Mem-Alef amud rishon (page 41, first side): zeh v'zeh (this one and this one), chayavin mitah (both are liable to death). We learned in the Mishnah that when a shor, an ox, gores a man and kills him, whether the shor is a mu'ad (forewarned) or a tam (unforewarned), the shor is put to death. The shor gets sekilah (stoning).
The Gemara says: Tanu Rabbanan (the Rabbis taught), “Mimmashma shene'emar (from the words that say), ‘sakol yissakel hashor’—You stone it.” Do I not know that it is a neveilah—the animal is a neveilah—and a neveilah is asurah ba'achilah (forbidden to eat)? If it is stoned, it was not slaughtered properly, so it is a neveilah. Why, then, does the pasuk (verse) say, “lo ye'achel et besaro—you can't eat the meat”? Of course you can't eat the meat! If it was stoned, it was not slaughtered properly. The Torah does not have to tell me that its meat cannot be eaten; it was already stoned to death.
Maggid lecha hakatuv (the verse tells you)—a chiddush (novel point): she'im shechato le'achar shenigmar dino. Let us say they judged the animal chayav mitah (liable to death), but before they stoned it, they slaughtered it. It is still forbidden to eat. The chiddush is that even if they slaughtered the animal properly before stoning it, after gmar din—after it had already been judged—the Torah still tells you, “lo ye'achel et besaro.” I do not need a pasuk to tell me that you cannot eat the meat after the animal has been stoned to death. Of course you cannot eat it; it was not slaughtered properly. The chiddush is that even if you slaughtered it properly beforehand, the animal still cannot be eaten.
Ein li ela ba'achilah (I have learned only that it is forbidden to eat); bahana'ah minayin? Achilah (eating) is forbidden. How do I know that I cannot even have hana'ah—benefit—from the meat? The Talmud teaches, “u va'al hashor naki”—the owner of the shor is clean. What does “clean” mean? Mai mashma (what does it imply)? Shimon ben Zoma says: ke'adam she'omer lechaveiro, yatza ish peloni naki min'chasav. It is like someone saying to his fellow, “So-and-so left without property”—he's cleaned out, with no benefit at all. So “u va'al hashor naki” means that he has no benefit; he is completely wiped out and cannot benefit from it at all.
The Gemara asks: Umimmai d'lo ye'achel et besaro—who told you that the pasuk “lo ye'achel et besaro” is discussing a case leheicha d'shechato le'achar shenigmar dino, where you slaughtered it after gmar din and it is forbidden to eat? Maybe the case is deheicha d'shechato le'achar shenigmar dino shari ba'achilah: perhaps when it says “lo ye'achel et besaro,” it is not referring to eating. Maybe lo ye'achel means that you may not have hana'ah, since sometimes achilah is interchangeable with hana'ah, as we will see in a moment.
Perhaps the pasuk is saying that if you slaughtered it properly, you can eat it, but you cannot have hana'ah from it: you cannot sell it or derive benefit from it in that way. V'hai lo ye'achel et besaro, as the Gemara will explain, is talking about leheicha d'saklo miskal, a case where it was stoned and is forbidden to benefit from. Perhaps, then, if you slaughtered it properly, you can eat it, sell it, and do whatever you want with it. Maybe lo ye'achel means lo yehaneh: you may not benefit from it, in the case where it was stoned. We know that you cannot eat it after sekilah; perhaps “lo ye'achel” is teaching that you cannot even sell the meat.
The Gemara says: How do you know? Like the rule of Rabbi Abbahu, who said in the name of Rabbi Elazar: “Kol makom shene'emar lo ye'achel, lo tochal, lo tochelu”—whenever the Torah uses one of these three expressions, it can mean either a prohibition against eating or a prohibition against benefit, ad sheyifrot lecha hakatuv (unless the verse specifies for you), as it does by neveilah. The Torah clearly says that you may give neveilah to a goy (non-Jew). It says, “lager binetinah ule'oved kochavim bimchirah”: you can give it to a ger (convert) as a gift, and you can sell it to an oved kochavim. Therefore, lo tochelu there must mean specifically that eating is forbidden. But ordinarily, achilah can mean both a prohibition against eating and a prohibition against benefit.
So go back: what if the pasuk is telling me that a shor haniskal (an ox sentenced to stoning), because it killed somebody, cannot be eaten? I know that already; I do not need a pasuk for that. Maybe lo ye'achel means that you cannot even benefit from it, and maybe if you slaughtered it properly, you can eat it and benefit from it. Who told you that lo ye'achel is referring to eating? We know Rabbi Abbahu's rule: whenever the Torah says lo tochelu or lo tochal, it can mean benefit as well.
