Bava Kamma 49bבבא קמא מ״ט ב
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49bמ״ט ב

ותני זכתה

And as for the expression in the baraita: He acquires, referring to the one who causes the damage, teach: She acquires.

לימא כתנאי בת ישראל שנשאת לגר ונתעברה ממנו וחבל בה בחיי הגר נותן דמי ולדות לגר לאחר מיתת הגר תני חדא חייב ותני חדא פטור מאי לאו תנאי נינהו לרבה ודאי תנאי היא אלא לרב חסדא מי לימא תנאי היא

The Gemara suggests: Let us say that the dispute between Rabba and Rav Ḥisda is parallel to a dispute between tanna’im: With regard to a Jewish woman who was married to a convert, and she became pregnant from him, and someone injured her, causing her to miscarry: If this was during the lifetime of the convert, the assailant gives compensation for miscarried offspring to the convert, i.e., her husband. If this was after the death of the convert, it is taught in one baraita that the assailant is liable, and it is taught in one baraita that the assailant is exempt. What, is it not a dispute between tanna’im? The Gemara clarifies: According to the opinion of Rabba, it is certainly a dispute between tanna’im. His opinion does not accord with the second baraita. But according to the opinion of Rav Ḥisda, shall we say that it is a dispute between tanna’im?

ל"ק הא רבנן הא רשב"ג

This is not necessarily so, as Rav Ḥisda could say that both baraitot are in accordance with his opinion. As for the difference between them, that is not difficult. They can be explained as referring to the increase in the woman’s value due to the offspring, which is subject to dispute in the mishna, rather than referring to the payment of compensation for miscarried offspring. This baraita, which taught that he is exempt, is in accordance with the opinion of the Rabbis, who maintain that the increase in her value on account of the offspring belongs to the husband. That baraita, which taught that he is liable, is in accordance with the opinion of Rabban Shimon ben Gamliel, who maintains that the woman has a share in her increase in value due to pregnancy, and this is paid even if the incident occurred after the husband’s death.

אי רשב"ג מאי אריא לאחר מיתה אפי' מחיים נמי אית לה פלגא מחיים אית לה פלגא לאחר מיתה כוליה

The Gemara asks: If it is in accordance with the opinion of Rabban Shimon ben Gamliel, why state specifically that it occurs after the death of the husband? Even during the husband’s lifetime, she also has a half share, as explained earlier in the discussion. The Gemara answers: While he is alive, she has a half share, but after his death, all of it belongs to her.

ואיבעית אימא הא והא רשב"ג כאן בשבח ולדות כאן בדמי ולדות

And if you wish, say instead that both this baraita and that baraita are in accordance with the opinion of Rabban Shimon ben Gamliel, but they refer to different payments. Here, the baraita that taught that he is liable, is referring to the increase in her value due to the offspring, which belongs partly to the woman, and if the husband dies, she acquires the rights to all of it. By contrast, there, the baraita that taught that he is exempt, is referring to compensation for miscarried offspring, which belongs exclusively to her husband. Since he is a convert, the one liable for damage is exempt after his death.

אמרי משבח ולדות לישמע דמי ולדות ומדרשב"ג לישמע לרבנן אמרי

The Sages said, in questioning this answer: Why is there a difference between the two cases? From the halakha that after the husband’s death the woman acquires his share of the increase in her value due to the offspring, let it be derived that according to the opinion of Rabban Shimon ben Gamliel she also acquires the rights to the compensation for miscarried offspring if she was wounded after his death. Moreover, from the opinion of Rabban Shimon ben Gamliel, let us derive that this is also the opinion of the Rabbis, since there is no dispute between them with regard to the payment of compensation for miscarried offspring.

לא שבח ולדות דשייכא ידה בגוייהו זכיא בהו בכולהו דמי ולדות דלא שייכא ידה בגוייהו לא זכיא בהו כלל:

In response, the Sages said: No, the first assumption is untenable, since with regard to the increase in her value due to the offspring, in which she has a share from the outset, she acquires all of it after her husband’s death. By contrast, with regard to the compensation for miscarried offspring, in which she does not have a share from the outset, she does not acquire the rights to it at all, since she has no greater claim to this than any other individual does.

בעי מיניה רב ייבא סבא מר"נ המחזיק בשטרותיו של גר מהו מאן דמחזיק בשטרא אדעתיה דארעא הוא דמחזיק ובארעא הא לא אחזיק ושטרא נמי לא קנה דלאו דעתיה אשטרא או דלמא דעתיה נמי אשטרא

§ Rav Yeiva the Elder raises a dilemma to Rav Naḥman: With regard to one who takes possession of the documents of a convert, what is the halakha after the death of the convert? On the one hand, it can be argued that one who takes possession of the document takes possession with the intention of acquiring the land that the document states is under lien, and since he did not take possession of the land itself, he also does not acquire the document. This is because he had no intention to acquire the document, but just the property specified in the document. Therefore, since the convert has died, perhaps the lien is canceled and can no longer be collected, or perhaps his intention is also to acquire the document, and the paper on which it is written belongs to him.

