Three basic topics TB Baba Kama 56

Today’s daf TB Baba Kama 55 discusses three basic topics. The first is indirect actions that led to damages (גְרָָמָה). The person is exempt from liability according to human laws but liable according to the laws of Heaven it would be proper for him to pay compensation. A person may rationalize away his responsibility, but his moral responsibility still remains in the eyes of heaven  “Rabbi Yehoshua taught that one who breaches a fence that stood before another’s animal, thereby allowing the animal to escape, is liable according to the laws of Heaven, lest you say: Since the fence is about to collapse even without this person’s intervention, what did he really do? Based on that logic, one might have thought that he should not be liable even according to the laws of Heaven. Therefore, Rabbi Yehoshua teaches us that in such a case he is liable according to the laws of Heaven.” (Sefaia.org translation)

The second topic is shifting responsibility. Sometimes a shepherd is responsible for the sheep entrusted to him and sometimes he is freed from liability. “From the fact that the mishna teaches the case using the expression: He conveyed it to a shepherd, and does not teach it using the less specific expression: He conveyed it to another, conclude from it that what it means by: He conveyed it to a shepherd, is that the shepherd conveyed it to his assistant, as it is the typical manner of a shepherd to convey an animal to his assistant. But if the shepherd conveyed it to another to care for it in his place, the mishna does not rule that the other person enters in his place.” (Sefaria.org translation) The owner of the sheep could claim he didn’t want the original shepherd to subcontract out to another shepherd’s flock. Consequently, the first shepherd remains liable.

The third topic revolves around lost objects. Returning lost objects is a mitzvah (הָשֵׁבַת עֳבֵדָה). If the person can find the owner, he must keep the lost object and becomes a lost guardian. Rabba and Rav Yosef disagree what type of guardian he becomes with the concurrent responsibilities and liabilities. “Rabba said that he is considered to be like an unpaid bailee (שׁוֹמֵר חִנָּם) because what benefit comes to him through safeguarding it? Therefore, he is just like any unpaid bailee. Rav Yosef said that he is considered to be like a paid bailee (שׁוֹמֵר שָׂכָר) on account of the benefit that he is not required to give bread to a poor person while looking after the lost item, since one who is engaged in one mitzva is exempt from performing another. Consequently, since there is some benefit involved in looking after the lost item, he is considered to be like a paid bailee.” (Sefaria.org translation) Rav Yosef wasn’t talking about finding a wallet which requires no work watching it. He was talking about a case of a lost animal that needs feeding and caring.

Rambam poskins according to Rav Yosef in our last case “If an announcement or notification was made and the owner did not come to claim the discovered object, it should remain in the possession of the finder until Elijah the prophet comes.

“If it is lost or stolen while it is in the finder's possession, he is responsible for it. If it is destroyed by forces beyond his control, he is not liable. The rationale is that a person who cares for a lost object is considered a paid watchman. For he is involved in the performance of a mitzvah, and as such is freed from the obligation to perform several positive commandments as long as he is occupied with guarding it.”  (Mishneh Torah, Laws of Robbery and Lost Objects, chapter 13 halakha 10)

 

Facing the future with hope #Vayakhi#devartorah#parashathashavua

People stand in the cold by the thousands in Times Square, New York City. What draws them to that place? There’s no sporting event or rock concert. There’s just a huge lighted ball that drops down a pole on top of a building. It takes only a few seconds, and it hardly seems worth fighting traffic and subway crunch to see—except that it happens on New Year’s Eve.

Why have we created a holiday over such a nonevent? Other holidays celebrate famous birthdays or historical milestones or something. New Year’s Eve just celebrates the passage of time. We make such a fuss because it signals the end of an old era and the beginning of a new one. The old year’s problems and struggles become a dim memory when we think of getting a fresh start.

It must have been something like that for our people when our patriarch Jacob passed away in this week’s Torah portion. His death and the death of Joseph and his brothers marked the end of an era. Even at the very end the brothers not trusting Joseph lied saying “Before his death your father left this instruction: so shall you say to Joseph, ‘forgive, I urge you, the offense and the guilt of your brothers who treated you so harshly. ‘” (Genesis 50:16-17 ) Despite the fact that Jacob speaks to Joseph, his grandchildren, and blesses his sons, nowhere in this parasha does Jacob ever say these words.

Although we know there will be 210 years of slavery ahead of them, this will not be the end of the Jewish people, but the real beginning of our nation. Best of all, as we will begin the book of Exodus in one week they will have God’s promise that He would be with them redeem them out of Egypt and bring them to the land of Israel, a land flowing with milk and honey.

As we stand with our back to the past 12 months and our face toward the 2024, we can have hope because we too can be sure of God’s help. That makes the prospect of a secular new year worth celebrating!

Something extra for this week: Did you know that there’s a popular Jewish song embedded in this week’s Torah portion? Jacob’s blessing for his grandchildren is put to music. The first site will give you the words both in Hebrew and English with a citation and the second site presents the Maccabeats singing their version.

http://www.mamalisa.com/?t=es&p=5343

https://www.youtube.com/watch?v=jqCYL467nc8

  

What about sheep? TB Baba Kama 55

Today we begin the sixth chapter of our massekhet with daf TB Baba Kama 55. The subject under discussion changes from oxen to sheep. This change we shall learn is significant.

