Answer #2: Furthermore, even total Mekalkel can be 'Tzericha le'Gufah', such as where one wounds an animal that is Isurei Hana'ah thinking that he is permitted to benefit from it by feeding it to his dog ...

Answer #2 (cont.): And likewise where one sets fire to Isurei Hana'ah, thinking that he is permitted to place it under his pot to cook.

Question: Why, according to Rebbi Yochanan, is one not Chayav for total Mekalkel, seeing as the reason that Mekalkel is Patur is because one requires "Meleches Machsheves", as is evident at the end of the first Perek of Chagigah (Daf 10b), and as far as wounding is concerned, "Meleches Machsheves" is not an issue ...

Source: ... as is evident at the end of Perek Safek Achal (Kerisus, Daf 10b) where it says 'Leave Chaburah aside, because, since Mekalkel is Chayav, so too, is Mis'asek Chayav' ...

Reason: ... and Mis'asek is generally Patur only because of "Meleches Machsheves"?

Answer: Granted, "Meleches Machseves" is not required, nevertheless, seeing as we learn it from Milah and from the burning of a bas Kohen, one can only declare Chayav there where it is similar to them - where it is not total Mekalkel, but where there is a slight Tikun.

Answer (cont.): Whereas Rebbi Avahu holds that, granted, 'Tzorech Mitzvah' does not render it a Tikun, it does render it 'Tzerichah le'Gufah'.

Question: How is 'Tzarich le'Kalbo u'le'Afro considered 'Tzerichah le'Gufah'? In what way is it different than 'Someone who digs a pit solely for the earth'?

Answer: It is not comparable, since here he needs to 'take the Neshamah' - the blood ("because the blood is the Soul"), in order to give it to his dog; likewise he needs to burn the fire in order to create the ashes, just as one burns it in order to cook his pot ...

Answer (cont.): Unlike someone who digs a pit automatically, and who does not benefit from it at all.

Question: When the Gemara states in the first Perek in Yevamos (Daf 6b) that we need the Pasuk to forbid the burning of a bas Kohen (on Shabbos), since we would otherwise thought that it would be permitted from a Kal va'Chomer from Avodah which overrides Shabbos - why does the Gemara explain that we need 'Hav'aras bas Kohen', because otherwise, we would permit all Mekalkelin by fire?

Answer: The Gemara there holds like Rebbi Yehudah, who considers it (the burning of a bas Kohen) a Tikun.

Inference: It initially appears that the Gemara is asking exclusively according to Rebbi Yochanan.

Question: But it could just as well ask according to Rebbi Avahu, in that 'Just as "Shoro" is 'Lo Tzarich le'Gufo' ... ?

Answer: But if we say that Rebbi Avahu is Mechayev total Mekalkel and does not require 'Tzerichah le'Gufah', the question is answered.

Question: Since the Makshan does not yet know about 'Niskaven Lehazik' ... , even if we say 'Hu Dumya le'Shoro', he should also ask, seeing as by Shor there is no Kavanah, whereas Adam requires Kavanah?

Answer #1: If we say 'Hu Dumya le'Shoro', then it does indeed imply 'Kavanaso Lehazik', and it is coming to teach us that one does not require Kavanaso Levayesh, but only Lehazik, similar to Shoro.

Answer #1 (cont.): Whereas 'Shoro Dumya Dideih' implies a Kavanah that is more common by Adam than by Shor - and that is Kavanah Levayesh, in which case it would be coming to teach us that his ox too, needs to have Kavanah to be Mevayesh, since Mechaven Lehazik is more common to Shor than it is to man.

Answer #2: Moreover, it cannot be coming to teach us that Shor is Patur from Boshes when it is Mechaven Lehazik, since that is unnecessary, seeing as we will learn later (on Daf 87a) that a Shor is Patur from all four things, and S'tam Shor is Keren, which has Kavanah Lehazik.

Answer #2 (cont.): If so, we are forced to say 'Shoro Dumya Dideih', where he had Kavanah to be Mevayesh, which is impossible. Consequently, we have to say 'He Dumya le'Shoro; and it is coming to teach us that we do not require Kavanah Levayesh ...

Answer #2 (cont.): ... and the Gemara answers 'Shoro Dumya Dideih' - that he had Kavanah, and it is coming to teach us that it is possible to say that his ox is like him, in which case, by him, we do not require Kavanah Levayesh, seeing as it is impossible to say this by Shor.

Explanation #1: Rashi explains that Rava establishes the Mishnah where he does not need the ashes, and he is Patur for the same reason as Shogeg is Patur.

Refutation #1: The Lashon however, does not imply this?

Refutation #2: Moreover, it is not similar to Shogeg where there is an Isur Melachah, whereas in the current case, there is not?

