Implied Question: And as for the Gemara in the first Perek of Kesuvos (Daf 11a & 11b) which implies that Rava does not hold of that reason - in connection with 'A Giyores who converted before she turned three' ...

Implied Question (cont.): ... where Rava understands that if she was able to object (to the conversion) from the time that she grew up, she would not be subject to a K'nas ...

Answer: That is not comparable to here, since there, strictly speaking, she should not be subject to a K'nas at all, and we do not say that she is, is in order that the sinner should not benefit.

Answer (cont.): .. whereas here, where, min ha'Din, she ought to be subject to a K'nas, only we want to penalize her, it is logical to say that, on account of 'she'Lo Yehei Chotei Niskar', we give what she is entitled to min ha'Din.

Implies Question: And in Perek Eilu Na'aros (Kesuvos, Daf 36b, too) he holds 'she'Lo Yehei Chotei Niskar' in the case of a bas Yisrael who was captured ...

Answer: ... because we establish her on her initial Chazakah of Kedushah.

Question: Why do Beis-Din not appoint an Apotropus?

Refuted Answer #1: We cannot say that it is because 'Beis-Din only deal with property (of Yesomim) that has Achrayus (Karka) ...

Source: ... as the Gemara states in the first Perek (Daf 14:) in connection with 'Shaveh Kesef ' which the Gemara establishes by Yesomim ...

Refutation: ... since it is not comparable, seeing as it speaks there where they damaged in the lifetime of their father, and 'the Metalt'lin of Yesomim are not Meshubad to their creditor'.

Refuted Answer #2: Nor can we say that the reason is due to the principle 'Palga Nizka K'nasa' and 'Yesomim are not subject to K'nas'.

Refutation #1: ... because what will one then say according to the opinion that holds 'Palga Nizka Mamona' (Daf 15a)?

Refutation #2: Moreover, according to the opinion that holds 'the Tzad Tamus bi'Mekomah Omedes' (on Amud Beis), the Nizak should not be able to claim the half-Nezek of the Tzad Tamus even in the case of a Mu'ad?

Reservation: ... in spite of he fact that it is not a K'nas, only Mamon.

Refuted Answer #3: Neither can the reason be because, 'if when he damages he is Patur, because 'contact with him is not financially viable' (as we learned in the Mishnah in 'ha'Chovel'), how much more so his property!' Only by Mu'ad the Rabanan made a Takanah for the benefit of the public ...

Refutation: ... because where the owner traveled overseas, we apply to him the Din of a Cheresh (See Amud Beis), even though the current reason is not applicable.

Refuted Answer #4: We also cannot say that because he pays from the body of the ox, the Chachamim were concerned that he (the Yasom) should not lose his ox, seeing as it is something specific, unlike a Mu'ad, where one pays from anything, which is why they were not concerned ...

Refutation: ... since, according to Rebbi Yishmael, the Nizak is a debtor, and can push him off with money,

Answer: The reason is because, based on the fact that the Torah 'has pity' on the Tam - in that he does not pay full damage, the Chachamim likewise took pity on the Yesomim.

Answer (cont.): And the same applies to someone who traveled overseas, seeing as the ox has no real owner, only via a Takanas Beis-Din by appointing an Apotropus, the Rabanan were lenint.

Answer (cont.): And by the same token, according to the opinion that holds 'Tzad Tamus bi'Mekomah Omedes', Beis-Din will not appoint an Apotropus to claim the Tzad Tamus, since the Torah has pity on him.

Answer (concl.): ... inasmuch as, in the event that the ox is worth less than half the damage, he will only have to pay from the body of the ox.

Question: Why does the Gemara not answer that the Reisha speaks where there was no Apotropus at the time that the goring occurred?

Answer: Because that would be obvious.

Refuted Explanation: One cannot explain that 'they gored' three times and that they appoint an Apotropus so that, should they gore a fourth time, the Yesomim will have to pay full damages ...

Refutation #1: ... because that would be fine if it would be the ox that must become a Mu'ad, but if it is the owner, he will not become a Mu'ad via those gorings.

Refutation #2: Furthermore, this Tana holds 'R'shus Meshaneh' (a new ownership reverts the ox to a Tam) as it says in the Seifa 'It reverts to its Tamus'?

Authentic Explanation: What it therefore means is that the oxen adopted a Chazakah of being 'wicked' and to delight in goring.

