Question: For the same reason, a covering a Bor should not suffice due to the D'rashah of Rebbi Nasan?

Answer #1: The rectification of a pit via a cover is superior to that of a goring ox.

Answer #2: One can also answer that even though the Gemara initially thought that Rebbi Eliezer was speaking about payment, now that it establishes his reason like Rebbi Nasan, it is no longer speaking about payment, but merely about the prohibition of retaining it ...

Answer #2 (cont.): ... and that applies to a pit as well; but he agrees that if the owner guards it properly and it subsequently damages, he is Patur.

Answer (concl.): It will definitely not suffice however, with an inferior Shemirah ...

. Reason: ... seeing as it is forbidden to retain it.

Conclusion: And that is why the Gemara concluded above (on Daf 45b) that t'The author is Rebbi Eliezer.

Question: The Gemra in Perek ha'Sho'el (Bava Metzi'a, Daf 100a, Tosfos, DH 'mi'Toch') implies that Sumchus only says 'Yachloku' in a case where the ox is standing in a meadow, in connection with 'Someone who exchanges a cow for a donkey' ...

Proof: ... since the Gemara asks there 'Why do they divide it? Let us first see in whose domain it is standing? To which Shmuel answers 'It is standing in a meadow'.

Proof (cont.): And on the Kashya 'Let us place it in the possession of the original owner, the Gemara replies that the author is Sumchus.

Proof (concl.): And since the Gemara did not insert the word 'Ela', it implies that it did not retract from the first answer.

Partial Answer: It is possible to establish the current case where it is indeed standing in the meadow, (at least) according to Rebbi Akiva, who holds 'Yuchlat ha'Shor (le'Nizak); though according to Rebbi Yishmael, who maintains that the Mazik is able to push off the Nizak with cash, it will not work.

Question (cont.): But from the Sugya in 'ha'Meni'ach (above, Daf 35b) which extrapolates that Sumchus colleagues argue with him, and which implies that Sumchus is speaking even by 'Bari u'Bari' (where both parties are sure), and even where the ox is in his house. the Kashya remains ...

Question (concl.): ... seeing as the Gemara here does not establish the Mishnah where it is standing in his house or according to Rebbi Yishmael, who considers the owner a creditor, whom the Nizak can push off with money, so that it should go even like Sumchus.

Question: But he is Chayav a Shevu'ah and cannot swear - sine he admits to part of the damage with regard to the damage performed by the cow, but as far as the damage performed by the fetus, he says that he doesn't know.

Question (cont.): ... and since he is unable to swear, he is obligated to pay ...

Source: ... as Rava states in Perek ha'Sho'el (Bava Metzi'a, Daf 98a & 98b)?

Answer #1: Shmuel however, does not hold of this S'vara, as we see in Perek Kol ha'Nishba'in (Shevu'os, Daf 47a; See Tosfos, DH 'mi'Toch').

Answer #2: Moreover, according to the opinion that holds 'Palga Nizka K'nasa', someone who is Chayav a Shevu'ah cannot be more stringent than someone who admits that he is Chayav, and someone who admits that he is Chayav to pay a K'nas, is Patur.

Answer #3: Furthermore, says the Ri, they are not at all comparable, since the reason that someone who is unable to swear must pay, the Gemara explains in Perek Kol ha'Nishba'in (Ibid.) is due to the D'rashah "Shevu'as Hash-m Tih'yeh bein Sheneihem", 've'Lo bein ha'Yorshim' ...

Answer #3 (cont.): ... and the Gemara there establishes the case where the claimant said to the defendant 'Your father has a Manah that belonged to my father!', to which the latter replied 'Fifty Zuz I know about, but the other fifty, I don't', for which his father would have been Chayav a Shevu'ah (but he is not).

Problem: We are now forced to search for a reason as to why the father would have been Chayav, and the heirs are Patur, since we cannot say such a thing without a good reason.

Reason: ...as the Gemara says there - 'If he would say that he has fifty but not the other fifty, what difference does it make whether it is he or his father'?

Resolution: The reason therefore is that the father is Chayav when he says that he doesn't know, because he ought to know whether he owes the claimant a Manah or not, whereas the heirs cannot be expected to know the affairs of their father.

Resolution (cont.): And the same reason applies to exempt the defendant in our Sugya, who cannot know whether the cow gave birth after it gored or before.

