Bava Kama 83b -- understanding the nature of nezek payment by chovel

Rashi writes on the mishna that the reason for the payment is "שהרי הזיקו והפסידו ממון שאם היה נצרך היה מוכר עצמו בעבד עברי" In other words, Rashi explains that this payment is restitution for a loss (פיצוי).
The Rosh however writes that the computation of nezek is that we look at him as if he were an עבד כנעני. This is something he can never be, so this indicates that according to the Rosh it is an obligation to pay money as a punishment but not as restitution.

-Based on shiur by Rav Lichtenstein Shlita (as i understood it...)

bava kama 57b - petur for a shor פקח that fell into your bor

The Gemara's conclusion is that if a שור פקח falls into your bor during the day, then you are patur.  However, the Rambam rules in 12:16 in Nizkei Mammon that if the shor only got damaged then the owner of the Bor would be Chayav.

The Raavad asks the obvious question -- if the shor is פקח then what is the basis to differentiate between damage and death? You should be completely patur for this שור פקח. Interestingly, The Raavad is ok with the Rambam stating that for a person who gets HURT, that you would be chayav even though for the animal you should not.

Explaining the Raavad is simple, since we have learned about people אין דרכן של בני אדם להתבונן בדרכים so this leads to a chiyuv for a person that falls into the Bor while still being patur for a שור פקח . The Maggid Mishne explains that perhaps since a person thinks so he does not look around as carefully as a Shor.

So, now we just need to understand the Rambam.
The Maggid Mishne explains that this פקחות of the animal only means that it avoids a serious pit that could kill it but its not smart enough to avoid all damaging obstacles. Based on this, the question arises -- what if the animal falls into a bor that COULD have killed it but only got hurt. Using this logic, do we say that the בעל הבור is patur? The Aruch Hashulchan (choshe mishpat 410:24) says yes. Minchas Chinuch also thinks that this would be correct but says there is no indication of this in the Rambam so he writes ויש ליישב

Bava kama 44b (and 13b) - damage done by shor hefker

We see on 44b that according to חכמים we kill the animal that is hefker and Rabbi Yehuda disagrees.
When we learned 13b, we saw Rabbi Yehuda's opinion there but it was quoted by Ravina, so one could have thought that this was according to everyone (even though Rabbi Yehuda is brought there as proof for this).
The Rambam paskens both sugyos. In 8:4 he paskens that a shor hefker is patur when it does damages using pasuk of שור רעהו. But the Rambam paskens like חכמים in our sugya and (10:6) and says that we kill a shor hefker
The Lechem Mishne and others point out that there is no contradiction. The sugya on 13b is discussing damage while our sugya discussed death. Even though Rabbi Yehuda is brought as proof by Ravina, the petur of shor hefker by nezikin is according to everyone.
Perhaps we can suggest that according to חכמים , when we kill the shor we are not killing it as a punishment for the owner but to remove a dangerous being from the world but in the case of nezek, if there are no owners we have no one to punish. Rabbi Yehuda could be saying that even in killing, the focus is on the owner who did not guard.
However, this explanation does not cover the case of a shor that damages and then the owner is mafkir, where even here the former owners are not liable.

bava kama - mishna 19b -- is meshune keren?

The Mishna on 19b begins a discussion about שן. It then discusses eating כסות או כלים and says the chiyuv is only 1/2 nezek, as Rashi explains - due to the fact that this is meshune. Does this automatically mean we have jumped to keren? Perhaps not. My Rebbe, Rav Lichtenstein שליט"א points out that the Rambam brings this halacha in perek 3 of hilchos nizkei mammon, which discusses nizkei shein. If it were really supposed to be keren, then it would have made sense for this to be elsewhere in the Rambam's discussion of halachos related to keren. 

This raises a possibility that meshune is a general din, not necessarily related to keren per se but any av. This would work well with the first mishna in the second perek as well which changes from regular regel to mevaetes (see tosfos there who says we did jump to keren but it is brought here since the din is parallel). There is one problem though with applying meshune to regel since they seem to be contradictory as the definition of regel is normative - היזיקו מצוי. Rav Lichtenstein suggested that the בעיטה that is meshune is in the context of a normal action of walking, as opposed to בעיטה we saw earlier that is pure keren -- in mishna 15b.