The Mishnah begins discussing what is appropriate safeguarding (shemira-שְׁמִירָה) for sheep. “In the case of one who brought his flock of sheep into the pen and locked the door before it in a manner that is appropriate, and despite this sheep went out and caused damage in another person’s field by eating produce or trampling it, the owner is exempt, since he safeguarded the animals appropriately. If he did not lock the door before the sheep in a manner that is appropriate, and sheep went out and caused damage, the owner is liable, since his negligence led to the damage.” (Sefaria.org translation)

There is a disagreement what qualifies for minimum safeguarding (shemira pekhuta-שְׁמִירָה פְּחוּתָה) Rabbi Meir holds that shemira pekhuta is never acceptable for an ox. A person always needs maximum safeguarding (shemira me’ula- שְׁמִירָה מְעוּלָה). Rabbi Yehuda holds that an ox that is a tam (תָּם) needs shemira me’ula while a mu’ad (מוּעָד) just needs shemira pekhuta. Rabbi Eliezer says “A forewarned ox has no sufficient safeguarding at all other than slaughtering it with a knife. ” (Sefaria.org translation)

The Gemara explains that sheep are different and only require shemira pekhuta.

“Although animals are considered forewarned with regard to Eating and Trampling, one cannot apply to them a halakha stated with regard to an animal that is forewarned with regard to Goring. The halakha is different with regard to Eating and Trampling since the Torah limited the required standard of safeguarding for them. As the amora Rabbi Elazar says, and some say it was taught in a baraita: There are four matters for which the Torah limited their required standard of safeguarding, and these are: Pit, and Fire, Eating, and Trampling.

“Where does the Torah limit the required standard of safeguarding with regard to the category of Pit? As it is written: “If a man shall open a pit, or if a man shall dig a pit and not cover it, and an ox or a donkey fall therein, the owner of the pit shall pay” (Exodus 21:33). One can infer: But if he covered it, he is exempt from liability, even though it is possible that the pit would become uncovered in the future.

“Where does the Torah limit the required standard of safeguarding with regard to the category of Fire? As it is written: “The one who kindled the fire shall pay compensation” (Exodus 22:5), which is interpreted to mean that one is exempt from liability unless he acts in a manner that is similar to actively kindling the fire in another’s property by being negligent.

“Where does the Torah limit the required standard of safeguarding with regard to the category of Eating? As it is written: “If a man causes a field or vineyard to be eaten, and he set his animal loose, and it feed [uvi’er] in the field of another” (Exodus 22:4). This indicates that the owner does not bear liability unless he acts in a manner that is similar to causing his animal to feed there, by being negligent.

“Where does the Torah limit the required standard of safeguarding with regard to the category of Trampling? As it is written: “If a man causes a field or vineyard to be eaten, and he set his animal loose [veshilaḥ], and it feed in the field of another” (Exodus 22:4). This indicates that the owner is not liable unless he acts in a manner that is similar to setting his animal loose.

“Rabba said: The wording of the mishna is also precise, as it taught the halakha specifically with regard to sheep. This raises the question: Since we have been dealing with cases involving an ox in all the previous mishnayot, then let this mishna also teach the halakha with regard to an ox. What is different in this mishna that it teaches the case of sheep? Is it not because the Torah limited its requirements specifically with regard to the safeguarding against damage that is more likely to be caused by sheep, i.e., caused by Eating and Trampling, since sheep are unlikely to gore?” (Sefaria.org translation)

 

 

A unique klal, uprat, uklal (כְּלָֽל וּפְרָֽט וּכְלָֽל) TB Baba Kama 52

One of the 13 ways Rabbi Yishmael teaches the Torah is expounded is “כְּלָֽל וּפְרָֽט וּכְלָֽל-A rule followed by a detail, which is in turn followed by a rule, may infer only what is similar to the detail.” Today’s daf TB Baba Kama 54 applies this rule in a unique way. Generally the rule, detail, followed by a rule is found in one verse. Not on our daf! The Gemara uses this rule to teach all animals rest on Shabbat and not only a donkey and an ox.

“The Gemara asks: But why not say that the verses be expounded as follows: The term “cattle” used in the first version of the Ten Commandments is a generalization, and the phrase “your ox and your donkey” used in the latter version of the Ten Commandments is a detail. In the case of a generalization and a detail, the principles of halakhic exegesis dictate that the generalization includes only what is specified in the detail. Therefore, with regard to this subject, an ox and a donkey should indeed be included, but anything else should not be included.

“The Sages said in reply: In the phrase “nor any of your cattle” stated in the latter version of the Ten Commandments following the phrase “your ox and your donkey,” it then generalized again. Therefore, the verse is structured as a generalization, and a detail, and a generalization. According to the principles of halakhic exegesis, you may deduce that the verse is referring only to items similar to the detail. Consequently, just as the items mentioned in the detail are clearly defined as animals, so too, all items included in the general term must be animals.” (Sefaria.org translation)

The first set of 10 Commandments is found in the book of Exodus chapter 20 while the second set of commandments is found in the book of Deuteronomy chapter 5. The detail and the generalizations are certainly not contiguous! 