Question: The Gemara here implies that Rav Yehudah does not hold of the S'vara 'Bari Adif', whereas later, in the last Perek (Daf 118a) and in 'ha'Sho'el' (Bava Metzi'a, Daf 97b [See Tosfos there DH 'Rav Huna']) in a case of 'Manah li be'Yadcha ve'Halah Amar "Eini Yode'a" ' Rav Yehudah Amar Rav is Mechayev because 'Bari Adif'?

Refuted Answer: We cannot answer that here, Rav Yehudah says it in the name of Shmuel ...

Refutation: ... because at the end of the first Perek of Kesuvos the Gemara wants to say that the opinion of Rav Yehudah and Rav Huna is that of Shmuel.

Refutation (cont.): According to that S'vara in fact, the Kashya will be from Shmuel on to Shmuel.

Answer: ... as Tosfos explained earlier (Daf 35b DH 'mi'de'Seifa'), because there his Bari is a sound one, since he knows that his disputant will contradict him if he lies, besides the fact that the latter ought to know whether he is Chayav or not. Consequently, when he claims 'Shema', it is clear that the other one's 'Bari' is telling the truth, and we say 'Bari Adif' ...

Answer (cont.): ... whereas here, the Nizak only claims 'Bari' because he knows that the Mazik was not present at the time of the goring, and the Mazik justifiably responds 'Shema' because he cannot possible know, in which case his 'Bari' is not sound.

Question: And at the end of the first Perek of Kesuvos (Ibid.), when the Gemara wants to say that Rav Huna and Rav Yehudah are quoting Shmuel, before it reaches its conclusion to the contrary, it could have pointed out the contradiction in Shmuel himself ...

Question (cont.): ... inasmuch as there Shmuel Paskens like Raban Gamliel, who rules that the girl is believed, in the case where she claims that she was raped after she became betrothed', even though her husband could not have known when the rape took place ...

Question (concl.): ... whereas here, Shmuel concedes that we do not say 'Bari Adif' there where the Bari is weak?

Answer: Only we find in many places that the Gemara could have retorted 'And according to you ... ?', but doesn't.

Implied Question: And the case in 'ha'Bayis ve'ha'Aliyah (Bava Metzi'a, Daf 116b, Tosfos DH 'Leima') where, if one person recognized his stones (from the partitioning wall that collapsed), he may take them, where the Gemara explains that the other person says that he does not know ...

Implied Question: ... and the Gemara asks 'Let this be a Kashya on Rav Nachman?', implying that there is no problem with Rav Yehudah (even though one would think that a person cannot be expected to recognize his stones, in which case the 'Bari' is a weak one)?

Answer: There it is common for each of the owners to recognize some of his stones.

Proof: ... and that is evident, since it establishes the case where the defendant is Chayav a Shevu'ah to the claimant, in which case, if he would not be expected to recognize his stones, we would not say 'Mitoch she'Eino Lishava, Meshalem', as Tosfos explained a little earlier.

Implied Question: And as for the case that we learned in the Mishnah in 'Yesh Nochlin' (Bava Basra, Daf 134a and 135a [See Tosfos, DH 'Aviv'.), where one of the brothers claims 'Zeh Achi' ', he is not believed, and the latter shares his portion with him' ...

Implied Question (cont.): ... the Gemara there establishes the case where the other brothers say that they do not recognize him, and the Gemara extrapolates from there that 'Manah li be'Yadcha, ve'Halah Omer "Eini Yode'a", Patur', even though it is a weak 'Bari' ...

Implied Question (cont.): ... seeing as the brothers cannot be expected to know that he is their brother, since what can they know about the person who appeared on the scene from overseas?

Answer #1: The Gemara there, anyway refutes the inference, and doesn't bother to retort 've'le'Ta'amech?'

Answer #2: Furthermore, one can explain there that when the Gemara suggests 'That means that "Manah li be'Yad'cha" ve'Hala Omer "Eini Yide'a", Patur' it is referring to a case where the 'Bari' is weak and the 'Shema', sound, similar to the case cited in the Mishnah there.

Halachah: It implies here that the Halachah is not like Sumchus ...

Source: ... since Shmuel does not hold like him.

Conclusion: And in the Sugya of 'Kol de'Alim G'var' in Perek Chezkas ha'Batim (Bava Basra, Daf 35a, Tosfos DH 've'Lechzi') Tosfos elaborates.)

