Rabbi Schiowitz SHLITA 11th grade Bava Kama
Semester II Section I - Squatters Part I – Analysis of Background
Obviously, when there is no loss to the owner and the squatter do not get “benefit” the squatter is Patur from paying. Also, when there is “benefit” to the squatter and there is loss for the owner, the squatter is Chayav Q: what happens in a case where there is benefit but no loss for the owner? A: GM 2 possibilities 1. the owner didn’t lose anything – why should the squatter pay? 2. the squatter benefited from the owners property –of course (seems) chayav Q: what happens in a case where there is no benefit but there is a loss for the owner. because there is no hana’a and the chaser is grama פטור:A: TOS Ze Q: wait so it seems like TOS doesn’t care about “chaser”ness since either there is זה none or because there is and its grama, so everything goes by the nehene. so ?…should clearly be chayav because there’s benefit נהנה וזה לא חסר A: PNEI YEHOSHUA: The determiner is Hana’a (as tos said) however we can only say that he’s chayav if the owner loses something (because otherwise MIDAT SDOM would say PATUR). If the owner loses a little we can then force him to pay for his hana’a, because then it is not MIDAT SDOM. RIF/RAMBAM: Chayav because of the principle of “Kofin פטור Q: Why isn’t the “benefit but no loss” case Bmidas Sdom” (-you have to do something if it doesn’t hurt you but it benefits someone else) Lets first talk about “Midas Sdome” 1. AVOS 5:10: Mine is mine, yours is yours 2. BAVA BASRA 12b: If Reuvain has a bordering property with Yaakov, and then Yaakov dies (assuming that he did) and Reuvain and Shimon split up the land– R YOSEPH: shimone could charge reuvain extra a. Doesn’t believe in Midas sdome OR b. Shmon does lose money cuz the land is worth more to Reuvain OR c. This specific case violates property rights RABA shimon must be kofeh al midas sdom (give Reuvain bordering land (benefit, no loss) זה נהנה וזה לא חסר d. RASHI- this is because פטור i. It seems like of course our GM would say should be A: TOS 20B Ha: No! the squatter could still be chayav according to RABA (even with B’B) since our GM is diff from BAVA BASRA? ?different ”זה נהנה וזה לא חסר“ Q: How are the 2 GMS of A1: RA’AH(in Nimukei Yoseph), R Schiowitz: Kofin only applies when its on your own property and there are 2 ways of doin something, but to go to someone elses propery violates property rights A2: R’I: Its a normal midas sdom case-kofin (force owner to let u stay-if u do stay-ptr A3: MORDCHAI: diff bc its possible to make money on renting out your house (our GM, Whereas in B’B it doesn’t aply. Q: but according to R yoseph there should be no q, it should be obviously chayav (squatte
1 Rabbi Schiowitz SHLITA 11th grade Bava Kama even accrording to R YOSEPH since פטור A: TOS 20B Ha: No! the squatter could still be in B’B the inheritors already have property rights so that’s why you don’t have to force him, so in B’K even though you don’t have to let him in, once he stayed there already, he clearly not necessarily chayav. Q: We were basing our whole thing on the fact that “gavra d’avid lmaygar” is the same thing as ze nehene and that Gavra d’lo avid lmaygar is Ze lo nehene, why is this true? Lets first talk about “Hana’a” Q: NDARIM: if you vow ur not gonna get hana’a from a mitsva can you sit in the suckah? A: you maybe can since mitsvos weren’t given so u get hana’a – the point of the commandment was for the mitsva Q:RASHASH: Nu? But don’t you get hana’a when your in a suckah (shade) rather than in the sun? A:RASHASH: no cuz its either suckah or house (ie-benefit is relative) A1: Yes. Since we have just determined that benefit is all relative. A2: Its not the hanaa that makes you pay for something, it’s the saving of my money that makes me pay. (use someones shade-don’t pay–unless you were about to buy an umbrella
Part II – Analysis of Halacha
We’ve figured out the question of the GM. Now lets see what the halacha is: Q GM RAMI BAR CHAMA: if a squatter lived in someone’s house in a ze nehene,vze lo chaser situation, what is the halacha? A: GM quotes the MISHNA: “pay for hana’a” of fruit that he ate– chayav But the mishna case is chaser while the GM case is lo chaser?! Q: so what was RAMI BAR CHAMA thinking when he compared them? A: The case in the MISHNA is talkin about hefker fruit. Q: If its “hefker” who do u pay the money to? A TOS AFKURAY: It was not hekfer in terms of ownership - the owner expects that the fruits are gonna be destroyed by the people, so when they do get destroyed, there’s no relative chaser. You still have to pay for the benefit, however, proving that zeh neheneh v’zeh lo chaser is patur (according to this opinion of rami bar chama) MESORAT HASHAS: brings a version of the tosefot which says that the owner expected the value of the fruits to go down, but not to ever reach a point where they were less than the hana’ah. This doesn’t seem to fit with the gemara, because if you’re required to pay for the value of the hana’ah, and that value is less than the value that the owner lost, then it’s simply a case of zeh neheneh v’zeh chaser, which is clearly chayav, and doesn’t help us answer our question. PROOF 1: PROOF 2: 4 walls – should be chayav – rejected PROOF 3: rejected - diff – פטור PROOF 4: house falls- should be