The Gemara answers: “Amrei, hanei milei heicha denafik leih issur achilah ve'issur hana'ah mikra, mi'lo ye'achel.” That is when you derive both the prohibition against eating and the prohibition against benefit from lo ye'achel. If lo ye'achel already means “do not eat,” then you can also include “do not benefit.” “Aval hacha de'issur achilah misakol yisakel nafka”: here, I do not need lo ye'achel to teach the prohibition against eating. I know that from “sakol yissakel,” because you cannot eat the animal after it was stoned.
“Ei salka da'atach hai lo ye'achel leparoshei issur hana'ah hu”—if lo ye'achel were coming to teach specifically a prohibition against benefit, the Torah should have written lo yehaneh. The word lo ye'achel can teach both “do not eat” and “do not benefit.” But if the Torah were teaching only “do not benefit,” it would not use lo ye'achel. Since I already know from sakol yissakel that I cannot eat it, this word lo ye'achel must be teaching specifically that eating is forbidden. And since I do not need it to teach that eating is forbidden in the case where the animal was stoned, it must be discussing a case where it is forbidden to eat even if it was slaughtered properly, as we originally thought.
Ei nami, here is another reason why lo ye'achel cannot mean benefit. Why does the pasuk say “lo ye'achel et besaro”? It could have said just lo ye'achel. What do you need the words et besaro for? They are extra. If the Torah were telling you not to benefit from it, it could simply say lo ye'achel. The words et besaro teach me something: de'af al gav de'avdeih ke'ein basar, even though you made it like meat that is normally edible—kegon, for example, deshachteih, you slaughtered it—it is forbidden. From the words et besaro I know we are talking about a case where you slaughtered it properly. Et besaro means meat that is viable, meat that is normally eaten. What is meat that is normally eaten? Meat from an animal that was slaughtered. So from et besaro, we learn that the pasuk is discussing a case where it was slaughtered properly, and it still says lo ye'achel.
So now we have learned two things: a shor haniskal is certainly forbidden to eat, and I do not need a pasuk for that. Even when you slaughtered it properly after gmar din, it is still forbidden to eat. That is what “velo ye'achel et besaro” teaches.
The Gemara says not to take this for granted. It asks: Eima hanei milei heicha devedak tzur. Maybe it is forbidden to eat the animal only when you checked a rock. There are many ways to perform shechitah (ritual slaughter). One way is with a rock: take a rock, sharpen it, and check that there are no pegimot, no ridges, in the stone itself. Maybe the case is heicha devedak tzur veshachat bo, where you slaughtered the animal with a rock, de'avdeih ke'ein sekilah, in a way resembling sekilah. For sure, you cannot eat an animal that was stoned. Perhaps the Torah is telling you that even when you slaughtered it properly, you cannot eat it if you slaughtered it ke'ein sekilah, using a rock.
But aval heicha deshachteih besakin, in a case where you used an ordinary knife, lo, maybe not. The Gemara is suggesting that different forms of shechitah may have different outcomes: perhaps shechitah besakin is permitted, since the Gemara assumes that slaughtering with a knife is a better form of shechitah than using a rock. If you used a rock, that resembles sekilah, and perhaps that is what the Torah is telling you is forbidden.
The Gemara says: Amrei, atu sakin ketiva be'oraita? Who told you that the Torah specifies which instrument you use for shechitah? The Torah does not mention a knife or a rock. Are you saying a knife is better than a rock? No instrument is specified in the Torah. We learned in the Mishnah: “Hashochet bemagal yad, betzur, uvekaneh”—one who slaughters with a hand sickle, a rock, or a reed—“shechitato kesherah.” The Torah does not distinguish between the instruments used. Therefore, if you slaughter the animal, it is forbidden no matter how you slaughter it. Even if you slaughter it with a knife, you will not be able to eat it.
The Gemara continues: “Vehashta denafka lei issur achilah ve'issur hana'ah milo ye'achel et besaro”—now that you are saying that “velo ye'achel et besaro” teaches that if you slaughtered it properly, you may not eat it and may not benefit from it, all the more so, if it was stoned, you may not benefit from it. So why do we need “ba'al hashor naki”? We learned earlier that it means the owner is cleaned out. But I do not need it anymore: you already told me that even if I slaughtered it properly, I may not eat it or benefit from it. If I cannot benefit from it when I slaughtered it properly, certainly I cannot benefit from it when I stoned it. What, then, does “ba'al hashor naki” teach? I already know from the other pasuk that the owner is cleaned out.