Tosefot ד"ה בְּהֶמְתֶּךָsays we should not consider the details and generalizations distant from each other in the case of the 10 Commandments. The two sets of 10 Commandments are really one for the rabbis teach concerning Shabbat “both were spoken in a single utterance at the giving of the Torah, like that which is taught in a baraita: “Remember (זָכור) the Sabbath day, to keep it holy” (Exodus 20:8), and: “Observe (שָמור ) the Sabbath day, to keep it holy” (Deuteronomy 5:12), were spoken in one utterance, in a manner that the human mouth cannot say and that the human ear cannot hear.” (TB Shavuot 20b, Sefaria.org translation)

Shlomo Halevi alluded to this understanding of the 10 Commandments in the very first stanza of his famous piyyut Lekha Dodi sung every Friday night.

שָמור וְזָכור בְּדִבּוּר אֶחָד. הִשמִיעָנוּ אֵל הַמְיֻחָד.

 ה' אֶחָד וּשמו אֶחָד. לְשם וּלְתִפְאֶרֶת וְלִתְהִלָּה.  -"Observe" and "Remember" in one utterance. The One and Only God allowed us to hear. God is one and His name is one. For renown and for glory and for praise.

 

 

Two lessons concerning the upcoming elections TB Baba Kama 52

Yesterday’s daf TB baba Kama 51b and today’s daf TB Baba Kama 52 digresses and discusses acquisitions. We know that a person acquires property one of three ways, the transference of money, they transference of a sign document, and hazakah (חֲזָקָה), doing something that shows ownership. Does a person acquires a cistern (בּוֹר) by “one who sells a cistern to another, once the seller conveys his bucket to the buyer for drawing water from the cistern, the buyer acquires the cistern?” (Sefaria.org translation) Similarly, does a person acquire a house when the seller hands over the keys? We also know that a person acquires movable property by pulling it (מְשִׁיכָה) or by conveying it (מְסִירָה). When buying a flock of sheep, does the buyer acquire by the mashkukhit? “The Gemara asks: What is this mashkukhit? Here, in Babylonia, they translate it as a bell [karkashta] that the shepherd rings and whose sound the flock follows. Rabbi Ya’akov says: It is referring to the goat that goes at the front of the flock that they follow.” (Sefaria.org translation) The basic answer to all three questions is the buyer does acquire a cistern, house, or flock under those circumstances.

When it comes to Torah study, I don’t believe in coincidences. My short devar Torah yesterday and the conclusion of the above sugiya with deal with leadership. In yesterday’s Torah portion, Vayigash Joseph sent his brother’s back to the land of Canaan to bring the father back down to Egypt. “They went up from Egypt and came to their father Jacob in the land of Canaan. And they told him, “Joseph is still alive; yes, he is ruler over the whole land of Egypt. His heart went numb, for he did not believe them.” (Gen. 45:25-6) Menachem Mendel of Kotz explained why Jacob didn’t believe it his sons. Joseph the Tzadik, a completely righteous person, couldn’t remain a tzadik and still be part of the government. These two ideas contradict each other. Congressman George Santos was expelled from Congress because of his many alleged crimes and the front runner for the presidency of the GOP is a man who’s been indicted 91 times. The court has already found him guilty of rape and fraud. These two examples seem to prove the Kotzer Rebbe correct. Therefore it is incumbent upon us in the upcoming special elections in primaries that we do our due diligence, and vote for people or more like Joseph than George.

Today’s sugiya concludes with a warning how are behavior impacts our leadership. “a certain Galilean taught in the presence of Rav Ḥisda concerning this goat: When a shepherd is angry with his flock, he renders the goat leading [lenaggada] them, i.e., the mashkukhit, blind. Similarly, when God is angry with the Jewish people, he appoints unsuitable leaders for them.” (Sefaria.org translation)

Just as we demand ethical public service, we must demand ethical behavior from ourselves. Otherwise we get what we deserve.

The pluses and minuses of being a righteous person , a tzadik TB Baba Kama 50

Up to now we’ve been learning about damages caused by an ox (or any other animal). Daf TB Baba Kama 50 changes the topic to damages caused by a pit (bor-בּוֹר). Here we must make a distinction between American law and Jewish law. Obviously, the Gemara only discusses what the Jewish law would be. Everybody agrees that a person is not liable when a person or an animal enters his property without permission and falls in a pit. That person is trespassing. Similarly everybody agrees that a person who digs a pit in public property is liable for all damages with two exceptions.

The rabbis give an exemption to those who “digs to lay foundations” (Sefaria.org translation) of their house. The rabbis want to make sure that houses have strong foundations so they would not collapse. There is a disagreement whether a person has to erect a fence or recess the foundation trench a bit into his property to be free from liability. When a person is digging wells to collect rainwater for drinking in the public domain is the second exemption. This person is working on behalf of the public. “The Sages taught: If someone dug or opened a well and transferred it to the public for their use, he is exempt from damage caused by the well. If he dug or opened a well and did not transfer it to the public, he is liable.” (Sefaria.org translation)

The Gemara gives an example of a righteous person, a tzadik, who dug wells as an example. And then goes on and tells a story about the pluses and minuses of being a righteous person.

