Clarification: This only speaks where the Parshah is written in the masculine ...

Precedent: ... like the case at the beginning of Temurah (Daf 2:), where the Gemara asks why we need a Ribuy (to include women) with regard to Temurah because the Parshah is written in the masculine, seeing as the Torah compares a woman to a man? ...

Clarification (cont.): ... but there where the Torah specifically writes "Ish", a Ribuy will certainly be required

Precedent: ... like we find in Perek Arba Misos (Sanhedrin, 66.), where the Gemara says - "Ish ki Yekalel". We only know a man; From where do we know a woman?'

Question: Further on, in 'Shor she'Nagach Arba'ah va'Chamishah (Daf 44:, and there, in DH Shor ha'Ishah) the Gemara states 'Shor Shir Shiv'ah', to include an ox belonging to a woman - in connection with an ox that killed someone. Why is it necessary to include it, seeing as the Torah there does not write "Ish"?

Refuted Answer: Even though the Torah does write "ve'Gam Be'alav Yumas ...

Refutation: ... that is merely a masculine expression?

Answer: Rabeinu Tam therefore says that the Gemara there compares there the goring of a Tam for Misah to the goring of a Tam for damages, and we would learn from Nizakin, about which the Torah writes in Sh'mos (21) "Ish ki Yigof Shor Ish" to preclude the ox of a woman, were it not for the Ribuy.

Question: "Lifneihem" only speaks about people who are eligible to judge ...

Source: ... because so the Gemara Darshens in the last Perek of Gitin (Daf 88: & 89.) "Lifneihem", 'and not before Hedyotos' (who do not have Semichah).

Question (cont.): ... and a woman is disqualified from judging, based on the Mishnah in Perek Ba Si'man (Nidah, Daf 49: & 50.) 'Kol ha'Kasher la'Dun Kasher le'Ha'id', and a woman is Pasul from testifying ...

Source: ... as the Gemara says in 'ha'Chovel' (later, on Daf 88.) and in Perek Shevu'as ha'Eidus (Shavu'os, Daf 30.).

Answer: The Gemara in Perek Ba Si'man is referring exclusively to a man - 'Any man who is eligible to judge is eligible to testify.

Refuted Proof: One cannot bring a proof that a woman is eligible to judge from the Pasuk in Shoftim (Chap. 4), in connection with Devorah "And she judged Yisrael".

Refutation: ... since it is possible that they accepted her on themselves in honor of the Shechinah.

Question: The Gemara in Gitin (Daf 88:) Darshens "Lifneihem" to preclude Hedyotos, and here it precludes a woman from the same word?

Answer: It precludes it there from the fact that "Lifneihem" refers to "Elohim", which is written in the Parshah.

Question: Why can we not learn that one requires Mumchin without "Lifneihem" - from the word "Elohim" -?

Answer: "Lifneihem" is needed with regard to all matters of force and coercion, even assuming that one does not require Mumchin.

Support: ... and this is evident in the first Perek of Sanhedrin (Daf 7:) which Darshens from "asher Tasim" 'This refers to the work-implements of the judges (See Mesores ha'Shas)..

Question: The Gemara ought to have cited the earlier Pasuk "ve'Chi Yigach Shor es Ish O es Ishah" ...

Reason: Because we Darshen "ve'Heimis Ish" in 'Shor she'Nagach Arba'ah va'Chamishah' (later, on Daf 42b) 'Just as the damages of a man go to his heirs so too, do the damages of a woman'?

Elaboration: This is what the Gemara says there "ve'Heimis Ish O Ishah" - Rebbi Akiva says 'What is this coming to teach us? If it is to render a woman Chayav like a man, the Pasuk has already said "ve'Chi Yigach Shor ... "? It must therefore be coming to compare a woman to a man, inasmuch as just as the damages of a man belong to his heirs ...

Correct Explanation: This means that one is Chayav Misah or Kofer if one kills them, just like one is for killing a man ...

Reason: ... since that is what the Pasuk "ve'Heimis Ish O Ishah" is talking about.

Proof: The Gemara will also shortly state that the Pasuk has pity over her due to the loss of a Neshamah.

Refuted Explanation: In any event, it is not talking about a woman who killed being Chayav like a man.

Question: If they are not compared at all regarding punishments, then the Torah would be taking even more pity on her, in that she would not be punishable and would not therefore require a Kaparah at all?

Answer: The Pasuk is nevertheless necessary for punishments which are written explicitly by women, such as those of adultery, where they are subject to atonement.

Implied Question: Even though he (the Nizak) is taking what is not his ...

Answer: Nevertheless, since the Torah grants him half damages, he is considered a partner in the payment, inasmuch as he has to accept the depreciation of the carcass ...

Answer (cont.): ... and he cannot say to the Mazik 'The horn of your ox is buried in mine', as Tosfos explained earlier (Daf 10b, DH 'Lo Nitzr'cha)

Clarification: Since, according to the opinion that 'Palga Nizka is Mamon', one can ask 'What does it leave over that enables it to leave this over too'?

Reason: Because if it left over Chatzi Kofer, it has left over nothing, seeing as the author is Rebbi Yossi ha'Gelili'.

Precedent: And ws find a similar format in Perek Sheloshah Minim (Nazir, Daf 38b) and in Perek ha'Chalil (Succah, Daf 54b).