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PROOF 5: if u stay in someone’s house without them knowing – chayav – rejected theres a loss the price of a new house RIF: RAMA: the value of the house now that its old -goes by chaserness Like RIF/RAMBAM Rosh/Ritva/Rashba:original house minus the rent–goes by -hana’ah Like pnei yehoshua since when there’s a little chaser u could charge for entire hana’ah PROOF 6: M’ilah thing- treasurer gains benefit, G-d doesn’t lose- chayav m’ilah Rejectionno cuz G-d told us before that we couldn’t (in our case it was after the event- so this is no proof) Q: can u sneak into a hotel and stay there (assuming nehene vlo chaser) A: TOS KHEDYOT: no cuz its “midaas” since they say their rates Q: What is “Midaas” A1:TOS:midaas means that it is made clear noone could stay there A2:RASHI: actual knowledge by the owner that squatters there How could u compare the 2 cases? 1 about korbans and 1 about paying) No! theyre comparable because theyre both about the stealing Rambam puts the laws of squatting in hichos gzaila You pay monetarily since you stole from G-d Proof 7: Scammer renter dude: if you stay in someones house without them knowing- patur Proof 8: see proof 7. why owner got benefit פטור Proof 9: typical squatter 1. benefit may be that your maintaining the house 2. you may be keeping out the demons by staying there NAFKA MINAHS - warehouse demons don’t come anyway Stay and don’t repair- no demons/yes destruction is PATUR. However in some cases (squatter) the owner זה נהנה וזה לא חסר :RASHBA – זה נהנה וזה חסר loses stuff (the squatter wears down the house a bit) so it turns into a but when the guy lives in the house he upkeeps it- so the negs and the poss cancel each other out ROSH: ze nehene vze lo chaser is patur itself – even more so if the owner gets hana’ah The “wear and tear” is negligible Q: what happens it a case where someone squats with someone living in the house A1: RASHBA: Chayav – no pos to cancel out neg Q: how much does he pay ב A: check the rif on the bottom of page A2: ROSH: Patur – just like any other ze nehene vze lo chaser Proof 10: The orphan land
SHULCHAN ARUCH: Q: If you live in someone else’s property and the owner doesn’t want him to chayav or patur? A: chayav for rent (Midaas) Q: who is this midaas like- tos or rashi A: TOS - he uses midaas as making it known that he doesn’t want u there
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Q: Ze nehene vze lo chaser- Patur or chayav A: Patur Q: shulchan aruch like mordchai (possible money) or Ra’ah (violates property rights) A: Mordchai Q: ze lo nehene vze chaser – tos or rif A: RIF- Chayav Ra’avan In his days everything was rented out (everything was kayma lmaygar)so its def gonna be chaser
Section II – Purim Part I – Mishloach Manot
Q: What the point of Mishloach manot A1 Trumas hadeshen: To make sure that everyone has food for seudas purim A2 manot halevi: So that we’re all friends – you know – five each other gifts Q: which does the Rambam hold? A:Trumas hdshn (puts mishloach manot in the same halacha as seuda) Q: which does the ritva hold A: Manot halevi (you have to give good food –or else they wont like u Q: what are some Nafka minas A1: Food A2: if they get it before purim
Part II – Megila Q: T’veria might be a walled city which day do we read it? A1: Chizkiya read on 14 and 15 Ran: Chizkiya was just being a chassid A2: Shulchan Aruch / Rambam: Read on 14 and 15, but only with a bracha on 14 A3: Ran: only 14 1. Most cities read on 14 (rov) 2. It’s a safek – you should really read it on neither, so we just read it on 14 (so we don’t lose the mitzvah)
Q: For which of the 4 cups on pesach do you have to lean? A1: First 2 A2: Last 2 Final Answer: All 4 Q (Ran): Why should we read it on all 4 – by a safek d’rabanan we are lenient! A1: It’s easy to do A2: It’s a safek – you should really read it on neither, so we read it on both (so we don’t lose the mitzvah)
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Q: The two ideas in ugly brown highlighting are contradictory! A: If we don’t lean for the right cups, then we didn’t fulfill the mitzvah. But if we read it on the wrong day, we’re still fulfilling the mitzvah at least a little bit.