“Having mentioned the deeds of Neḥunya, the Gemara relates that the Sages taught: An incident occurred involving the daughter of Neḥunya the ditchdigger, where she fell into a large cistern and no one could extricate her from it. They came and informed Rabbi Ḥanina ben Dosa so that he would pray on her behalf. When the first hour had passed from the time of her fall, he said to them: She is at peace and unharmed. After the second hour, he said to them: She is at peace. After the third hour, he said to them: She has ascended from the well, and indeed this was the case.

“They said to her: Who brought you up out of the well? She said to them: A male sheep, i.e., a ram (according to Rashi, this was the ram that was sacrificed stead of Isaac-gg) happened to come to me, and a certain old man, i.e., Abraham, was leading it, and he pulled me out. (Some say it was Abraham because he had compassion for both his sons Isaac and Ishmael. Consequently, he has compassion for all their offsprings-gg) They said to Rabbi Ḥanina ben Dosa: Are you a prophet? How did you know she had ascended? Rabbi Ḥanina ben Dosa said to them: “I am no prophet, neither am I a prophet’s son” (Amos 7:14), but this is what I said to myself: Shall the offspring of Neḥunya stumble by means of the very matter which distressed that righteous man?

“Rabbi Aḥa says: Although Neḥunya ensured that others would have water, even so, his son died of thirst, fulfilling that which is stated: “And around Him it storms [nisara] mightily” (Psalms 50:3). This teaches that the Holy One, Blessed be He, is scrupulous with those around Him, i.e., the righteous, even to the extent of a hairsbreadth [hasa’ara], so that even minor transgressions elicit a severe punishment. Rabbi Neḥunya says: The same idea may be learned from here, in the following verse: “A God dreaded in the great council of the holy ones, and feared by all those that surround Him” (Psalms 89:8), indicating that God is most careful and exacting with those that surround Him, i.e., the righteous.

“Rabbi Ḥanina says: Anyone who states that the Holy One, Blessed be He, is forgiving [vateran] of transgressions, his life will be relinquished [yivatru], as it is stated: “The Rock, His work is perfect, for all His ways are justice” (Deuteronomy 32:4). In other words, God does not waive heavenly justice. Rabbi Ḥana says, and some say that Rabbi Shmuel bar Naḥmani says: What is the meaning of that which is written in the verse that recounts the thirteen attributes of mercy: “Long-suffering [erekh appayim]” (Exodus 34:6), using the plural form, and it is not written as erekh af, in the singular? In order to teach that He is long-suffering for both the righteous and for the wicked and does not punish them immediately for their transgressions.” (Sefaria.org translation)

The plus of being a truly righteous person is that God sometimes performs miracles on his/her behalf. Although most often God delays rewarding the truly righteous person after 120 years. The minus of being a truly righteous person is God holds him/her to a higher standard and suffers consequences for even minor transgressions. The rest of us depend upon God’s compassion when the Holy One is judging us. 

“Tear down the walls that separate us” #Vayigash#parashathashavua#devartorah

The years following World War II were labeled the Cold War as nations exchanged threats and jockeyed for power. The Berlin Wall, built in August 1961, stood for almost 3 decades as one of the most powerful symbols of the smoldering animosity. Then, on November 9, 1989, it was announced that citizens could cross freely from East to West Berlin. The entire wall was demolished the following year.

In this week’s Torah portion, Vayigash, Joseph had his brothers exactly where he wanted them. Joseph was in the position to wreck his vengeance upon them. Yet Joseph refused to build a wall of hatred between himself and his brothers who sold him into slavery. After Judah spoke up on behalf of his brother Benjamin and Joseph saw that they were changed men, he couldn’t control himself any longer and revealed his true identity to them.  Needless to say, they were in shock with this news and were afraid of what Joseph might do next.  He comforts them and alleviates their fears saying, “Now, do not be distressed or reproach yourselves because you sold me hither; it was to save life that God sent me ahead of you… to ensure your survival on earth, and to save your lives in an extraordinary deliverance. So it was not you who sent me here, but God…”(Gen. 45:5-7) Joseph not only helped restore the relationship between them, he broke the cycle internecine struggles that plagued his family for three generations.  Never again do we here in the Torah children plotting evil against their siblings.

34 years ago, an oppressive man-made barrier was opened, offering freedom and reuniting families and friends.

If we’ve built walls of anger and separation between ourselves and others, the Lord is willing and able to help us begin tearing them down today.

 

 

 

Limited liability or full coverage? TB Baba Kama 48

When a person gives objects permission to enter his domain, what type of liability he accepts upon himself, limited or full liability coverage is the question the Gemara asks on daf TB Baba Kama 47b. “A dilemma was raised before the Sages: In a case where the owner of the courtyard accepted upon himself responsibility for safeguarding the items entering his premises, what is the halakha? Did he accept upon himself only the responsibility of safeguarding himself and his animals from causing damage? Or, perhaps he even accepted responsibility upon himself for safeguarding against all forms of damage that originate from the outside.” (Sefaria.org translation)

The Gemara brings case study after case study to determine whether the property owner as limited or full coverage liability to determine the halakha. Although the Gemara leaves this question inconclusive, I’ll share the story found on today’s daf TB Baba Kama 48.