This solves another problem in that we we have been seeing two different chiyuvim of keren: כוונתו להזיק and משונה and they dont necessarily go together. So, we would now say that only כוונתו להזיק is keren. Of course we need to work this out with the issue if petur reshus harabim as well.

בתר מעיקרא או בתר תבר מנא אזלינן Bava Kama 17b

Rashi explains the din of Rabba where a person threw an item and then someone else broke it, that patur mean that the thrower is chayav and thus we see that Rabba holds בתר מעיקרא. The Ramban explains that the Rif understood Rabba differently, that Rabba actually holds בתר תבר מנא אזלינן and the meaning of patur is that therefore no one is chayav, since the thrower did not break it and the person who actually broke it broke a worthless object since it was about to be broken.

Rav Soloveitchik (רשימות שיעורים) explained this machlokes between Ramban and Rashi as follows:
According to the Ramban, each perpetrator should be looked at inidividually. For this reason, there is no chiyuv. The one who threw it would have been chayav if we held בתר מעיקרא and even had he died before the nezek happened, would have been chayav. But since we hold בתר תבר מנא, the only significant time is the breakage when the item was worthless. However, Rashi holds that we need to consider both times -- מעיקרא and תבר מנא, as both together caused the damage. The question of the sugya is who do we pin the chiyuv on (not who is responsible). Whichever we pick will create a chiyuv on the one individual and uproot the other's chiyuv, and creates an obligation on the entire act (thus having to pay even if we say בתר תבר מנא).

One other interesting note on this. The Ramban asked on Rashi from a case of murder: where a person throws a baby off a roof and someone else catches the baby on his sword (26b). In this case,the sugya says that the thrower is patur. What is the difference? Rav Soloveitchik points out the Ramban's question is very difficult. Unlike an inanimate object that we may consider worthless and broken as soon as it will break, this is not true in the halacha of people. As long as the baby is still alive it has a full status of being alive in the spheres of יבום and ערכין. Therefore, there is no possibility to consider בתר מעיקרא by murder.

Bava kama 9b - hiddur is an increase of 1/3 of what?

Tosfos suggests that the 1/3 increase is not in cost but in the size of your esrog that if you have one that is the size of a nut, then increase by 1/3. The Beis Yosef explains this idea based on others, that the meaning of Tosfos is that you are only being asked to do this hiddur of a 1/3 if you are in a state where you have the bare minimum of the mitzva. Then you should try to increase 1/3. But if you have a decent size esrog, then no 1/3 increase is necessary.

bava kama 9b - Hiddur Mitzva

There is a famous chakira about the din of hiddur mitzva, זה א-לי ואנוהו if it is a separate halacha we apply to mitzvos or if it is incorporated into the mitzva itself. Rav Soloveitchik explained that this chakira explains the two side of the question in our gemara of the 1/3 hiddur is מלבר or מלגיו. He explained that if we say that it is part of the mitzva, then it makes sense that when we look at the chefza you have at the end, that 1/3 of it be hiddur, thus it would be מלבר but if it is just a separate halacha then using what you have now, you tack on the hiddur of 1/3