The Gemara says: “Lehana'at oro”—it teaches that there is no benefit even from the hide. I might have thought that only the meat is forbidden to benefit from, but the hide is permitted. “Desalka da'atcha amina besaro hu de'asur behana'ah, aval oro nishtarei behana'ah”: I would have said that the meat is forbidden to benefit from, but the hide is permitted, since the pasuk only said besaro. The words ba'al hashor naki teach that he is completely cleaned out and cannot benefit even from the hide.
“Vehanech tanna'ei demafkei lei lehai ba'al hashor naki lidrashah acharina kideba'inan lemeimar kaman, hana'at oro mena lehu?” We will see later in the Gemara another derashah on the words ba'al hashor naki. If those words are used for another derashah, how do we know that the animal's hide is forbidden? We need to learn that from somewhere else. It comes from et besaro, because the pasuk says “velo ye'achel et besaro.” Et is an extra word: et hatafel levisaro, the thing that is subordinate to the meat. What is subordinate to the meat? The hide. That works only if you expound the word et. There is a major machloket (dispute) throughout Shas about whether to expound the word et. The Gemara says: “Vehai tanna, et lo darish”—the other sage, who learns the teaching from ba'al hashor naki, does not expound et. He does not learn it from et besaro because he does not expound et.
How do we know? We have a beraita about whether one expounds the words et in the Torah. Shimon HaAmsoni—and some say Nechemya HaAmsoni—“hayah doresh kol itin shebatorah”: he would expound every et in the Torah. Whenever the word et appeared, he gave a derashah (homiletical interpretation). When he reached “et Hashem Elokecha tira”—you have to fear God—“peirash”: he refrained. He had understood every et in his theory to include something. Who else could you fear besides God?
His students said to him, “Rabbi, kol itin shedarashta mah tehe aleihen?” What will happen to all the derashot you already made? He answered them: “Keshem shekibalti sachar al hadrishah, kach kibalti sachar al hapirishah.” Just as I received reward for searching for the truth and making these derashot, I will receive reward for refraining. According to this theory, if it does not work once, then my theory was wrong: the word et is obviously not always coming to include something. God will reward me for my intellectual honesty in refraining. What we see is that Shimon HaAmsoni did not ultimately hold of the et theory. He was the one who proposed it, but when he saw that it did not work, he said it must not be emet (truth). Since he refrained when he reached “et Hashem Elokecha tira,” he thought his theory was flawed. Therefore, he would learn the hide from “u va'al hashor naki,” not from et.
But who does hold of the et theory? The Gemara says: “Ad sheba Rabbi Akiva velimed, ‘Et Hashem Elokecha tira,’ lerabbot talmidei chachamim.” When it says, “Et Hashem Elokecha tira,” what does fearing God include? Not only God, but also talmidei chachamim—Torah scholars. “Et” comes to include Torah scholars. So if you hold of the et principle, you can expound et besaro to teach et hatafel levisaro. If you do not hold of the et principle, you learn it from “u va'al hashor naki.”
The Gemara continues: Tanu Rabbanan, “Uva'al hashor naki.” Rabbi Eliezer says, “Naki mechatzi kofer.” Here is the law: a tam that damages pays chatzi nezek (half-damages), while a mu'ad pays nezek shaleim (full damages). That is in a case of damage. A mu'ad shor that kills has to pay kofer—a payment to the heirs of the person who was killed. The Torah does not say that a tam that kills pays kofer.
The Gemara now suggests that “u va'al hashor naki” teaches that when a shor tam kills, the owner is clean: he does not have to pay half kofer. You might have thought that just as a tam that damages pays chatzi nezek, there is also such a thing as chatzi kofer, and the owner must make a payment. The Gemara says there is no such thing as chatzi kofer. That is Rabbi Eliezer's chiddush.
Rabbi Eliezer says, “Naki mechatzi kofer”—the owner is clean and does not even have to pay half kofer. Rabbi Akiva says to him: “Vehalo hu atzmo ein mishtaleim ela migufo.” Where does the chatzi nezek payment come from? It is paid migufo (from its body). To review that terminology: you do not pay more than the worth of the animal itself. If the damage was 1,000, chatzi nezek is 500, but the animal is worth 200, you take the animal; you do not have to pay more than the animal itself is worth. Chatzi nezek is paid migufo.