Explanation #1: The Rav Rabeinu Yitzchak bar Mordechai explains that even the Rabanan who say in 'ha'Mocher es ha'Sefinah' (Bava Basra, Daf 77b) that if someone sold the yoke, he has not sold the oxen, because they don't hold that 'the money indicates' ...

Explanation #1 (cont.): ... will concede here (that it does) ...

Reason: Because they are speaking with regard to a yoke, where there is both a Rov and a Chazakah, since most people call a yoke 'a yoke' and cattle 'cattle', in addition to which the seller is Muchzak on the oxen) ...

Implied Question: And even according to the Sefarim that do not have the text 'Ruba' ...

Answer: Nevertheless, the money alone cannot take out of the Chazakah.

Answer (cont.): Whereas here where most people sell for plowing and there is a Chazakah against the Rov, since the seller is Muchzak, even they will agree that the money assists either the Rov or the Chazakah.

Explanation #2: However the Rashbam in 'ha'Mocher Peiros (Ibid., Daf 92a, Tosfos DH 've'Lechzi'), explains it differently.

Alternative Text: Some have the text 'I de'Leisa le'Hani Zuzi' - implying that if the money given by the purchaser to the seller is not available, then even if he has other money, he is not obligated to give him money.

Refutation: Rabeinu Tam however, disagrees with that, because, since the sale turns out to be a false one, it is logical to say that he has the Din of a debtor, who has money and who cannot push off the creditor with anything else ...

Source: ... as is evident in Kesuvos, Daf 86a & 86b) in the case lf where the lender claimed that his money belonged to a Nochri.

Three Dinim: Rabeinu Tam explains that there are three Dinim - 1. that of a loan; 2. that of damages and 3. that of a hired laborer.

A Loan: If the borrower has money, then he cannot push off the creditor with anything else, as Tosfos just explained; But if he does not, then the creditor cannot tell him to go to the trouble of selling whatever he has and bringing him money ...

Source: .. as the Gemara says in 'ha'Kosev' (Ibid.) and in our Sugya, which quotes a popular mantra that one should be prepared to accept even dung from one's debtor.

Damages: Regarding damages on the other hand, the Mazik is permitted to push off the Nizak with land, according to Rav Huna, who says 'Either Kesef or Meitav', whereas according to Rav Papa and Rav Huna b'reih de'Rav Yehoshua (above, Daf 7b), everything is considered 'Meitav'.

A Laborer: And as for a hired laborer, even if the employer has no cash, we tell him to take the trouble and bring cash.

Reason: Because by a laborer we do not tell him to accept even dung from 'his debtor' - as is evident from 'ha'Bayis ve'ha'Aliyah' (Bava Metzi'a, Daf 118.)

Explanation #1: Rashi explains the case where Reuven claims from Shimon the Manah that he lent him, to which Shimon replies that he (Reuven) seized something of his, and demands that he return it, or that he had a security of his, which decreased in value because he used it.

Explanation #1 (cont.): We first deal with Reuven's claim and exact the Manah from Shimon, before dealing with Shimon's claim concerning the seized article or the security.

Clarification: According to Rashi, we will have to say that it speaks where Reuven has a Sh'tar on the Manah ...

Proof: ... otherwise, Shimon would be believed, even if Reuven had witnesses

Reason: ... since 'Someone who borrows money in front of witnesses, is not obligated to pay back in front of witnesess'.

Question: How does it speak? If Shimon has witnesses who are immediately available or if he claims that he will bring them within thirty days that Reuven seized what is his, why should Reuven claim first, seeing as if someone asks for thirty days to pay one's debt, one gives it to him, as that is Z'man Beis-Din' (Shevu'os, 41b) ...

Question (cont.): ... whereas if he says that he will bring his witnesses after thirty days, then we would not listen to him, even without a Pasuk, even if this would cause the price of his property to drop ...

Reason: ... because if someone were to state that he will bring witnesses after a year, would Beis-Din listen to him?

Answer: It speaks where Shimon claims that P'loni and P'loni were there when it happened, and they know that his claim is true, and we know for a fact that the witnesses were present at that time ...

Answer (cont.): ... because, if not for the Pasuk, we would have thought that one should wait for them to arrive, even if it will take a long time until they do.

Explanation #2: Others explain that it speaks where Reuven claims that Shimon wounded him, to which Shimon replies that he has other claims against him (Reuven), we first settle Reuven's claim against Shimon ...