א"ל עני מורי וכי לצור ע"פ צלוחיתו הוא צריך א"ל לצור ולצור

Rav Naḥman said to him: Answer this, my Master: Does he need to acquire the document to use as paper to cover the opening of his flask? Why would he want the document if it does not grant him ownership of the land described therein? Rav Yeiva the Elder said to him: Indeed, his intention is even to cover the flask and to cover it with the paper, albeit a mundane purpose.

אמר רבה משכונו של ישראל ביד גר ומת הגר ובא ישראל אחר והחזיק בו מוציאין אותו מידו מ"ט כיון דמית ליה גר פקע ליה שעבודיה

Rabba says: In a case where the collateral of a Jew was in the possession of a convert who lent him money, and the convert died, and another Jew came and took possession of it, then, since the convert has no heirs, the court appropriates it from his possession and returns it to its owner. What is the reason? Since the convert died, his lien on the property is abrogated. Therefore, the deposit automatically returns to its owner, and no one else has the right to take it.

משכונו של גר ביד ישראל ומת הגר ובא ישראל אחר והחזיק בו זה קנה כנגד מעותיו וזה קנה את השאר

By contrast, if the collateral of a convert is in the possession of a Jew who lent him money and the convert died, and another Jew came and took possession of it, this one, i.e., the one owed money, acquires a share of the collateral corresponding to the money owed to him by the convert, and that one, i.e., the one who took possession of it, acquires the rest.

ואמאי תקני ליה חצירו דהאמר רבי יוסי בר חנינא חצירו של אדם קונה לו שלא מדעתו

The Gemara asks: But why doesn’t the creditor acquire the entire collateral? If it is in his possession, let his courtyard effect acquisition for him, as doesn’t Rabbi Yosei bar Ḥanina say: A person’s courtyard effects acquisition for him even without his knowledge?

אמרי הכא במאי עסקינן דליתיה כל היכא דאיתא לדידיה דאי בעי מקני [מצי] קני קניא ליה [נמי] חצירו כל היכא דליתיה לדידיה דאי בעי הוא למיקני לא מצי קני חצירו נמי לא קניא

The Sages said in response: Here we are dealing with a case where the creditor is not standing next to the courtyard. Anywhere that he is present, next to the collateral, so that if he wants to acquire it he could pick it up and acquire it himself, his courtyard also effects acquisition for him. But anywhere that he is not present, next to the collateral, so that if he wants to acquire it he could not acquire it, his courtyard also does not effect acquisition for him.

והלכתא דליתיה בחצירו דלא קנה:

The Gemara concludes: And the halakha is that where the creditor is not present in his courtyard, he does not acquire the rest of the collateral.

מתני׳ החופר בור ברה"י ופתחו לרה"ר או ברה"ר ופתחו לרה"י ברה"י ופתחו לרה"י אחר חייב:

MISHNA: One who digs part of a pit on private property and opens its entrance in the public domain, or digs a pit in the public domain and opens its entrance on private property, or digs a pit on private property and opens its entrance on another person’s private property, is liable for damage caused by the pit in each case.

גמ׳ ת"ר החופר בור ברה"י ופתחו לרה"ר (ברה"ר ופתחו לרה"י) חייב וזהו בור האמור בתורה דברי ר' ישמעאל ר"ע אומר הפקיר רשותו ולא הפקיר בורו זהו בור האמור בתורה

GEMARA: The Sages taught in a baraita: One who digs a pit on private property and opens its entrance in the public domain, or who digs a pit in the public domain and opens its entrance on private property is liable, and this is the case of Pit that is stated in the Torah; this is the statement of Rabbi Yishmael. Rabbi Akiva says: With regard to one who renounced ownership of his property but did not renounce ownership of his pit located in the property, this is the case of Pit that is stated in the Torah.

אמר רבה בבור ברה"ר כ"ע לא פליגי דמיחייב מ"ט אמר קרא (שמות כא, לג) כי יפתח וכי יכרה אם על פתיחה חייב על כרייה לא כל שכן אלא שעל עסקי פתיחה ועל עסקי כרייה באה לו לא נחלקו אלא

In explanation of this dispute, Rabba says: With regard to a pit that a person digs or opens into the public domain, everyone agrees that he is liable for damage that occurs as a result. What is the reason? The verse states: “And if a man shall open a pit,” and it also states: “If a man shall dig a pit” (Exodus 21:33), which raises the question: If one is liable for opening a pit by removing the cover of a pit that has already been dug, then is it not all the more so obvious that he should be liable for digging a new pit? What, then, does the latter phrase add? Rather, the interpretation of the verse must be that the responsibility for the pit comes to him by engaging in opening the pit and by engaging in digging the pit. Although he does not own the area itself, he is liable for creating a public hazard. They disagree only