Clarification: The fact that a Mu'ad pays full Kofer and a Tam only Chatzi Kofer is not considered a Shiy'ur, since the Mishnah already learned 'Tam Meshalem Chatzi Nezek u'Mu'ad Nezek Shalem', and that includes the Din of Kofer.

Question: Why does the Tana mention that a Mu'ad pays Kofer even when the ox is Chayav Sekilah, whereas a Tam is Patur even according to Rebbi Yossi ha'Gelili, because 'Bring it Beis-Din and he will pay!' (as we will learn later, on Daf 43a)?

Answer: Because that is included in the ruling that a Tam pays half the damage from its body. (cont. on Amud Beis)

Question: If that is the reason, why does the Gemara not establish it even according to Rebbi Akiva, who exempts a Tam from Chatzi Kofer ...

Reason: ... seeing as we learned that 'a Tam pays from its body', in which case we will say 'Bring it to Beis-Din and he will pay you!'

Question (concl.): Whereas if the ox is not stoned - where there is only one witness or where the owner is the witness, both Tam and Mu'ad are Patur from Kofer ...

Reason: ... which we learn from Rabah, who says in Perek Shor she'Nagach Arba'ah va'Chamishah (later, on Daf 43a) that if an ox gores a regular Yisrael unintentionally, it is Patur, due the Pasuk "ha'Shor Yisakel ve'Be'alav Yumas", from which we learn that whenever the ox is stoned, the owner pays Kofer ... .

Answer: According to Rebbi Akiva, Kofer is indeed considered a Shiyur, and the reason that the Gemara did not establish the Mishnah like Rebbi Akiva is because the Gemara Darshens in 'Shor she'Nagach Arba'ah va'Chamishah' (later, on Daf 42.) that he is exempt from paying the value of the Eved'.

Answer (cont.): And if the author was Rebbi Akiva, let the Tana also say that the Tam is Patur from paying for the value of the Eved, and what else did he leave over ... ', according to the opinion that holds 'Palga de'Nizka Mamona'?

Answer (concl.): Because if is on account of Chatz Kofer, that is not a Shiyur, since we learned in the Mishnah that 'a Tam pays Chatzi Nezek from its body?

Question: From where does the Gemara know that Rebbi Yossi ha'Gelili holds 'Tam Meshalem Chatzi Kofer'?

Refuted Answer: If it is from the the fact that he Darshens later 'Naki mi'Demei V'lados' and not 'Naki me'Chatzi Kofer' ...

Refutation: ... perhaps he holds that he is Patur because of the S'vara that where the ox is Chayav S'kilah 'Bring it to Beis-Din and he will pay you!', and where it is not, he is Patur on account of Rabah'.

Answer: When he says that Tam pays half Kofer (in the R'shus ha'Rabim) this is not because we heard him say so, but that he may hold that he does, and that he does not hold like Rabah but like Rebbi Tarfon, who also holds, later in Perek Keitzad ha'Regel (on Daf 26a) that 'Tam Meshalem Chatzi Kofer'.

Answer (cont.): In any event, even if Rebbi Yossi ha'Gelili holds that a Tam does not pay Chatzi Kofer on account of Rabah, it is not a Shiyur, as Tosfos explained.

Alternative Explanation: In fact, the Gemara could also have establishe the Mishnah like Rebbi Shimon ben Zoma, who Darshen there 'Naki mi'Demei Oro'; because he too, will hold that Kofer is not a Shiyur.

Question: How can he possibly say 'But a Tam does not pay by his own admission', implying that if two witnesses testify that his ox killed so and so, he does have to pay ..

Answer: ... Perhaps he does not hold like Rebbi Yossi ha'Gelili, who says 'Tam Meshallem Chatzi Kofer'?

Clarification: The current ruling is confined specifically to the opinion 'Palga Nizka K'nasa', but according to the opinion that 'Palga Nizka Mamona' he is not Chayav at all ...

Reason: ... because from where will he learn (that he is Chayav)? One cannot learn it from Keren, since Keren is its way (to damage), seeing as 'S'tam Shevarim are not automatically guarded', whereas the current case is 'Meshuneh', since it is not the way of a dog to eat large sheep.

Conclusion: ... Whereas according to the opinion that 'Palga Nizka K'nasa', it is a Toldah of Keren, since both cases are unusual, despite the fact that in the case of Keren, it has the intention to damage.

Qualification: Rabeinu Tam says only if he seized [the Mazik itself, for example] the dog or the cat, then we do not remove it because the Chacahamim were lenient with regard to a Mazik and permitted him to keep it if he took it at the time the damage occurred ...

Qualification (cont.): ... but not where he seizes anything else ...

Reason: Because if we would not take anything back, it would lead to a Takalah, in that today or tomorrow, the Nizak will steal everything that the Mazik owns, and we will not take it away from him, due to the fact that we do not judge Dinei Kenaso

Reason (cont.): ... with the result that he (the Mazik) will lose more than the damage that he did.

A Ruling in Keitzad ha'Regel: And when later in 'Keitzad ha'Regel' (later on Daf 19b) Rav Yehudah obligated the owner of the donkey that ate someone's bread and munched the basket to pay in full for the bread and half the damage for the basket ...

Explanation #1: ... it speaks, either where the Nizak seized the donkey ...

Explanation #2: ... or where he forced him via a Niduy, to go and have his case arbitrated in Eretz Yisrael.