Bava Kama 6a - nezikin learned out from 2 avos

There is a machlokes rishonim what is the status of Nezikin that are learned out from multiple avos.
This is discussed in the Rosh and expounded in the Griz al Harambam in the beginning of Hilchos Nizkei Mammon.
The question is as follows: אבן,סכין ומשא  that fell down and cause damage after landing, we learn according to Shmuel that if the owner was not mafkir, then it is learned out from a combination of esh and bor.
Tosfos understands this to mean that it will have the halachos of what it was learned from, i.e. this will have on the one hand a petur of tamun like esh and on the other hand, like bor that adam and and keilim are patur.
However, there is an alternative understanding to this The Rosh explains that אבן,סכין ומשא, once the learning is complete from esh and bor, are then completely like bor. Esh was used to learn out that one is chayav but it is a pure bor in terms of halacha. This actually also works well with what we learned in shiur that even according to Rav, he also really learns out even sakin umasa from a combination of bor and shor (mentioned as shitas Rashbam in tosfos 3b), just acc to him, after we learn it, they are pure shor as opposed to bor in terms of the halacha. And according to Shmuel, it is a pure bor after the derivation.
The Griz explains this approach as follows: the petur of tamun is a גזירת הכתוב and limited to only an item that has a שם אש but something that אש was used to learn it out does not make it אש and therefore the petur does not apply. This would be true in a reverse case as well, where the item is defined as esh and bor was used to learn it out, i.e אבן,סכין ומשא that cause damage while airborn. However, Tosfos disagrees and says whatever is the source to learn out the din that you are chayav, must also reflect on the parameters of what you are chayav for.
The Rosh's explanation also enables us to have an alternate peshat to Tosfos 3b on top that says we can only learn from keren to even sakin umasa since only keren is chayav in רשות הרבים. But if we say that the נלמד does not have to have all the halachos of what it learned from applied to it, then we are ok to learn even from shen or regel.
Similarly, the Griz explains that תולדותיהם כיוצא בהם או לאו כיצא בהם according to the Rosh is really asking the following: do the toldos of the avos have the exact status as the avos in terms of all the halachos that are unique to each one or not, or are they merely learned out from the av but they dont have the same שם as the av and therefore would not have all the unique dinim. And the answer of the gemara is that since all the toldos have all the characterstics of the av, therefore they have all the unique halachos as well.

Bava Kama 3a -- categorizing a snake bite

The gemara states that being bitten by an animal is a תולדה of שן. However, Tosfos points out that this would not include a snake bite which would be a tolada of keren. This relates to the sugya in Arachin 15a we learned where the animals discuss with the snake how it does not get הנאה from its' bites.
However, the Rashba says that a snake bite can still be a tolada of שן. The reason for this is that the snake still has הנאה even though it does not digest. Thus this explanation still works with the gemara in Arachin since there it discussed eating and not biting.
Just to round out all the possibilites, Tosfos on 16a says that a snake bite is a תולדה of רגל since this is a normal act of a snake and Tosfos therefore says that if it is רגל this would mean that you would be פטור in reshus harabim if your snake bites someone!

kerisos 8a - takanas Rabban Shimon Ben Gamliel

Rashba"g made a takkana in order to drive down the price of the birds for korabanos, that a woman is not chayav to bring korbanos for all vaday births. This is very difficult to understand -- how can he go against a chiyuv in the Torah for korbanos? See the Shita Mekubetzes in the back who bring the peshat of Rabbeinu Tam.

The Netziv in the Harcheiv Davar at the beginning of Parshas Tazria also grapples with this issue of Rashba"g seemingly going against halacha. To solve this problem, he says in the name of his son, Rav Chaim Berlin that we can see the peshat of Rashba"g in the pesukim of Tazria. The summary pasuk of "Zos Toras Hayoledes" is before the pasuk that addressed the poor korban. One would have thought that the order should have been reversed. Based on this, he argued that the ruling of multiple korbanos for multiple leidos is only for a rich yoledes. However if she is poor, not only does she bring a bird instead but also she only has to bring one for multiple births. Therefore when it became expensive, Rashba"g said the rest of the korbanos are no longer obligated and the yoledes only has to bring one, but should she become rich, then she would be obligated in all of them.

Thanks to my Rebbe, Rav Binyamin Tabory, may HKBH send him a refua sheleima, for pointing this Netziv out to me.

Shabbas 130a - Was Elisha Baal Kenafayim a model of Mesirus Nefesh?

According to the simple peshat of our sugya, the gemara is saying that we are not moser nefesh for tefillin the way that Elisha Baal Kenafayim did. But Tosfos on 130a quotes the Rashbam who says the opposite. When Elisha answered the officer and did not say he had tefillin, this was a proof to the claim of the gemara that no one is moser nefesh for tefilln, since even he did not and instead said he had kanfei yona.

The Maharam explains that the reason The Rashbam did not follow Rashi’s peshat is that Rashi implies that you need everyone to be moser nefesh and here only one person did. However, this is not true since even by Avoda Zara we find most did not other than Chananya Mishael and Azarya.

So why did a miracle happen to him? Perhaps because he was dedicated to the mitzva in a way that others were not in terms of being makpid on Guf Naki?