Explanation #2 (cont.): ... even though Shimon claims that he will bring witnesses today or tomorrow, we do not wait for him at all

Source: ... since we Pasken in 'ha'Chovel' (on Daf 91a) that one does not allow a time-period by Chavalos (wounds) ...

Support: ... and it is preferable to explain the issue with regard to Chavalos than a loan ...

Reason: ... since the Gemara in Perek Echad Dinei Mamonos (Sanhedrin, Daf 35a Tosfos DH 'Ashru') quotes the Pasuk 'Ashru Chamotz' (which implies theft, which in turn, is similar to wounding) in connection with the current Halachah.

Question: How can the Gemara equate the fetus with the cow ...

Question (cont.): It is obvious that the fetus did not cause the same amount of damage as the mother? If Reuven owned nine parts of the Mazik, and Shimon, one, would Shimon pay the same amount of damages as Reuven, in the way that he would if half the animal belonged to him? ...

Proof: ... Did we not explicitly learn in Perek Arba'ah va'Chamishah (above, Daf 36a) that 'The last one takes a Manah, the one behind him, fifty Zuz and the first two, a golden Dinar (twenty-five Shekalim) each' - implying that each one loses in proportion to what he owns in the ox.

Answer: The Riva therefore explains that the amounts mentioned are merely an example, as if the fetus caused half the damage, but in reality, it pays only a quarter of the damage that it caused ...

Answer (cont.): ... so that, if the cow was worth eighty Zuz without the fetus, and a Manah, with it, and half the total damage that they caused is a Manah (where for example, it damaged an ox worth two hundred Zuz), and where it transpires that one fifth of the damage was caused by the fetus ....

Answer (concl.): ... Had the fetus been a definite partner in the damage, then he would have taken the cow plus the fetus, but now that it is Safek, he takes half the fetus - ten Zuz, which is a quarter of the damage caused by the fetus.

Clarification: Now that the Nizak admits that he (the owner of the cow) has a partner (the owner of the fetus) he only needs to pay half of the payment, whereas the other half the owner of the fetus is not obligated to pay, since the goring may have taken place after it was born ...

Clarification (cont.): ... and they therefore divide it.

Rebbi Nasan: And even according to Rebbi Nasan, who says (on Daf 53a) that 'What one cannot exact from the one, one takes from the other', will concede here ...

Proof: ... because until now, Rebbi Nasan only said his Din in the case of a Shor Tam that pushed its 'friend' into a pit, where one can only obligate the owner of the ox to pay a quarter, even though his ox definitely damaged. And the reason that one can claim the balance from the owner of the pit is because ultimately, it is the pit that killed the ox.

Proof (cont.): Whereas here, where, if the fetus was inside its mother during the goring, it is Chayav to pay, and there is no reason for the mother to pay in its place.

Clarification: Because we place the cow on a Chazakah that it was pregnant and that it just gave birth.

Clarification (cont.): And Sumchus concedes that, since there are two things - a. he is Muchzak and b. a Chezkas Gufah, we say 'ha'Motzi me'Chavero alav ha'Re'ayah'.

Clarification (concl.): Consequently, the owner of the cow pays only a quarter, as if he definitely has a partner.

Reservation: The Chazakah is not effective however, to exact money from the owner of the fetus ...

Reservation: (cont.): In which case he is only obligated to pay an eighth of the damage; the other eighth the Nizak loses.

Precedent: Similarly, we find in the case of 'ha'Machlif Parah ba'Chamor', which the Gemara in 'ha'Sho'el' (Bava Metzi'a, Daf 100a [See Tosfos DH 'Ha']) establishes like Sumchus, and where we do not say 'Place it on its Chazakah to say that it gave birth now', in order to exact money from the Chazakah of the original owner.

Question: The Ri asks that in Perek ha'Sho'el (Ibid, Daf 97b and there 98b) the Mishnah states that there where both claim that they do not know (when the animal died) 'Yachloku', in the case of 'Sha'alah ha'Yom ve'Sachrah le'Machar', which the Gemara establishes like Sumchus.

Question (cont.): Why do we not place it on its Chazakah and say that it gave birth now, to place the money in the hands of the Sho'el, and to exempt him from paying?

Answer: Presumably 'Yachloku' does not go on 'Sha'alah ha'Yom ve'Sachrah le'Machar', but on Sha'al Achas ve'Sachar Achas'.