Rabbi Akiva says, “Havi'eihu lebeit din veyeshaleim lecha”—bring it to court, and I'll pay you. In this case, where a tam killed, what do you do with the animal? You kill it. If it had gored and damaged, chatzi nezek would be paid only migufo. Here, where the animal is being killed, let the owner of the shor say, “You want me to pay chatzi kofer? No problem. Bring the animal to beit din (court), and I will pay you migufo.” How could you think for a moment that the owner would have to pay chatzi kofer? Since the payment comes from the animal, just as chatzi nezek does, Rabbi Akiva says, chatzi nezek is paid from the animal's body. Here the animal is dead, so let the owner say, “You want me to pay chatzi kofer? Bring me the animal to beit din and I will pay you. But you already stoned it to death!”
There is no hava amina (initial assumption) that the owner would have to pay chatzi kofer, since all half-payments come from the animal itself, and here there is no animal: it was killed. If you compare this to chatzi nezek, the owner will never have to pay out of pocket. Chatzi nezek is migufo shel habehemah. Rabbi Akiva asks Rabbi Eliezer: What was your hava amina that the chiddush is that he does not pay chatzi kofer? How would he pay it? Chatzi kofer would come from the animal itself. Let the owner say, “You want me to pay chatzi kofer? Bring the animal to beit din and I will pay you.” But where is the animal? You stoned it. So there is nothing to discuss.
Rabbi Eliezer answers: “Kach ani be'einecha?” Am I so insignificant in your eyes that you thought that was what I meant? “Shedini baze shechayav mitah, ein dini ela keshehemit et ha'adam al pi ed echad.” Do you think I was talking about a case where the animal is actually being killed? I know that if the animal is being killed, there is no hava amina of chatzi kofer. My case is where the animal killed a person, but there was only one witness, or al pi be'alim—the owners themselves admitted to it. The Gemara's assumption now is that if an animal kills and there is only ed echad (one witness), the animal is not killed. So it is still alive, and then you could consider whether there is chatzi kofer. I was not talking about a case where the animal is stoned to death. Give me the benefit of the doubt. I was talking about a case where there was one witness, or where the owner admitted that the animal gored or killed. In either case, the animal is not killed.
The Gemara says: Hold on—al pi be'alim? Where is your case? If the owners themselves admitted that the animal killed, that is modeh be-knas (one who admits to a penalty). If we hold that kofer is a knas (penalty), then we have a rule: modeh be-knas (one who admits to a penalty) patur (exempt). You gave me a case where the animal is not killed, but there is still no reason to think the owner must pay chatzi kofer. What is the case where the animal is not killed? The owner himself admitted that it killed. But then there is no kofer at all; that is modeh be-knas.
Rashi says that we could have asked the same question about ed echad: you never take money from someone based on one witness. To take money from someone, you need two witnesses. So you gave me a case where the animal is not killed, but there is still no reason to think the owner has to pay chatzi kofer. If he admitted it himself, he is patur; if there is one witness, you do not take money from a person based on one witness.
Rabbi Eliezer holds, “Kasavar kufra kaparah”: kofer is a kaparah (atonement), not a penalty. You pay it regardless, because the person wants atonement. That is Rabbi Eliezer's chiddush: the pasuk “ba'al hashor naki” teaches that you do not have to pay chatzi kofer.
Tanya idach, there is another beraita. Rabbi Eliezer makes the same argument about chatzi kofer and ba'al hashor naki: the owner does not have to pay chatzi kofer. Rabbi Akiva says to him, “Akiva, kach ani be'einecha?” Rabbi Eliezer asks: Am I so insignificant in your eyes that you do not give me the benefit of the doubt? “Shedini baze shechayav mitah?” Did you think I was talking about a case where the animal was killed? Chatzi kofer is like chatzi nezek migufo. Here there is no guf; the animal is dead.
Rabbi Eliezer says, “Ein dini ela bemitkaven laharog et habehemah veharag et ha'adam.” I am giving you a special case where the animal was mitkaven (intending) to kill an animal, but instead killed a person. Or it was intending to kill a Mitzri (Egyptian) but killed a Yisrael (Israelite). Or it was intending to kill a nefel—a child that will not live—but killed a ben kayama (viable child). In these cases, the animal is still alive. If the animal intended to kill someone for whom it is patur, but ended up killing someone else, you do not kill the animal. The animal is killed only when it was mitkaven to kill the person it killed. In that case, where the animal is still alive, Rabbi Eliezer says you might have thought there was chatzi kofer. The teaching is that there is not.