Shabbas 117b – Bahul al mamono

Rava explains the limit of how much we are allowed to remove from the house that is burning to be based on מתוך שאדם בהול על ממונו אי שרית ליה  אתי לכבויי.

This is contrast to 43b where R’ Yehuda Ben Lakish says מתוך שאדם בהול על מתו אי לא שרית ליה אתי לכבויי. Tosfos there (44a) explains that a person has more concern over a dead body than his money so he will put it out on purpose if we dont allow him a way to save the body. The concern over money however is more of when he is allowed to save, he may get so involved that he will forget its shabbas and then put out the fire.

However, the sugya on 65b still needs to be resolved with our sugya. The gemara, when raising the issue of saving clothes from a fire (הערמה), says that according to Rabbi Meir  on 120a we need to allow all clothes for if not,  דאי לא שרית ליה אתי לכבויי, which is like the death case and not monetary case above!

The Aruch Hashulchan in Siman 334 explains the difference between the sugyos as follows. He says that Rashi in 117b writes “ואי שרית ליה לאתחולי בהצלה”. This word is the key to understand, as it is based on human psychology. When a person is heavily involved in the act of saving things due to the fire he may forget its shabbas and chazal need to consider that and therefore use behala to expand the heter and allow him as much as possible so he does not resort to putting out the fire. Once he has been given enough leeway to act, he is calm and focused and we are no longer concerned about him putting it out, but if we limit him partially, then he may have more confusion and forget its shabbas. On the other hand, sometimes we may limit him from getting involved in kibuy, as in saving three meals which is a small act and not even a “start” in Rashi’s words, then the person understands that Chazal limited what he can do and he accepts it as a gezeira mishamayim and the worry is not that he will put it out, and instead we need to keep him away from getting involved in the acts that would make him forget its shabbas.

Therefore, according to Rabbi Meir we must allow all clothes and not limit to 18 as we are allowing him to act, and similarly on 120b, Chachamim allow all vessels including kelei cheres that will explode immediately since once he is allowed to build the mechitza we need to allow him to finish, for if not, this may cause behala and putting out of the fire.

The Aruch Hashulchan does not address Rabbi Yossi on 120b who says the opposite sevara – that by mechitza, he says that “אי שרית ליה אתי לכבויי”- which would seem to indicate that Rabbi Yossi and Chachamim are arguing about the Aruch Hashulchan’s explanation. Perhaps Rabbi Yossi has a different point of argument and is arguing on how sharp the lines have to be drawn between gerama and kibuy and his concern is that we cannot allow gerama because it looks too much like kibuy and this is unrelated to the question above.

Shabbas 120a - saving multiple items in one tallis

The Gemara, based on Rava’s statement that Rav Shizbi misled Rav Chisda, concludes that putting everything into one tallis and taking out is considered hatazala and thus mutar according to everyone.

If we turn back to 19b, we see that there were two talmidim who disagreed  -- one saved with one kli and one saved with many. The Gemara says this is the machlokes in our sugya of Rabba bar Zavda and Rav Huna. The simple interpretation would seem to be as Tosfos explains there that the talmid that saved many keilim was saving to the same chatzer (Rabba bar Zavda) and the one saving only one, was following Rav Huna that even to same chatzer you can only save one.

Based on this, Tosfos on 19b challenges Rashi’s interpretation of the sugya there as Rashi says that the talmid who carried many keilim did it by folding them up together and carrying out all in one shot. But as we said above, this is what our gemara said everyone calls matzil! The Ramban (and Maggid Mishne says Rambam learned this way as well in 23:23), explains that according to Rashi there is a difference between a real mixture where everything is poured together and mixed, as opposed to where all the keilim are put in one tallis and carried out but not really mixed. This latter case is not considered Matzil and only allowed according to Rabba Bar Zavda.