Proof: ... like the case later (on Daf 40a) where 'He borrowed it be'Chezkas Tam', which the Gemara establishes that the borrower nevertheless recognized it as a goring ox.

Authentic Explanation (cont.): And even if it had a Chazakah of goring three times, it will not become a Mu'ad until it gores another three times under the jurisdiction of the Apotropus.

Question: The reason that Beis-Din do not deal with the property of Yesomim is because we suspect that their father set aside Tzor'ri (bundles of money) ...

Source: ... as Rav Huna b'rei de'Rav Yehoshua explains in Perek Get Pashut (Bava Basra, Daf 174a & 174b), and there the Gemara rules like him - whereas the reason of ' Tzor'ri' does not apply here?

Question (cont.): ... and Rava in our Sugya too, ascribes the reason in Perek Shum ha'Yesomim (Erchin, Daf 22b & 23a) to 'Shover' (the fact that their father may have a receipt that he has already paid) - which does not apply here either.

Question (concl.): Why does the Gemara then consider Rebbi Yossi b'Rebbi Chanina as having erred?

Answer: Rebbi Yochanan holds 'Ein Nizkakin ... ' under all circumstances - whether it is a loan that they (the Yesomim themselves) initiated ...

Answer (cont.): ... because one cannot accept testimony that is not in the presence of the litigant and Yesomim are always considered as being not present - as is evident in 'ha'Gozel Basra' (later, on af 112a) in connection with the case of 'father-in-law of Rebbi Yirmiyah' ...

Answer (cont.): ... or whether it is a loan that their father made, where Beis-Din do not become involved, even if there is a substantiated Sh'tar, because of 'Shover' and 'Tzar'ri'.

Question: Rather than asking about 'turning Rebbi Yossi b'Rebbi Chanina into someone who erred', the Gemara should have asked from Rebbi Yossi b'Rebbi Chanina on to Rebbi Yossi b'Rebbi Chanina ...

Question (cont.): ... because in 'ha'Gozel Basra' (Ibid., Amud Beis) in connection with the statement of Rebbi Yochanan 'Does one accept witnesses when the litigant is not present?' the Gemara cites Rebbi Yossi b'Rebbi Chanina had a tradition that it speaks where he (the litigant) or the witnesses were sick, or where the latter needed to go overseas and they sent for the litigant to come, but he failed to do so.

Question (concl.): But (one may) not (accept witnesses when the litigants are not present) under any other circumstances?

Answer: Maybe he compares Ketanim to those cases.

Explanation #1: From here Rebbi Chayim extrapolates that Apotropsin do not need to pay, even if they are negligent with regard to property belonging to the Yesomim ...

Proof: ... since here, the Apotropus was negligent with the ox, yet he is Patur from paying.

Implied Question: And as for the Shevu'ah that he swears to the Yesomim, as is implied in 'ha'Nizakin' (Gitin, Daf 52a & 52b) ...

Answer: ... that speaks where he he did not retain anything of theirs, but not that he was not negligent, seeing as even if he was, he is Patur.

Explanation #2: Rebbi Shmuel Bachur b'Rebbi Yosef however, extrapolates that if they are negligent they must pay...

Proof: ... from the Sugya in ha'Mafkid (Bava Metzi'a, Daf 42b DH 'Neima') in the case of an ox that had no molars and no teeth ... ', where, in reply to the Gemara's Kashya that the Apotropus should be obligated to pay, answered that he handed it to the cowhand ...

Proof (cont.): ... implying that had he been negligent, he would have had to pay.

Question: The above two Gemaros contradict one another?

Answer (cont. from Amud Alef): The Ri explains that the Apotropus is certainly Chayav to pay if he is negligent, yet people will not refrain (from volunteering) irrespective of whether it is the father or Beis-Din that appoints him (for one of the reasons given in 'ha'Nizakin' [Gitin, Daf 52b & 53a).

Answer (cont.): ... whereas in the current case, where they do not appoint him for the benefit of the Yesomim, since it would have been better for them not to have an Apotropus, but rather for the benefit of the general public, in order that he should look after the ox to prevent it from goring ...

Answer (concl.): ... should one obligate him to pay, he will refrain from volunteering.