Section III - Pesach Part I – Mulsisasking with Mitsvoys
Q: what do u do if while ur eating shabbos comes? A: R Yehuda: 2 cups: 1st Kiddush, 2nd bentch A: R Yosi: 2 cups: 1st bentch, 2nd Kiddush at the same time מצוות Q: why cant you do 2 A: you don’t “multitask with mitsvoys Q: Why not? A1: Rashbam: itll look like a burden (even if its not in fact a burden) שמחה בשמחה A2: well – first lets talk about GM moed katan: no weddings during chol hamoed Q: why not A: because u cant combine simchas Q: why not A2: Rashi: itll take away A2 A1: Tos: you wont have kavanah for both of them Q: who fits fetter with our GM: Rashbam or Tos? A: Rashbam – (ull have = kavanah whether one or 2 cups) R’ Yehudas view R’ shimon
Q: When can you do 2 sotas ( כאן ב 1 –כאן ב A: When you have 2 kohanim (2 Q: M”A: why did the rambam only say cant do 2 sotos at once. Why didn’t he make a distinction (like the GM) and between 1 and 2 kohanim ?why cant it be that we hold like R Yehuda instead of R shimon מחצית השקל :Q A: The rambam didn’t mention this anywhere – (if he believed in the 2 kohanim thing he should have mentioned it by elgah arufa, mtsorah) - - - so the M”A q is why doesn’t the Rambam believe in the 2 kohanim thing is the case that כאן ב 1 כהן -A: Its because the rambam thought that the GM meant that .is the case that your not allowed כאן ב 2 כהן you are allowed to do 2 sotas; and Q: who does this fit with the Rashbam or Tos A: Rashman since he holds that u cant do it since it will look like a burdon if there are 2 kohanim were not worried that they individually wont have kavanah – rather we fear that it may look to ppl in the shul like the community is trying to do it faster with 2 kohanim. With one – we don’t fear that its gonna look like a burdon, since he just does one after another – no problem
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Q: TOS/RASHI: before the Rambam we were under the impression that with one kohen its asur but with 2 kohans mutar- wat were we thinkin? A: we thought that we held like TOS – who says that the kohen cant have kavanah for both sotas is he does 2 at once. However if there are 2 kohanim they will obviously have kavanah
Section IV - Escaped Animals Part I – Tchilaso Bpshiah Vsofo B’oneis
GM 1 Raba says: “if the sheep digs” under the wall…the wall falls-sheep does damage-Patr 2 We infer: if the sheep doesn’t dig-but the wall falls-sheep does damage – chayav Interpretation using raisha doesn’t make sense (nifrtsa balayla It must be the sayfa – left in sun or gave it to charash shotah or katanRambam
Q: Are we talking about a case when the wall is strong or weak? A: Weak, since if it were strong there would be no reason why he should be chayav(case2 Q: but why is the owner patur in a case when the wall is weak? A: because the start was in pshiah and the end was in oneis patur! Q: but he was posheah in the fact that it was a weak wall in the first place! OK Now we have to talk about tchilaso bpshiah vsofo boneis. Q: what happens in a case where a shomer puts someones money in a place that’s secure from thieves but is highly flammable – and then thieves come and steel the money? A1: r yosef: tbvb: chayav halacha A2: ikah d’amri: tbvb: patur Q: why doesn’t TBVB aply with respect to the case in B”M where a guy was poshea in his watching but the animal died by itself? (both Rava and Abayay agree with this point) A: TOS: BM 42 H”G: its because it could only be TBVB if the oneis only happened because of ur pshiah. (in the case of B”M) where ur pshia has nothing to do with the oineis -TBVB doesn’t aply Q: Does the Rosh Agree with tos A: Yes
Q: What does Chatra (dig) mean? That it dug and knocked the wall over or it dug a tunnel A: Rashi: dug and knocked the wall over A2: RA’AH: no its tunneled Q: how about lo chatra (didn’t dig), whats the case? (wall just fell or it ran thru the wall A: wall just fell Q: RAM: Why does the GM interpret the “chatra” (digging) as digging under the wall and the wall falling over (getting themselves into this whole TBVB thing) instead of just saying that chatra is just that the sheep tunneled out – while the wall stayed up? (Theres no TBVB in this case cuz theres no connection between the weak wall and the break out.) A: RAM: the mishnah was talking about the wall falling case and not the tunneling. Q: so what was the RA’AH thinking?
