבלוה ישראל, יצאו כל האומות מן האחוה והריעות ונשאר השם הזה בעם ישראל בלבד שנקראו אחים ורעים למקום, הוא שכתוב "למען אחי ורעי", ודרשו רבותינו "לכל אבדת אחיך" אחיך ולא לגוי, וכן "לא תשיך לאחיך" אחיך ולא גוי

Based on Rabbeinu B'chaya, the status of the jews being called "רעים", to the exclusion of the goyim, occured at matan torah when the goyim refused to accept the torah, so that only the jews remained רעים of Hashem by accepting His Torah. Therefore, the status of רע which teaches that a jew is patur for damaging a goy, occured at the precise moment that the goyim rejected the torah, causing Hashem to be mafkir their money to the jews and making them liable for their ox damaging jews.

Baba Kama 37b - Patterns for Mu'ad and Nidah

Tosafos explains that anytime a veset is dependent on a specific day such as a date of the month (15th nisan, 15th iyar, 15th sivan), the veset is established after 3 times. But anytime the veset is dependent on the passing of a certain amount of time such as veset haflagah where she creates a veset to see every 36 days, it must be 3 times of 36 days passing which would require 4 times seeing blood.

In the mishnah we find that an animal can become a mu'ad for shabbos and remain a tam for the duration of the week. Can an animal become a mu'ad for tuesdays? Rashi and Tosafos imply that an animal cannot become a mu'ad for a specific day of the week because they offer specific rationales to explain why an animal can be a mu'ad for shabbos (rashi - no work, tosafos - special clothes). They seem to understand that there is nothing special about an ordinary day of the week that we can attribute the goring to, therefore, only on shabbos where we can associate it to the actual day, would the animal become a mu'ad after just 3 times (similar to becoming a mu'ad for yom hachodesh). But, if the animal will gore on tuesdays, there is nothing special about tuesday that would make it gore, so it would not become a mu'ad until it gores 4 tuesdays in a row and creates a chazaka to gore every 7 days, starting from tuesday (similar to a veset haflagah). 

Tosafos assumes that goring every other day, is similar to a haflagah, just a very short haflagah and would require 4 times to create a chazaka. Tosafos draws a distinction between goring every other day and goring every other animal, because by goring every other animal it only takes 3 times to make a mu'ad. Tosafos seems to understand that goring every other day is similar to a haflagah where a woman would see blood every 36 days, so it will take 4 times to create a chazaka. But goring every other animal would be similar to a woman becoming a nida on (15 nisan, 15 sivan, 15 av), where she skips a month, but nonetheless the seeing is attributed to the day and therefore only takes 3 times to create a chazaka. Here too, although it skips animals, the goring is attributed to every other animal that it sees, so it only takes 3 times to create a chazaka.

In all the above cases, Tosafos assumes that Rav and Shmuel would agree (not like rashi who says that they argue about the goring every other animal that it sees). Tosafos understands that the machlokes rav and shmuel is only when the seeing of nidah is attributed to the day of the month, but it is with a di'lug - skip, such as 15th nissan, 16th iyar, 17th sivan. Even though all agree that a haflagah can only be determined after 4 times, in a case of dilug there is a machlokes.

Baba Kama 36b - Pledging Money that is not in one's possesion

The gemara says that when one is owed money as compensation for embarrassment, and they declared that the money should be given to tzedaka, their word is binding. Why? Because the beis din serves that the "hand" of the poor, and were already zocheh it for the poor. Tosafos asks, why not say that even if beis din would not be zocheh for them, it would anyway have to be given to the aniyim because it is as if he made a vow to give tzedaka? Tosafos answers that since when he said that it should be given to aniyim, it wasn't yet in his hands, it is not binding as a neder to tzedaka. But if he would say "when i get the money, i will give it to tzedaka", Tosaofos says that he would be obligated to fulfill his neder. Tosafos then quotes Rabbeinu Chananel who seems to assume that even if he would say "it should be to tzedaka", it would be a binding neder, but he would still be able to borrow the money for the time being. But, Rav Yosef says that he was already zo'cheh for the aniyim through ma'amad shelashtan.

Both answers of Tosafos are paskened in Shulchan Aruch (Y.D. 258:8). If one is owed a debt and sya that it should be for tzedaka, it is not a binding neder, but if he says that when he collects it, he will give it to tzedaka, then it is a binding neder. BUT if the money is in the hand of the ga'bai tzedaka, or if he says it in the presence of the gabai and the ba'al chov where ma'amad shelashtan goes into effect, the gabai acquires it for the aniyim.

The Shach (18) questions why Tosafos couldn't answer simply - If it were binding as a neder, one could be matir neder and uproot the chiyuv, but since it is binding as zechiya, he can't uproot the neder? The Shach proves from here that anytime one pledges money that is in someone else's hands, he cannot be matir his neder since they will automatically be zo'cheh for the aniyim. Hataras Nedarim will only work on money that is in the hands of the pledger, but not on money that is in the hands of someone else.

Can someone retract on a pledge to a tzedaka, based on the pe'sach of "if i would have known that the market would crash, i would never have pledged so much"? Based on the shach, if the money pledged was in his own hands (or in the hands of someone who cannot be zo'cheh for aniyim i.e. goyim), he can retract. But, if it is in the hands of another jew, who can be zo'cheh for aniyim, he cannot retract.