“The Gemara relates that there was a certain woman who entered a certain house to bake. Subsequently, a goat belonging to the owner of the house came and ate the woman’s dough, and as a result it became overheated and died. Rava deemed the woman liable to pay compensation for the goat.

“The Gemara suggests: Shall we say that Rava disagrees with the opinion of Rav, as Rav says that in a case where someone brings in his produce to another’s courtyard without permission, and the latter’s animal is injured by eating it, the owner of the produce is nevertheless exempt, since the animal should not have eaten it.

“The Sages said in response: How can these cases be compared? There, in the case where someone brought in his produce without permission, he did not accept responsibility upon himself for safeguarding against the produce causing damage, whereas here, where the woman brought in the dough with permission, the woman did accept responsibility upon herself for safeguarding against the dough causing damage.

“The Gemara asks: And in what way is it different from the case of the baraita mentioned previously: In the case of a woman who entered the house of a homeowner without permission in order to grind wheat, and the homeowner’s animal ate the wheat, he is exempt? And moreover, if the homeowner’s animal was injured by the wheat, the woman is liable. The Gemara infers: The reason she is liable is specifically that she entered without permission, but if she entered with permission, she would be exempt.

“The Sages said in response: If she entered the house to grind wheat, since she does not require any privacy, the owners of the courtyard do not need to absent themselves from there, and the responsibility for safeguarding against damage therefore rests upon them. But if she enters to bake, since she requires privacy for this, as the process of kneading involves exposing her elbows, the owners of the courtyard absent themselves from there to allow her to bake. Therefore, the responsibility for safeguarding against damage to anything in the courtyard rests upon her.” (Sefaria.org translation)

The Tur poskins if a person brings something into the friends property and damage occurs which are not the property  owner’s fault; the property owner is exempt from liability until he accepts upon himself guarding the objects. The Tur explains this problem is not resolved and in a case of doubtful money, we decide leniently and do not make the property’s owner pay for damages. According to the Rif and the Rambam this question is only a problem for the sages and not for Rabbi Yehuda HaNasi who says back in the Mishna “Rabbi Yehuda HaNasi says: The homeowner is not liable in any of the cases in the mishna, even if he gave his permission for the items to be brought into his premises, unless he explicitly accepts responsibility upon himself to safeguard them.” (Sefaria,org translation) According to them, the halakha follows Rabbi Yehuda HaNasi. The Rama poskins that when the owner of the property gives permission it is as if he accepts responsibility; however if the ox just wanders onto his property, he is not liable at all until he accepts upon himself to safeguard it. (The Shulkhan Arukh, Hoshen Mishpat 398:5)

Extending Rava’s reasoning to abortion TB Baba Kama 47

The Mishna on yesterday’s daf presents a disagreement between Sumakhos and the sages. Sumakhos holds when there is a doubt of ownership in monetary matters, the litigants divide the money, “מָמוֹן הַמּוּטָּל בְּסָפֵק – חוֹלְקִין.” On the other hand, the rabbis teach, “But the Rabbis say that this is the significant principle of monetary law: The burden of proof rests upon the claimant, and the disputed sum is not divided.- הַמּוֹצִיא מֵחֲבֵירוֹ – עָלָיו הָרְאָיָה.” (Sefaria.org translation) Even though the halakha follows the rabbis, the Gemara spends a lot of time explaining Sumakhos’ position concerning the second half of the Mishna. “And likewise, there is uncertainty in the case of an innocuous cow that gored an ox, and the cow’s newborn offspring was found at its side dead or alive, and it is not known whether the cow gave birth before it gored the ox or whether the cow gave birth after it gored. When damage is caused by an innocuous animal, the liability of the owner is limited to the value of the animal that gored. Therefore, half the cost of the damage is paid from the value of the cow, as in the standard case of an innocuous animal. And if that does not suffice to pay for half the cost of the damage, one-quarter of the cost of the damage is paid from the offspring. Since it is uncertain whether the offspring was part of the cow at the time the cow gored, the owner pays only half of what he would pay if it were certain that it was part of the cow.” (Sefaria.org translation)

On today’s daf TB Baba Kama 47 we learn from Rava’s understanding, the Jewish approach to abortion.

“Rava said: Actually, the mishna is referring to a case where the cow and its offspring belong to one person, and this is what we are saying: The halakha is that with regard to damage caused by an innocuous animal, restitution is paid only from the money realized by selling the belligerent animal. Therefore, if the cow is here, half the cost of the damage is paid from the value of the cow itself; if the cow is not here, e.g., it went astray, only one-quarter of the cost of the damage is reimbursed from the offspring.

“The Gemara infers: According to Rava, the reason for paying only one-quarter of the cost of the damage is that we do not know if the offspring was with it, as a fetus, when the cow gored or whether it was not. But if it is obvious to us that the offspring was with it as a fetus when it gored, the full amount of half the cost of the damage may be reimbursed from the offspring if the cow is not there.