Explanation #2: The Mishnah is speaking be'Shogeg, and it is coming to teach us 'Dumya de'Shogeg'; namely, just as Shoro is be'Shogeg, so too, is he be'Shogeg, an he is nevertheless Patur because of 'Tana de'bei Chizkiyah'.

Question: At the beginning of 'ha'Nechenakin' (Sanhedrin, Daf 84b) the Gemara establishes the Pasuk of Tana de'bei Chizkiyah with regard to someone who strikes his father?

Refuted Answer: Even though, in the Maskana it learns a wound via 'Im Eino Inyan' from striking an animal ...

Refutation: ... it nevertheless learns from there that it is permitted to let the blood of one's father ...

Question (concl.): In that case, how is it possible to differentiate here between a downward stroke and an upward one?

Answer: Because it speaks here both with regard to Makeh Aviv and to Makeh Chavero - to Makeh Aviv since the Torah writes Haka'ah S'tam, and it does not add "u'Meis" ...

Answer (cont.): ... and to Makeh Chavero via 'Davar ha'Lamed me'Inyano' from the previous Pasuk "Ish ki Yakeh Kol Nefesh Adam", with reference to a murderer.

Source: As is evident in Perek Yotzei Dofen (Nidah, Daf 44b DH 'Ish').

Clarification: And the issue is split two ways - regarding his fellow-Jew in connection with killing him and regarding his father in connection with merely wounding him.

Conclusion: And since the Pasuk is speaking with reference to both issues, it is justifiable to learn (the former) from Makeh Beheimah.

Three Parts: Tana de'bei Chizkiyah is referring to three individual cases ...

Part #1: 'Bein be'Shogeg bein be'Meizid' - refers to a monetary obligation that comes together with Misah, and we learn from it that 'Chayvei Misos Shog'gin are exempt from paying, since we do not differentiate ...

Source: ... since it is in that connection that the Gemara cites it in this Sugya and in 'Eilu Na'aros' (Kesuvos, Daf 35. & 35b) ...

Part #1 (cont.): And it is in this regard that everyone holds of the Hekesh of Tana de'bei Chizkiyah ...

Source: ... as the Gemara states in 'Eilu Na'aros' - 'And who does not hold of Tana de'bei Chizkiyah'?

Part #2: On the other hand, 'bein Miskaven le'she'Eino Miskaven' is not referring to a monetary obligation that comes together with Misah, which we actually learn from a Kal va'Chomer from Shogeg ...

Part #2 (cont.): ... but to exempt him from paying the value of the murdered man ...

Part #2 (cont.): To counter Rebbi, who, in the case of 'Miskaven Laharog es Zeh ve'Harag es Zeh' Darshens from "ve'Nasata Nefesh Tachas Nafesh" - 'Mamon' ...

Part #2 (cont.): And Tana de'bei Chizkiyah now teaches us that, seeing as when he had Kavanah, he is Patur (from Mamon), so too, is he Patur when he did not have Kavanah.

Part #2 (cont.): And it is in this connection that the Gemara cites it in Perek ha'Nisrafin (Sanhedrin, Daf 79b).

Part #3: Whereas 'bein Derech Yeridah le'Derech Aliyah' teaches us that, just as in a case of Derech Aliyah, where Shegagah is not subject to Kaparah and where one cannot take money from the murderer to exempt him, so too, can one not take money in a case of Derech Yeridaso, even though in a case of Shogeg he is subject to Kaparah ...

Part #3 (concl.): ... and it is really coming to exempt Meizid from paying.

Rejected Explanation: Some commentaries explain that we need it to exempt Shogeg from paying in a case of Derech Aliyah just like he is Patur in a case of Derech Yeridah.

Conclusion: However in Perek Eilu Na'aros (Kesuvos, Daf 35a & 35b) the Sugya of 'Lo Yih'yeh Ason' clearly learns the way we explained.

Clarification: It is specifically in such a case, where there is reason to doubt in the first place, that Sumchus argues

Clarification (cont.): ... such as in the case of 'Someone who swaps a cow for a donkey' and 'Someone who sells his Shifchah, and is found to have given birth (in Bava Metzi'a (Daf 100a & 100b) and in cases such as these, where even without their claims Beis-Din already have a Safek on their hands.

Clarification (concl.): But in a case where the Safek is created by their claims Sumchus does not argue ...

Poof: Because according to the opinion that Sumchus argues even by Bari u'Bari, do you think that he would say Cholkim even in a case where one man says to another 'The cloak that you are wearing is mine'?

Conclusion: And in the case where two people are holding a Talis, the Gemara says in Bava Metzi'a (Daf 4a) that if one person is holding it and the other one is clinging on to it, even Sumchus agrees that clinging on to it is not a valid claim.