Explanation: The Yerushalmi in 'ha'Nizakin' asks 'Does Rebbi Yochanan (who maintains 'me'Aliyas ha'Yesomim') hold like the Rabanan (who say that if Beis-Din appoint an Apotropus, he does not need to swear)?

Explanation (cont.): And it answers that he can hold even like Aba Shaul who says that if Beis-Din appoint him, he does need to swear', because that man (the Apotropus) is willing to pay money in order to be called 'a reliable person'.

Explanation (cont.): In other words, he will not refrain from volunteering on account of the fact that he will have to pay if he is negligent, since he is content with the knowledge that this makes him important to the point that Beis-Din appoint him ...

Explanation (concl.): .. whereas in the case of an ox, the same appointment does not render him 'a reliable person', since it is not on behalf of the Yesomim, but rather that the ox should not damage others, in which case he is considered merely as a regular Shomer, since he guards the ox against goring.

Question: Then the Yerushalmi asks whether Rebbi Yossi b'Rebbi Chanina (who maintains 'me'Aliyas ha'Apotropus') holds like Aba Shaul (who says that if Beis-Din appoint an Apotropus, he is obligated to swear)?

Answer: And it answers that he can even hold like the Rabanan; because a person tends to run away from an oath, but not from paying ...

Answer (cont.): In other words, he will refrain from volunteering due to the oath that he will have to take that he did not retain anything belonging to them.

Answer (cont.): And presumably, even if something belonging to the Yesomim gets lost, that he does not swear that he was not negligent, because if he did, he would refrain from volunteering.

Conclusion (concl.): ... but in our case, he is not concerned if there are witnesses, or if he himself knows that he was negligent, he will not refrain from volunteering, even though we will force him to pay.

Refuted Answer: And if one will ask that it teaches us 'Ma'amidin Apotropus le'Tam' ...

Refutation: ... then it ought to have said simply 'Rebbi Ya'akov Mechayev' and no more.

Refutation (cont.): ... but since it adds 'Chatzi Nezek', it implies that he needs to teach us that he does not pay full damages.

Implied Question: Rava declines to give this answer ...

Answer #1: ... since the Beraisa does not say 'Rebbi Yehudah Mechayav Nezek Shalem, ve'Rebbi Ya'akov Omer Chatzi Nezek'.

Answer #2: Moreover, Rava understands that, since he did not guard it at all (as Abaye explains), Rebbi Ya'akov ought to have said 'Ein Meshalem ela Chatzi Nezek - since that is the Chidush ...

Answer #2 (cont.): So, since it said 'Meshalem Chatzi Nezek', it implies that the Chidush is that he only pays Chatzi Nezek (which makes no sense according to Abaye).

Answer #2 (concl.): But now that he guarded it with an insufficient guarding, the Chidush is indeed that he only pays Chatzi Nezek.

Answer #3: Furthermore, he (Rava) understands 'Chatzi Nezek' to mean 'mi'Gufo' like 'Chatzi Nezek' everywhere else.

Question: Initially, the Gemara asked 'I be'Tam P'shita', and did not want to say that it is coming to teach us 'Ma'amidin Apotropus le'Tam', as Tosfos explained earlier (DH 'I be'Tam ... ')

Question (cont.) ... because he ought to have then said 'Rebbi Ya'akov Mechayav' ...

Question (concl.): ... and now the Gemara asks why we do not establish it by a Tam?

Answer: Because now, following the Gemara's taking into account the principle 'Tzad Tamus bi'Mekomah Omedes', the Tana can no longer say 'Rebbi Ya'akov Mechayev' ...

Reason: He needs to mention Chatzi Nezek to teach us 'Ma'amidin Apotropus le'Tam', and if he would say simply 'Mechayev', we would establish it by a Mu'ad, but a Tam (we would extrapolate) is Patur, because 'Ein Ma'amidin Apotropus le'Tam'.

Answer (cont.): And he needs to teach us that a Mu'ad pays full damages, to preclude the opinion that 'Tzad Tamus bi'Mekomah Omedes' (part of the Tamus remains when it becomes a Mu'ad).

Answer (concl.): Initially however, before the Gemara considered 'Tzad Tamus ... ', the Gemara was justified in asking 'I be'Tam P'shita?' ...

Conclusion: ... since had it been coming to teach us 'Ma'amidin Apotropus le'Tam', it ought to have said 'Mechayav', which we would automatically have established by a Tam, seeing as we do not need it for a Mu'ad.