So there are two versions of the story. In the first version, Rabbi Eliezer says, “I am talking about a case where the animal is still alive because there was only one witness.” In the second version, he says, “I am talking about a case where the animal is still alive because it was not mitkaven to kill the person it killed.” The Gemara asks: Hei amar leh bereisha? How did this conversation go? Which proof came first, and which came second? Was it as we have it—that first he said it was a case with one witness, and then he gave the case where the animal intended to kill one person but killed another? What was the order in which Rabbi Eliezer replied to Rabbi Akiva?
Rav Kahana mishmei deRava says: “Mitkaven amar leh bereisha.” The case of mitkaven came first. Rav Tabyomi mishmei deRava says: “Hemit amar leh bereisha.” No, he first gave the case of hemit, the first proof.
Let us discuss which is the better proof. The Gemara assumes the second proof is stronger. Rabbi Akiva asked, “What are you talking about? The animal is dead.” Rabbi Eliezer replied, “I am talking about a case where it was mitkaven to kill this one and killed that one.” Then the animal is still alive. Rabbi Akiva could accept that. But with the first approach, Rabbi Akiva could still ask: “How is the animal still alive? The owner admitted it.” “Modeh be-knas patur.” Rabbi Akiva was still challenging the first proof. So the machloket is about what happened first in the conversation. One view says Rabbi Eliezer first brought the weaker proof, was challenged, and then said, “I have a better proof: the case of mitkaven.” The other view says he gave the strong proof first and then said, “There is another one as well, if you want; I can even give you a smaller proof.” The Gemara explains the two views.
Rav Kahana mishmei deRava says that mitkaven came first, and he gives a mashal (parable): “Mashal detzayad shesholeh dagim min hayam.” It is like a fisherman fishing in the sea. “Mashkach ravrevei shakil”—he finds a big fish and takes it. “Zutrei shakil”—if he finds a small fish, he takes it too. First he takes the big fish. If he finds a small one afterward, he takes that as well. So Rabbi Eliezer first gave Rabbi Akiva the big fish, the strong proof: “I am talking about a case where the animal intended to kill this one but killed that one.” The animal is still alive. After giving him the strong proof, he added, “There is also a small fish here. I can give you a proof with holes in it, but I will give it to you too.”
Rav Tabyomi mishmei deRava says that the case of hemit came first: the animal killed, but the case was al pi ed echad. The mashal is: “Letzayad shesholeh dagim min hayam”—a fisherman fishing in the sea. “Mashkach zutrei shakil”: he finds small fish and takes them. That is all he has, so he takes the small fish. Then he finds a big fish, but he has no room in his sack for it. What does he do? “Shadi zutrei, veshakil ravrevei”—he throws the small fish back and takes the big one. First Rabbi Eliezer gave the weaker proof, then said, “I have a better proof. Forget what I said first; now I will give you the big one.”
So the machloket is about exactly how the conversation took place. But either way, what is Rabbi Eliezer's bottom line? The pasuk “ba'al hashor naki” teaches that there is no such thing as chatzi kofer. When a tam kills, you kill the animal, and there is no chatzi kofer. Even in a case where you are not going to kill the animal—such as when there is only one witness, the owner admitted it, or it was mitkaven to kill someone for whom it is patur but killed a Yisrael—there is still no such thing as chatzi kofer.
So where does Rabbi Eliezer learn hana'ah? From the et. That is back to the point we already answered above: the one who learns from ba'al hashor naki needs the et for the hide. The first proof is weaker because not everyone holds that kofer is kaparah. Right, that is correct: the answer that kofer is kaparah works according to that view. Exactly. That's the point. Why do you necessarily say that he is patur from kofer? You cannot take money from a person based on one witness anyway. Right, that was the problem. The question about both cases was one was evident facts, and number two was ed echad. That was not the question; the question was kaparah. If it is kaparah, you would pay even with ed echad.
“That's what's swordfish.” Even though—why do you necessarily say that he is patur from kofer? You cannot extract money from a person based on one witness anyway. “One was evident facts.” And number two, ed echad. That was not the question; the question was kaparah. If it is kaparah, you would pay for ed echad.
How do they judge the animal's intention? Goring, goring! It is going straight at it, correct? No, if the first couple of times—No, but you see it going after him. In the case of the nefel or the viable child, “two babies in his Yeah”: he was going after a nefel and the baby moved. The witnesses will say, “We know he was not going after that child; he was going after that person, but he moved out of the way.”