Question: On what basis does the Gemara say that it is talking about Bari u'Bari?

Refuted Answer: If it is because Sumchus said 'Bari u'Bari' ...

Refutation: ... that is only because if he hadn't, the Gemara would not have been able to extrapolate from the Mishnah that they argue ..

Refutation (cont.): ... seeing as we could then have established the case by Bari u'Bari, according to both opinions.

Answer: What the Gemara means to ask is how we know that the Mishnah can possibly be speaking about Bari u'Bari as well; maybe it is speaking exclusively about Bari ve'Shema? ...

Support: ... like the Gemara will suggest shortly 'The Reisha is speaking in the same case as the Seifa (by Bari ve'Shema)? (And it concludes that) 'In the Reisha, the Mazik says "Lo ki', in which case he must be Bari.

Implied Question: Even though in the first Perek of Kesuvos (Daf 13b and 14a) the Mishnah says 'And he says 'Lo ki' (Not so), only you were raped before I betrothed you, in which case my acquisition was made in error!

Implied Question (cont.): ... and from the Sugya it is clear that his claim is one of 'Shema' ...

Answer: That is because there it is not possible to err, seeing as the husband does not usually know what happened; in our case, on the other hand, if the Tana is speaking about Shema, he should not have said 'Lo ki', since it is possible to err.

Question: Perhaps if he fails to prove his claim, he will receive nothing?

Answer: The Lashon 'ha'Motzi' implies that he needs to bring proof on what he is coming to take from the defendant, but not on what the latter admits.

Query: And when the Gemara answers later 'that he ought to take but doesn't? ...

Answer: ... that speaks where he did not seize it, but where he did, he may keep it.

Conclusion: And according to this, the Lashon 'ha'Motzi' makes sense.

Question: Why does the Gemara not establish the Mishnah like Raban Gamliel, like we find in Perek Shevu'as ha'Dayanim (Shevu'os, Daf 40a, See Tosfos DH 've'Hu') 'Ta'ano Chitin ve'Hodeh lo bi'Se'orin Patur`; ve'Raban Gamliel Mechayev'?

Answer #1: Because the Gemara prefers to establish it like the Rabanan.

Answer #2: Rabah bar Nasan made his statement according to all opinions, and Raban Gamliel only obligates him to swear ...

Proof: Because if he obligated him to pay the value of the barley, from where would he (Rabah bar Nasan) know that the Rabanan argue with him in that point, perhaps they only argue in connection with a Shevu'ah, since the Torah writes "Ki hu Zeh" - that the admission must be of the same species as the claim?

Disproved Refutation: And if you will suggest that, according to Rabah bar Nasan, for the same reason that the Rabanan exempt him from a Shevu'ah, it is also not considered an admission to obligate him to pay barley ...

Refutation: ... that is not correct ...

Source: ... since the Gemara states in 'Shevu'as ha'Dayanim' (Ibid., Daf 40b) 'Ta'ano Chitin u'Se'orin, ve'Hodeh lo be'Achad meihen. Patur' ...

Proof: ... and there it is obvious that he is obligated to pay what he claimed, yet he is Patur from a Shevu'ah.

Conclusion: We must therefore say that Rabah bar Nasan exempts him from paying the value of barley according to both opinions (even that of Raban Gamliel), because he considers it a S'vara that he is Patur from paying, since the claimant admits to him that he is not Chayav barley and is Mochel him ...

Conclusion (cont.): ... and it is specifically with regard to a Shevu'ah that they argue, as to whether one requires the same species as the claim (or not).

Implied Question: From the Seifa itself one cannot ask ...

Answer: ... since it is possible to say that, seeing as there is a partial admission - for when all's said and done, he did admit that at least the smaller ox did the damage - Sumchus says 'Cholkim', even though the Nizak claims 'Shema' and the Mazik, 'Bari'.

Question: Why do we not say 'Bari ve'Shema, Bari Adif', like Rav Yehudah says in 'ha'Gozel Basra ' (on Daf 118.), in the case of 'Manah li be'Yad'cha' and the defendant counters 'Eini Yode'a'.

Answer: The Bari there is a good one - since he would not dare lie, seeing as friend will probably know if he lies; whereas the Shema is not good - since he cannot remember whether he is Chayav to pay him, making it clear that he is Chayav.

Answer (cont.): Whereas the Bari in our case is weak - since he knows that his friend cannot disprove him, which is why he claims 'Bari'; and the reason that his friend says 'Shema' is because he did not see what happened. Therefore we cannot apply the principle 'Bari Adif'.

Question: But the Mishnah says 'Lo ki', implying that the Mazik's claim is Bari?

Answer: The Tana is speaking about Bari u'Bari as well.