“The Gemara comments: In this respect, Rava conforms to his line of reasoning, as Rava says: In the case of a cow that caused damage while pregnant, the injured party collects compensation from its offspring, i.e., the offspring that had been a fetus at the time of the goring. What is the reason? It is because it is considered an integral part of its body (גּוּפַהּ הִיא) and therefore may be used to collect payment. By contrast, in the case of a hen that caused damage, the injured party does not collect compensation from its egg. Payment can be collected only from the body of the hen. What is the reason? The egg is simply a secretion and not an integral part of the hen’s body.” (Sefaria.org translation)

The fetus isn’t considered a separate entity, but an integral part of the mother’s body. Elsewhere in the Gemara this relationship is described “a fetus is considered as its mother’s thigh, i.e., a part of its mother,- עוּבָּר יֶרֶךְ אִמּוֹ הוּא ” (TB Baba Kama 78b and other places, Sefaria.org) Of course, there are those who hold that the fetus isn’t considered as its mother’s thigh. Because the Gemara on our daf doesn’t extend the sugiyah with the discussion of those who don’t hold that the fetus is part of his mother, the halakha follows Rava. Indeed Tosefot ד"ה  מַאי טַעְמָא? גּוּפַהּ הִיא

 poskins “a fetus is considered as its mother’s thigh, i.e., a part of its mother,- עוּבָּר יֶרֶךְ אִמּוֹ הוּא ” poskins like Rava.

Since the fetus is a part of the mother, Jewish law under some circumstances permits abortion. “Although a fetus is definitely a potential life, it is not considered an autonomous person with the same rights as fully viable human beings by Jewish law or tradition. Therefore, when the mother’s life is in danger, the Mishna (at M Ohalot 7:6) requires that the pregnancy be terminated and the mother’s life saved. (The principle that the fetus is not a human being is learned from a passage of the Torah that requires monetary damages from a man who strikes a pregnant woman and causes a miscarriage [Exodus 21:22-23]. If the fetus were a full human being, the offender would have been guilty of murder, yet the Torah holds him liable only for monetary damages. This was taken to demonstrate adequately that the fetus is not considered fully to be a human being.) ” (The Observant Life, edited by Cohen and Katz, page 621)

The Jewish view on abortion is complex with a variety of opinions where one may draw the line to protect the potential life of the fetus and when to permit abortions. Nevertheless, the bottom line is Jewish law does permit abortion.

The shor muad, a vicious dog, an unstable ladder, and sane gun laws TB Baba Kama 46

Today’ daf TB Baba Kama 46 provides the scriptural underpinning why Rabbi Eliezer holds that only slaughtering the ox is the only way to safeguard the owner from damage liability.

“(Abaye) said that this is the reason for the opinion of Rabbi Eliezer: As it is taught in a baraita that Rabbi Natan says: From where is it derived that one may not raise a vicious dog in his house, and that one may not set up an unstable ladder in his house? As it is stated: “You shall not bring blood into your house” (Deuteronomy 22:8), which means that one may not allow a hazardous situation to remain in his house. Similarly, a person should not keep a forewarned ox in his possession, as it is dangerous. This is why Rabbi Eliezer rules that no level of safeguarding is sufficient for it; the ox should be slaughtered so that it will not cause damage.” (Sefaria.org translation)

This is the second time in we have come across this baraita, however, I didn’t have time to comment on it. For those of us looking for a Jewish source to help us reduce gun violence in America we cite this baraita. A loaded gun or arms like a semi-automatic are even more dangerous than a vicious dog or an unstable ladder in a house. Sane gun laws would require proper care and storage of guns so that they won’t be accidentally misused by minors as well as adults. Similarly there is no reason for a non-soldier to own a semi-automatic rifle whose sole purpose is to kill as many people as possible in as short of time as possible.

“Most firearm-related homicides in the United States involve handguns.^[96][97][98] A 2019 Pew Research study found that 3% of US gun deaths were caused by rifles, a category which includes AR-15–style rifles.^[99] According to a 2013 analysis by Mayors Against Illegal Guns, 14 out of 93 mass shootings involved high-capacity magazines or assault weapons.^[100] Nevertheless, AR-15–style rifles have played a prominent role in many high-profile mass shootings in the U.S.^[101] and have come to be widely characterized as the weapon of choice for perpetrators of these crimes.^[102] AR-15s or similar rifles were the primary weapons used in half of the 10 deadliest mass shootings in modern American history:^[103][104] the 2012 Sandy Hook Elementary School shooting, the 2017 Las Vegas shooting, the 2017 Sutherland Springs church shooting,^[105] the 2018 Parkland high school shooting,^[106] and the 2022 Robb Elementary School shooting.^[107] The first time wherein an AR-15–style rifle was used in a mass shooting was in 2007, during the Crandon shooting, according to Mother Jones's mass shooting database.^[108][109] Gun expert Dean Hazen and mass murder researcher Pete Blair think that mass shooters' gun choices have less to do with the AR-15's specific characteristics but rather with familiarity and a copycat effect.^[110][111] According to the National Shooting Sports Foundation, there were an estimated 24.4 million AR-15s in private circulation in the United States in 2020. According to a 2021 Georgetown University poll of gun owners in the US, 24.6 million persons have an AR-15 or a comparable firearm in their possession.^[112]” (https://en.wikipedia.org/wiki/AR-15%E2%80%93style_rifle)

 

  

4 levels of shemira TB Baba Kama 45

Obviously if a person guards his ox appropriately, he is not held liable for damages. But what is that appropriate level of guarding? Although we have discussed the different levels of guarding (shemira-שְׁמִירָה) previously, daf TB Baba Kama 45 delineates four levels of shemira.