Bava Kamma, daf Mem Bet (page 42). Today's daf is being studied le-ilui nishmat Boris ben Genya and Yosef ben Sultana, zikhronam li-verakhah, tehe nishmatam tzrurah bi-tzror ha-chayim; and for the complete healing of Mordechai ben Ester. Hashem yirachem aleihem, yirpa'em veyachlimem, yishlach lahem refu'ah shelemah min hashamayim, refu'at hanefesh urefu'at haguf, hashta ba-agala u-vi-zman kariv, ve-khen yehi ratzon ve-nomar amen.
Today's daf is also being studied li-refu'ah shelemah Natan ben Shulamit: “El na refa na lo (God, please heal him), El na refa na lo, El na refa na lo,” zekhut ha-tzaddikim yagen ba'ado, hashta ba-agala u-vi-zman kariv, ve-khen yehi ratzon ve-nomar amen. Amen.
We are on Mem Bet amud rishon, starting five lines down, at tanya idach. We have a beraita. We are in the sugya (Talmudic discussion) of learning the pasuk of ba'al hashor naki. Let us get the context. The Torah told us about a case where a shor tam gored a person and killed him. What do you do to the animal? You kill it; that is for sure. Is there kofer? No. Is there chatzi kofer? No. Now the Gemara will expound something else from the words ba'al hashor naki.
So far, we have two derashot (homiletical interpretations). One derashah is that ba'al hashor naki means the owner of the shor is cleaned out: he cannot benefit at all from the animal, even from the hide. The other derashah is that ba'al hashor is naki means he is off the hook and does not have to pay half kofer. Now we will see another derashah of what ba'al hashor naki teaches.
Tanya idach, we have another beraita: “Ba'al hashor naki.” Rabbi Yosei HaGelili says, “Naki mi-demei veladot.” This is a new case. Let us say the animal gored a woman who was pregnant, the babies came out, and she miscarried as a result. In that case, ba'al hashor naki: the owner of the animal does not have to pay for the miscarried babies.
In the case of a human being, the Torah says that two people are fighting, one moves out of the way and hits a woman, and she miscarries. The Torah clearly says that the person who landed the blow has to pay for the children. The chiddush is that when a shor does the same thing—gores a pregnant woman and causes her to give birth to a stillborn child, or to miscarry—the owner does not have to pay for the babies. That is Rabbi Yosei's chiddush about ba'al hashor naki.
Rabbi Akiva says to him, “What do you need that for, Rabbi? Harei hu omer: ‘Ki yinatztzu anashim.’” The Torah clearly says that when two men fight and one hits the woman, he has to pay. The Torah says “anashim velo shevarim”—men, and not oxen. So you do not need the pasuk ba'al hashor naki; I can learn it from the diyuk (precise textual inference) of ki yinatzu anashim velo shevarim. Your derashah is superfluous.
The Gemara says: “Shapir ka'amar Rabbi Akiva”—Rabbi Akiva made a good argument against Rabbi Yosei. Rav Ula bereih de-Rav Ili says: “Itztarich”—you need both pesukim. I need ki yinatzu anashim and the pasuk ba'al hashor naki. If I had only ki yinatzu anashim, I would not know that an animal that gores does not have to pay for the children. Salka da'atach amina: anashim velo shevarim hadomin le-anashim. I would say that men have to pay, but not oxen that are similar to men.
What does it mean that animals are similar to people? Mah anashim mu'adim—aren't human beings mu'ad? We have the rule “adam mu'ad le'olam”: a man is always responsible. There is no chatzi nezek for a person; if you cause damage even the first time, you are responsible. Af shevarim mu'adim: so too, I might think that the Torah is telling me that a shor that is a mu'ad, like a man, does not have to pay for the children. Ha tam mechayev: but I might have thought that a tam does have to pay.
Learn the derashah this way: ki yinatzu anashim means only men who fight and hit the woman have to pay for the children. An ox like a man—an ox that is a mu'ad—does not. That implies that a tam that gores a woman does have to pay. Ka mashma lan: ba'al hashor naki teaches that even a tam does not pay.
Rava says this makes no sense: “Yetziva be'ar'a vegiyora bishmei shemaya?” Is the citizen on earth and the stranger in heaven? You are making the stranger higher than the citizen; you are making the tam stricter than the mu'ad. You want to say that the pasuk teaches that a mu'ad does not have to pay demei veladot, but a tam does? If a mu'ad does not have to pay for the children, certainly a tam does not. The logic is reversed. So that cannot be the explanation.