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A: RA”AH: it is tbvb cuz if he wouldn’t have put the sheep in the pen it wouldn’t have gotten out
Q: Lechem mishna: why does the gm need to say that the left it sun case is “all pshiah.” The owner would have been chayav even if its TBVB (since we hold chayav!) why did the rambam mention this last line (he should have just cut it out) Q: R’OSH: The last line is put in to prove TBVB is patur A: Lechem mishna: the rambam put the line about the cow going insane so that it applies to everybody. Q: Wait a second-if you wanna say that TBVB is patur then ur gonna hold by the raysha (with the weak/strong walls) A A: R’ Schiowitz: the reason why it was necessary for the gm to say that the heat made the cow crazy and broke out was because even the TBVB-chayav ppl need this line cuz otherwise we would think that the sun and the cow escaping are not related (as Tos said above-they must be related)
Part II – Listim Chayav
1. listim take listim chayav GM: obviously, The listim are chayav when they steal the sheep out Rather #1- the case is there are guys that force the sheep out by whistling Rather #2-R Yoseph- even hitting is enuf of a kinyan to make the thief chayav Q: what is it so obvious that listim are chayv? A1:TOS Pshita:if you have the ability to watch it, then your obviously chayav in its nezek (like the shomrim!) ability to watch A2:TOS obviously the thief is chayv in nzikin since hes chayv in onsinownership
Q: wat does rather #1 hold A: seems like ability to watch (tos a1) Q: What does rather #2 hold (r Yoseph) ? A: seems like ownership (tos a2) Q: why does the rambam cite our gm as 2 different halachas unrelated to each other A: because our gm in fact used the similar case (to listim) of “ma’amid” to prove things for listim. The rambam views them as different things.
Section V – Minhig Yisruil
RambaM: drabanan=doraisa (it’s a pasuk [al pi hatorah] to do drabanans) ramabaN: Drabanam < Doraisa Q: how could M say =? Why are safek doraisa – chumra, and safek drabanan – lkulah A1: Rabanan said: “anything we say is safek lkulah” A2: Everything is safek lkulah – rabanan made a takana, for d’oraisa stuff do lchumra Q: Why do u have to keep drabanans according to the N (if not a pasuk) A: no- lo tasur is the pasuk – it just says that you have to follow the rabbis- not violating Q: so where does minhag come from? A1: psachim: places where they do X, we do X and places that do Y do Y.
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A2: psachim 66a: chances are what we do is right (prophetically) Q: What is a minhag? A: something that our parents did A: M: it’s a mitsva drabanan Q: how is this a minhag? A: like in baytsa 4b with sfayka dyoma– rabanan keep certain laws that were from before and continue them for the same reason Q: why do we follow the torah? Why do we follow the rabbis? A: G-d said so/G-d said so Q: OK SO WHY DO WE FOLlow minhagim A1: according to the M its obvious – they are mitsvoys drabanan A2:Chasam sofer:you took them on by a chazaka of doin them–now u have to-it’s a neder Q: But we do safek minhagim lkulah and stuff like that A: that’s because when we accept minhagim – we accept them as drabanan A3: The Rav: all minhagim are based on halacha A4: “Shma Bni musar avicha”
Section VI – Nichnis Royeh Tachtiv Part I – Shomer shomer
nichnas roeh tachas baal – cant be because that’s obvious – its in another mishna nichnas roeh tachas shomer – the 1st shomer is therefore completely patur
Q: GM: but rava said if a shomer gave it to a shomer- the 1st is CHAYAV? A: GM: no prob- our gm was talkin bout shepherdhis apprentice (happens pretty often), while rava was talking about a case with shomershomer Q: R Schiow: rava was talkin about a case where the object got damaged (in GM bava metsiah) (in which case 1st is chayav) in our case however where the object (cow) damaged something else (field)-the 2 are nothing alike –why would the gm even ask this? A1: Rashi: easy- the case were now talkin bout is when the sheep GETS damaged Q:why would the gm to interpret the mishna as a sheep that gets damaged while the rest of the mishna was clearly talkin about doin damage? A1:the gm is interpreting tachtav as both doin damage and getting damaged (since the mishna used the work tachtav (in place of) A2: it makes sence since obviously the last shomer is responsible for damage that it caused to other properties- we must be talkin bout getting First lets talk about wat the Rambam said first shomer chayav when sheep does damage because the damagee could say tell the first shomer that he shouldnt have given it to the 2nd shomer Q: Rayvid: Why is the first shomer chayav for damaged that happened under second shomers watch? If the baal could give it to shomer, and the shomr is chayav then clearly its all up to the last shomer? Y is #1 chayav A2 A: Rambam: not like rashi- rather its that the sheep did damage. The GM asked this because according to him they are the same thing. The prob between our mishna and rava is that our mishna thinks that BAALUT
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goes to the second shomer(nichnas tachtav) whereas rava thinks that the baalut stays at first shomer. So now the rayvids q is simple- according to rava the first shomer (who becomes the owner) cant pass the ownership to a second shomer.