1.    “If the ox’s owner tied it with reins to a fence or locked the gate before it in an appropriate manner, but nevertheless the ox emerged and caused damage, whether the ox is innocuous (tam)  or forewarned (muad), the owner is liable, since this is not considered sufficient precaution to prevent damage; this is the statement of Rabbi Meir.” (Sefaria.org translation) The pen’s fence is not strong enough to withstand a stiff wind.  This shemira is called a reduced level of shemira (shemira pekhuta- שְׁמִירָה פְּחוּתָה). Consequently, both the tam and the muad need superior level of shemira (shemira me’ula-שְׁמִירָה מְעוּלָּה)

2.    “Rabbi Yehuda says that if the ox is innocuous the owner is liable even if he safeguarded it appropriately, since the Torah does not limit the required safeguarding for an innocuous ox. But if the ox is forewarned, the owner is exempt from paying compensation for damage, as it is stated in the verse describing damage by a forewarned ox: “And the owner has not secured it” (Exodus 21:36), and this ox that was tied with reins or behind a locked gate was secured.” (Sefaria.org translation) Rabbi Yehuda’s position is the most difficult to understand logically. Rabbi Yehuda understands that the tam’s starting point is shemira pekhuta. Since the owner of the tam still needs to pay for damages occurred with shemira pekhuta, he needs shemira me’ula to avoid damage liability. One principle that expounds the Torah is “one amplification following another amplification, and the principle is that an amplification following an amplification  is stated only in order to restrict its extent.( וְאֵין רִיבּוּי אַחַר רִיבּוּי אֶלָּא לְמַעֵט)” (Sefaria.org translation) Because the muad already begins at the level of shemira me’ula, the verse “And the owner has not secured it,” comes as the second amplification which has the effect of restricting is extent. Consequently, the muad only needs shemira pekhuta.

3.    “Rabbi Eliezer ben Ya’akov says: In the cases of both an innocuous ox and a forewarned ox in which its owner provided reduced safeguarding, he is exempt from liability.” (Sefaria.org translation)

4.    “Rabbi Eliezer says: An ox (muad-gg) has no sufficient safeguarding at all other than slaughtering it with a knife; there is no degree of safeguarding that exempts the ox’s owner from liability.”

 

Why are women included? TB Baba Kama 44

The first Mishna on daf TB Bava Kama 44 articulates the disagreement between the tana kama and Rabbi Yehuda. The tana kama makes no distinction between an ox that has an owner and an ox that is ownerless. If any kind of ox kills a person, the ox is put to death. On the other hand, Rabbi Yehuda holds that an ownerless ox is not put to death. “With regard to an ox belonging to a woman, and similarly an ox belonging to orphans, and an ox belonging to orphans that is in the custody of their steward, and a desert ox, which is ownerless, and an ox that was consecrated to the Temple treasury, and an ox belonging to a convert who died and has no heirs, rendering the ox ownerless; all of these oxen are liable to be put to death for killing a person. Rabbi Yehuda says: A desert ox, a consecrated ox, and an ox belonging to a convert who died are exempt from being put to death, since they have no owners.” (Sefaria.org translation)

The Rishonim wonder why the Mishna has to include a woman in this list since the verse the Torah equates men and women when comes to damages. Consequently, even without this Mishna we would assume that the woman who owns the ox that killed would be liable for all damages including the putting the ox to death. We have to answer the question why should what should be included in the Mishna’s list.

One possible answer is that the verse dealing in this case emphasizes men as opposed to other verses where the male language just means human beings. Consequently, we might draw the wrong conclusion. Rashi learns it from the phrase “the (male) owner of the ox, ba’al hashor-בּעל השור), meaning specifically only men. Tosefot learns this idea that limits the owner of the ox to an adult man from “וְכִֽי־יִגַּ֨ח שׁ֥וֹר אִ֛ישׁ” because the verse explicitly says man, אִ֛ישׁ. The Meiri explains that women are not knowledgeable in the guarding of an ox. One might draw the conclusion therefore their responsibilities concerning a going ox are limited.

What’s the difference between kofir and damim? TB Baba Kama 43

Out of a discussion between  Rabba and Abaye we learn that the owner of a shor tam doesn’t get off scott free when his ox unintentionally kills a person. “Rabba says: With regard to an ox that killed a freeman unintentionally (a shor tam-שור תם), its owner is exempt from paying ransom (כּוֹפֶר-kofir); as it is stated: “The ox shall be stoned, and its owner also shall be put to death. If a ransom is laid on him” (Exodus 21:29–30). This indicates that whenever the ox is liable to be killed by stoning the owner pays ransom; and if the ox is not liable to be killed by stoning the owner does not pay ransom.