shabbas 111a -- female sirus

The Gemara states that if we hold that women have a mitzva of פריה ורביה, then this would mean that sirus is assur for them. What is the connection -- animals don't have such a mitzva and it is still assur?
The Minchas Chinuch explains that really the issur of sirus is not dependent on פריה ורביה, based on what we stated above -- that animals are included. Rather, the point of the gemara is that even though women are NOT included in the issur of sirus based on גזירת הכתוב (the source is from the toras kohanim), the gemara suggests a second reason that is independent that would forbid them to drink the כוס של עיקרין, which is פריה ורביה.
Another interesting peshat point in the Minchas Chinuch is that based on the reading of the peshat of our gemara he takes issue with the pesak of the Rambam who paskens that there is a different level of issur if you do direct or indirect sirus. For a man, direct sirus is chayav malkus, while כוס של עיקרין is only assur and for women it goes down one level, where direct is assur and כוס של עיקרין is mutar. He says that the answer of direct vs indirect in the sugya was rejected, thus the pesak should be that one is chayav malkus for a male either way and for a female it should be mutar either way, including a woman due to not being commanded in פריה ורביה.

Shabbas 49a - The Mesirus nefesh of Elisha Baal Kenafayim

The Rishonim all ask – this seems like it is a shaas hashemad, so shouldn’t one have to be moser nefesh for anything even not the big three – as the gemara states in Sanhedrin, even arakta demasana – the tying of the shoelace? Tosfos limits the ruling of arakta demasana to be something that is making you dress not like a Jew, while not wearing tefilin is different, since many Jews don’t wear tefilin all day so you won’t look like a goy. The Ramban and others formulate the difference as follows – tefillin is an aseh, so for bittul aseh we do not have to be moser nefesh, since שב ואל תעשה שאני. This leads to a different question, if he did not have to be moser nefesh, why did he take a chance in the first place and wear them? (Similar to the famous question on Mordechai why he risked his and Am Yisrael’s life not bowing to Haman).

This question leads to the BIG machlokes if one is allowed to give up their life optionally (not the big three and not shaas hashemad). The Rambam (יסודי התורה ה:ד) rules that one cannot do so as he writes: כל מי שנאמר בו יעבור ואל יהרג ונהרג ולא עבר הרי זה מתחייב בנפשו. The Lechem Mishneh asks from our case to this halacha and therefore rejects the ideas suggested above (aseh is different or based on how you look), However, he says that Elisha was able to take off his tefillin once he did the mitzva of wearing tefillin that day.

Other Rishonim use this case among others as proof that one may decide to give their lives. The Ran (based on the Ramban)  writes (on the Rif in our sugya) “שאע”פ שאינו מחויב ליהרג על קיומיה אפ”ה רשאי למסור נפשו עליה ומקבל שכר שכל מצוה שמסרו ישראל נפשם עליה בשעת הגזירה מוחזקת בידם ומקבלין עליה שכר הרבה ….”

For an interesting listen on this (related to Holocaust responsa: http://www.yutorah.org/lectures/lecture.cfm/728723/Rabbi_Aaron_Rakeffet-Rothkoff/2008-11-02_Responsa_06, about halfway through the shiur

The definition of yad soledes bo

As Rav Meir mentioned, there is a large gap of what the definition of yad soledes bo. One of the significant sources for this is a teshuva of Rav SZ Auerbach in Minchas Shlomo, you can read here, continuing to here, where he uses a halacha from shechita to come up with minimum shiur for yad soledes bo lechumra. The basic idea there is that it is well documented that the body temperature of a duck is 45 degrees celsius and we also know that according to all opinions, the beis hashechita is not considered to be boiling until the end of the schechita, meaning that a knife that touches the beis hashechita for sure is not treif. Thus, at this temperature we know that we have not reached yad soledes bo