We are back to the question in this sugya. The question is: Rabbi Yosei HaGelili, you tell me that ba'al hashor naki teaches that there are no demei veladot. What do you need that for? I know it from the diyuk of ki yinatzu anashim, anashim velo shevarim.
Rava gives another answer: “Itztarich.” You need it. Salka da'atach amina: anashim velo shevarim hadomin le-anashim. I might think, again, that the verse means men, but not oxen that are similar to men. Mah anashim mu'adim, af shevarim mu'adim, ve-kal vachomer letamim: I would say that a mu'ad is similar to a person, and all the more so, a tam is patur. Hadar ketiv Rachmana ba'al hashor naki: then the Torah writes ba'al hashor naki to teach me that a tam is patur and a mu'ad is chayav.
The case of ba'al hashor naki was talking about a tam animal. The pasuk is learned this way: when it says ki yinatzu anashim, what kind of anashim have to pay demei veladot? Only men. It excludes shevarim that are similar to men, meaning a shor mu'ad. All the more so, a shor tam would be patur from demei veladot. The second pasuk, ba'al hashor naki, teaches that only the tam is patur, while the mu'ad is chayav. That is a big chiddush; it changes everything. You are saying that only a tam is patur, but a mu'ad is chayav. I do not like it.
Abaye says to him: “Ela me'atah, gabei boshet nami neima hachi.” By boshet (embarrassment damages), let us say the same thing. Two people are fighting, and one embarrasses the other. We learned that you have to pay boshet. Only a human pays when he embarrasses someone, not an animal. The pasuk about boshet also uses similar language, anashim. So why not make the same derashah: anashim velo shevarim hadomin le'anashim? By boshet, too, it says anashim. I would say that only people pay boshet, not oxen that are similar to people. Mah anashim mu'adim, af shevarim mu'adim, ve-kal vachomer letamim depatirei. Then the Torah says ba'al hashor naki, tam patur and mu'ad chayav. Apply the same derashah to boshet, and the result would be that a shor mu'ad is chayav boshet.
At this point the Gemara is assuming that this cannot be right; since when does an animal pay boshet? But the Gemara considers it. Vechi teima hachi namei: if you want to concede that it is so, just so everything works out, and tell me that a mu'ad's owner also has to pay boshet, it still does not work. “I hachi, litnei ba'al hashor naki, Rabbi Yosei HaGelili omer: patur midmei veladot umiboshet.” When Rabbi Yosei HaGelili made his statement, he should have said two things: ba'al hashor naki, the owner is patur from paying for the children and patur from boshet. Since he did not say boshet, it is obviously not the same. According to your derashah, ba'al hashor naki means only when the animal is a tam. When it is a mu'ad, you pay for the veladot. If that is how you learn it, the same formula should apply to boshet: a tam does not pay, but a mu'ad does. He should have said, “Ba'al hashor naki, patur midmei veladot umiboshet.” Since he did not mention boshet, he must not be learning that formula. We have to go back to the drawing board.
The question is still the same. Rabbi Yosei, you told me a beautiful chiddush: when the shor gores the pregnant woman and the babies come out, you do not pay for the babies. What do you need that for? The verse says anashim, anashim velo shevarim. I do not need your derashah.
Rava and Rav Adda bar Ahavah give another way to learn it: “Anashim, ein ason ba'ishah ya'aneshu.” The Torah says, in the case of two men fighting and hitting a woman, “velo yihyeh ason.” That means they have to pay for the children only if the woman does not die—if there is no ason, no catastrophe. If the woman dies, the law is that they killed somebody, and you cannot kill someone and make him pay as well. “Kam leh bidrabbah mineh”: the killer receives the greater punishment, and he does not have to pay.
So, in the case of a man, davka lo yihyeh ason—only when nobody died do you pay for the veladot. But yesh ason ba'ishah, if there is an ason involving the woman, lo ya'aneshu; that is the law for men. “Velo shevarim”: oxen are different. De'af al gav de'yesh ason, even if there is an ason and the ox kills the woman, ya'aneshu: they pay for the veladot.
This version of the Gemara is saying a big chiddush. It wants to say that whether the woman died matters only in the case of men. I would say that with oxen, even if the ox killed the woman, the owner still has to pay for the veladot. Then the Torah writes ba'al hashor naki to teach that in the case where the woman was killed, the owner could be patur. Understand what we are learning? Rabbi Yosei's chiddush would be that if the woman dies in a case involving a man, we know the man is killed. But with an animal, I would have thought that even if it killed her, the owner still has to pay demei veladot. Ka mashma lan: ba'al hashor naki teaches that in that case he does not have to pay.