“Abaye raised an objection to Rabba’s statement from a mishna: If a person admits: My ox killed so-and-so, or: My ox killed the ox of so-and-so, this owner pays based on his own admission (Ketubot 41a). This cannot be referring to the payment of a fine, as a person who admits his responsibility for an act incurring a fine is exempt from paying the fine. Clearly, it must be referring to a payment for which one can render himself liable through admission. What, is it not referring to the payment of ransom? If so, this proves that payment of ransom is not dependent on whether the ox is liable to be killed by stoning, as the ox cannot be killed based on its owner’s admission alone.

“The Gemara answers: No, it is referring to payment of the monetary value (damim-דָּמִים) of the victim. Although he is not liable to pay ransom, as the ox is not killed, nevertheless, since by his own admission his ox caused damage, he is liable to pay damages.” (Sefaria.org translation)

Rashi points out that the kofir’s purpose is to ransom the owners person’s life for otherwise he would be liable for the death penalty. Nevertheless, death is no less of a type of damage that the owner of the ox would need to pay.

The Rishonim wonder what’s the difference between kofir and damim for the end the owner of the ox still has to pay the relatives of the deceased person. From Rashi’s commentary we can draw the conclusion that if the person does not have money to pay the monetary fine, he is freed from heavenly punishment; however if he is obligated to pay kofir, he doesn’t receive the atonement until he pays it. Tosefot says if the owner of the ox who kills a person dies, his relatives still have to pay the damim, but are freed from paying the kofir. Another difference would be the ability of the deceased’s family to waive the payment of damim. The Raavad points out another difference. Kofir isn’t treated as a loan. It needs to be paid. Damim can be treated as a loan. Not only payments can be stretched over time, some of the payments can be forgiven.

  

What does “the owner of the ox is not to be punished” comes to teach us? TB Baba Kama 42

 As you well know, the rabbis did not believe that there are any extraneous words in the Torah. A little bit from yesterday’s daf and the majority of today’s daf TB Baba Kama 42 analyzes a seemingly extraneous phrase in the verse:

“וְכִֽי־יִגַּ֨ח שׁ֥וֹר אֶת־אִ֛ישׁ א֥וֹ אֶת־אִשָּׁ֖ה וָמֵ֑ת סָק֨וֹל יִסָּקֵ֜ל הַשּׁ֗וֹר וְלֹ֤א יֵאָכֵל֙ אֶת־בְּשָׂר֔וֹ וּבַ֥עַל הַשּׁ֖וֹר נָקִֽי:

When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished.” (Exodus 21:28)

Previously the Gemara concludes that the phrase “it’s flesh shall not be eaten” means nobody may not only eat the meat, but also may not derive any benefit from it. If that is the case what does the phrase “וּבַ֥עַל הַשּׁ֖וֹר נָקִֽי - the owner of the ox is not to be punished” comes to teach us? Four tannaim provides four different explanations what this phrase comes to teach us. Once again all quotes come from Sefaria.org) with my comments in italicized font.

1.    And according to Rabbi Abbahu, now that he derives the prohibition of eating and the prohibition of deriving benefit from the verse “Its flesh shall not be eaten,” why do I require the statement: “The owner of the ox shall be clear”? The Gemara answers: This is stated to prohibit deriving benefit from its hide after it has been killed; as it could enter your mind to say that it is specifically its flesh from which it is prohibited to derive benefit, as the verse states: “Its flesh shall not be eaten,” but deriving benefit from its hide will be permitted. Therefore, the Torah teaches us that the owner of the ox shall be clear, to indicate it is prohibited to derive benefit from any part of the ox.

2.    Rabbi Eliezer says: It means that he shall be clear from paying half a ransom. Although the owner of an innocuous ox that causes damage is liable to pay half the cost of the damage, if an ox kills a person its owner is not liable to pay any ransom.

3.    Rabbi Yosei HaGelili says: It means he shall be clear from paying compensation for miscarried offspring. In other words, if an innocuous ox causes a woman to miscarry, the owner is not liable to pay half the compensation for the miscarried offspring. Compensation four miscarried offspring is based on the Torah verses “When [two or more] parties fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage (i.e. death) ensues, the one responsible shall be fined according as the woman’s husband may exact, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life...” (Exodus 21:22-23) One might understand these penalties only apply to human beings and not oxen. If a shor tam causes a miscarriage, the owner is liable for all penalties. Consequently, “the owner of the ox is not to be punished” means he shall be clear from paying the compensation for the miscarried offspring.

4.    Rabbi Akiva says: This statement teaches that if an innocuous ox kills a Canaanite slave, its owner shall be clear from paying compensation for the slave, unlike the case of a forewarned ox that killed a Canaanite slave, where the ox’s owner is liable. When a Jew kills a Canaanite slave he pays the owner the fine of 30 shekalim whether the slave was worth one shekel or 100 shekalim. One might think that this fine only applies to humans, but an ox who murders a Canaanite slave pays the full value of the slave no matter how high it is. The phrase “the owner of the ox is not to be punished” is not fined at all.