shabbas 36b: Shehiya on raw food

The Rashba raises an interesting peshat question that has great ramifications in Hilchos Shehiya.
Obviously, in the first explanation of the Mishna, based on Chananya's shita, the Mishna speaks about chazara, and shehiya is allowed according to Chananya even when not garuf and katum when the food is maachal ben derusai. What about according to the other reading -- according to Chachamim, who say that the mishna speaks about shehiya, i.e. that one can only do shehiya when the oven is garuf vekatum. So in this case, can it even cooked less than מאכל בן דרוסאי?
The Rashba suggests that one problem with this suggestion is our sugya on 18b that discusses the case of the יורה cooking the dye and the gemara's אוקימתא is to remove it from the fire (עקורה וטוחה) rather than leave it on the fire and make it garuf vekatum. Thus, the Rashba suggest that ink is like food prior to מאכל בן דרוסאי. Ultimately, the Rashba decides (as do most rishonim) that according to Chachamim one may do shehiya on an item that is not even maachal ben derusai and the Shulchan Aruch seems to say this as well, though Beur Halacha quotes Rabbi Akiva Eiger to be machmir.
Based on the Gemara we previously learned at the end of the first perek, Beis Hillel allow melacha to be done on shabbas, so what would be the problem? After all, the melacha is happening by itself and by making the item garuf and katum you have removed the possibility of stoking the fire? More specifically why is the raw meat allowed while shehiya is not. For an exhaustive discussion of this, see here. But just to address this one question, in this article, Rav Gigi suggests that when the item is in mid process of cooking (even prior to מאכל בן דרוסאי) then this active accompaniment is called מיחזי כמבשל. The heter of קדירה חייתא is based on the fact after adding this raw meat, you are not watching or accompanying the cooking anymore.

Shabbas 34a – Rav Ashi knew מסברא that he should speak softly

What is the chiddush that Rav Ashi tells us that he did not hear the teaching of Rabba Bar Rav Huna yet he intuitively also knew that he should say the three reminders בניחותא?

Maharsha (in the parallel sugya in Gittin 7a) explains that there are potentially two reasons one would speak softly. One is that he has a better chance of convincing others to listen to him than by screaming, and the second is that there is an inherent value to speak this way. Rabba Bar Rav Huna instructed us to talk to this way to prevent kilkul in these three items (i.e. to convince others to listen) but Rav Ashi was saying that even when your purpose is not convincing, one should be talking this way, and that is what he meant when said that מסברא he would speak this way.

Cute Vort on this idea is said by the Ben Yehoyada, on the pasuk דברי חכמים בנחת נשמעים that נחת stands for נר and חלה (the question of עשרתם) and תחומין.

Shabbas 33b- Rashbi decides to be מתקן מילתא

What is the connection between being saved and doing something for the nearby city as Yaakov and subsequently Rabbi Shimon Bar Yochai decided to do?

The Ben Yehoyada answers as follows. (you can see it here continued on the next page here). He says that when HKBH performs a miracle for someone, their merit gets reduced (as we learned on daf 32a). However, this is not always true as we see that with some tzadikim HKBH performs miracles for them as a tzedaka. The ability to have the miracles performed for you as a tzedaka is based on the person doing a חסד חינם for others. i.e. some chesed that he gets no benefit from., then מדה כנגד מדה HKBH will do the same for you. This was Rabbi Shimon Bar Yochai’s intent in doing something for the the city. And since he is not a kohen and does not even live there, this purifying of the area from being tamei was purely for their benefit and not his. The Ben Yehoyada shows this is the reason for the derasha about Yaakov being shalem in all these ways that therefore his various takkanos have no benefit for him.

One interesting thing he relates is about the opinion that מטבע תיקן להם. Ben Yehoyada says in the name of the Noda Biyehuda that the people of Shechem had a coin but he convinced them to make it round instead of square. The reason for this was that they should learn that money is a גלגל חוזר בעולם and therefore people should not get too caught up in their money. He says that this is why one of our coins are זוזים since they are זז from person to person.

Shabbas 30b – answering a mamzerus insult

We learned that both Rebbi and Rabbi Chiya were a proof to the statement that when it comes to non Torah statements, אלתען כסיל כאולתו, i.e. – don’t answer and debate him. The Ben Ish Chai in his sefer Ben Yehoyada says he found a worn piece of paper with a question asked by his grandfather, from the gemara in bava metzia that we learned – where Rabbi Shimon Ben Elazar was suspected as not having fathered his own children, due to his girth. But over there, he did answer – why?

Ben Yehoyada answers that there it was not a real accusation, it was just השערת שכל and therefore, since Rabbi Shimon Ben Elazar had a concrete answer to her suggestion, it was appropriate to disprove her. But in this case, the guy was making a lying accusation  and there is no way to really prove him, therefore it was best to not answer and get him punished min hashamayim.