Rav Adda bar Ahavah immediately challenges this: “Atu be'ason talya milta?” You are making the whole matter depend on whether the woman died or did not die. “Bekavanah talya milta”—the whole issue depends on intention. Look at Rashi. “Atu be'ason talya milta?” Whether she died is not the key. “Bekavanah talya milta.” Let us read this together: even if there is an ason and the woman dies, there is a case where they still pay for the veladot.
For example, let us say the man who killed the woman was mitkaven for somebody else. He was trying to hit his friend; the friend ducked, and the blow killed the woman. Even though she died, they pay, because this view holds that you do not put someone to death for killing a person unintentionally. Therefore, whether she died is not what matters. I can give you a case where she died and the man still pays: he was intending to hit A, but A ducked and he ended up hitting the woman. He was not kavanat to be shevirah, and therefore he does not receive the death penalty; he still has to pay.
Rashi says: “Afilu yesh ason be'ishah, ye'anshu im mitkaven lechavero.” Even if the woman dies, they pay if he was intending to hit his fellow. This view follows Rabbi Shimon, who holds that a person who was intending to kill one person but killed another is patur from the death penalty. There is a major machloket in Sanhedrin. What do you say about someone who was mitkaven laharog zeh veharg et zeh? One opinion says he is chayav mitah because he intended to kill; it does not matter that he killed the wrong person. Rabbi Shimon says that to be chayav mitah, you have to have intended to kill this person and killed this person. If you intended to kill A and ended up killing B, you are patur from the death penalty. This view follows Rabbi Shimon.
Rashi continues: “Vecheivan de'anashim, heicha deyesh ason nami ye'anshu.” It comes out that with two men fighting, there is a case where even if the woman dies, they pay. “Eshtakach deha dami'et shevarim bein yesh ason bein she'ein ason”: it turns out that when two men fight, they pay whether there is an ason or not. So by shevarim, it does not matter whether they kill or not; they will not have to pay for the veladot. What do you need ba'al hashor naki for?
I will repeat that last point. The Gemara asks: Rabbi Yosei, you told me that ba'al hashor naki teaches that you do not pay for the veladot. But the verse says anashim, anashim velo shevarim. I might have thought that men pay only when the woman does not die; if she dies, they do not pay. But with shevarim, I might have thought they always pay, whether the woman dies or not. Ba'al hashor naki teaches that this is not so, because even human beings pay whether there is an ason or not. It depends on kavanah (intention). So if the men always pay, then the verse's exclusion of shevarim means that the animals never pay. What, then, do I need ba'al hashor naki for? We are back to the drawing board.
The Gemara concludes: “Ela, ked'amar Rav Adda bar Ahavah.” Anashim: when two men fight, “ki nitkavnu zeh lazeh”—they intended to kill each other—even if there is an ason and the woman dies, ye'anshu; they pay. If they intended to kill one person but killed another, they are patur from the death penalty, and they have to pay. But “ki nitkavnu la'ishah atzmah,” if they intended to kill the woman herself, lo ye'anshu: that is the law for men.
“Velo shevarim”: with oxen, de'afilu nitkavnu la'ishah atzmah, even if they intended to kill the woman herself, ya'anshu. That is a big chiddush. In this version, the chiddush is that if people intended to kill the woman, they are patur from payment because kam leh bidrabbah mineh; the greater punishment applies. But that is the law for anashim, not shevarim. If the ox intended to kill the woman, you might still have to pay. The Torah writes ba'al hashor naki to teach that they are patur.
The final version of Rabbi Yosei HaGelili's teaching is this: if a shor intentionally went and gored a woman, and there were veladot, you might have thought that the owner has to pay. Only in the case of a man, anashim, would he not pay, because kam leh bidrabbah mineh and the man receives the death penalty. But perhaps with an animal, even in that case, he would pay. Ka mashma lan: ba'al hashor naki teaches that he does not pay.
And when Rav Chaggai came from the south, from the south of Israel, to Bavel, he brought a beraita with him that supported the view of Rav Adda bar Ahavah. It said that ba'al hashor is naki in a case where the animal intended to kill the woman. In the corresponding case involving a human being, he is certainly patur. So you might have thought that with an animal, the owner is chayav. Ka mashma lan: ba'al hashor naki teaches that he is not.
“Only a tam ox, not a mu'ad ox, right?” No, there is no distinction. There is no distinction; both are patur from paying for the veladot.