WE DID THE GM ON SHOYMER AVAYDAH
The following are cases of patur midinay adam and chayav bdinay shamaim 1. If you breech a wall in front of your friends animal 2. If you take someones branch and bend it so it lights on fire 3. If you hire someone to give false testimony 4. If you know what happened but you don’t go to court 5. If you use parah adumah water as a[weight(rashi)]–thereby making it untahormakable 6. If you put poison in front of an animal 7. If you scare someone 8. If your kad breaks in the middle of the street and you don’t pick it up 9. If your animal falls and you don’t pick it up
Q GM: in 1, are we talkin about strong or weak wall? A GM: bad wall because a good wall your chayav either way Q: whats he chayav for? Knocking down the wall or the animal’s damage A1: Rashi: Damage of wall A2: Rambam: it’s the animal’s damage Q: why cant it be the damage of the wall (like rashi) A: 3 things 1: why would the mishnah mention “in front of friends animal” 3: wall would be just like anything else; if good-pay 4 good, if bad pay 4 bad Q: but in this case its dif bc its good to knock it down in order that the animal is not guarded by this bad wall A: if its good – he should be patur beday shamayim! 2: The mishnahs topic is all about animals doing damage Q: but he should be patur in both shamyim and adam grama! A: ok so even tho we said that gramas patur for the strong wall, for a week wall theres no grama because with a weak wall maybe the animals could’ve left anyway Q: so why are u chayav bshamaim A: cuz maybe the animal would not have been able to get through the week wall Q: ok so if its grama for the stong wall you should be patur, (like the listim case,), what the hava amina of the gm when they said “then you should be chayav for both shamayim and adam” A: ok the listim case was diff from this case. In the listim case, the listim breeched the wall in order to get the animal-they didn’t accomplish their gaol so its grama. In out case the friend did
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accomplish his goal because he did not want the animal- he just wanted it to escape. The point of his attack wat to breech the wall
Q:in case3,why does the hirer have to pay, the friend(who he helped)who has the$ should A:TOS you cant get the$from him-he doesn’t have $/hes gone/cant prove the eydim false youre chayav bshamayim Q: What makes you chayav biday shamaim? A1: Maharam Shif: youre only chayav bshamayim if the first guy doesn’t pay, then, since u most closely caused the loss ur chayav bshamayim. Ur chiyuv shamayimness is dependent on his chiyuv adamness (mammon) A2:pnei yehoshua (fits better with tos): your always chayav biday shamayim, you just pay if the first people (the borrower and the aydim don’t pay) (knas) Q: Are you still chayav biday shamaim even if you didn’t rent the aidim–just told em to? A:Tos: no, if you tell them-ur patur biday shamayim because why should they listen to u?
Q: why does it first say there are 4 A: first 4 are not obvious: 1: we would have thought patur bshamaim also 2:a. you should be patur beidyay shamayim also because it was unexpected wind 2:b (rav ashi version). He should be chayav either way because he caused damage 3.it wasnt the hirers fault because he didn’t think the hitman would go by his word and not G-d 4. he should be patur because who knows that if he would have testified, A would have gotten the money maybe B would have just given false testimony
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