Clarification: According to Rava, the Mishnah cannot go like Rebbi Akiva ...

Reason: ... because, since they are partners, the Gemara in 'ha'Meni'ach' (Daf 34a) says that 'If the Mazik weakens or improves the animal, it is in their joint R'shus.

Conclusion: It must therefore go like Rebbi Yishmael.

Refuted Source: From Rava's ruling in Perek Kol ha'Asurin (Temurah, Daf 30b & 31a) and in Perek ha'Nisrafin (Sanhedrin, Daf 80a & 80b [See Tosfos, DH 'Ubar]) that 'The fetus of an animal that was raped or that gored is forbidden', since 'It and its fetus gored, it and its fetus were raped' one cannot prove that 'Ubar Yerech Imo Hu' ...

Reason: ... since the reason there is because the fetus itself derived benefit from the rape, and both it and its fetus gored and were raped.

Current Source: From our Sugya however, one can prove it, from the fact that if the cow is not available to pay, one can claim from the baby - and if not for the fact that it is 'Yerech Imo', why should it be possible to claim from the baby its portion plus that of the cow?

Proof: If two oxen that are Tamim gored and one of them got lost, would one also be able to claim its portion from the remaining one?

Question: Rava himself holds in Perek Beheimah ha'Maksheh (Chulin, Daf 75a) that if someone who Shechts a T'reifah animal and finds a nine-month old baby inside it, it (the baby) is permitted ...

Reason: ... because 'the Torah declares Kasher four Simanim'.

Answer: The Ri explains that an Ubar is always considered Yerech Imo, except for in the realm of T'reifus ...

Reason: ... because, since it lives independent of its mother, it is not possible to say that it became a T'reifah together with her.

Halachah: And this is indeed the Halachah, that 'An Ubar is always considered the Yerech Imo, except for in the realm of T'reifus'.

Implied Question: Even though in Perek Kol ha'Asurin (Temurah, Daf 30b and 31a) Rav Huna bar Chanina Amar Rav Nachman establishes the Machlokes Tana'im there where the animal became pregnant before it was raped, and where Rebbi Eliezer holds 'Ubar Yerech Imo Hu', and the Rabanan 'Ubar La'av Yerech Imo Hu' - despite the fact that the fetus derived pleasure from the rape? ...

Answer: ... the Halachah is not like that, only like Rava Amar Rav Nachman there, who establishes the Machlokes where the animal became pregnant after it was raped, and they are arguing over 'Zeh ve'Zeh Gorem'; but if it became pregnant first, they both agree that it is Asur.

Consolidation: And that Lashon of Rava Amar Rav Nachman is the correct one, seeing as the Gemara in Perek Kol ha'Tzelamim (Avodah Zarah, Daf 46b) cites it in connection with the Sugya of 'Someone who prostrates himself to standing corn'.

Support: And that is also implied in Temurah, in Perek Keitzad Ma'arimin (Daf 25a) where the Gemara concludes 'Tiyuvta' de'Rebbi Yochanan, Tiyuvta'.

Implied Question: And even though the Gemara writes after that 'Leima Tana'i hi?' ...

Answer: It is the way of the Gemara regarding an opinion that is not accepted, to conclude 'Tiyuvta', even where it is possible to find Tana'im who argue over the matter ...

Proof: ... like we find in Perek ha'Nizakin (Gitin, Daf 53b) where the Gemara concludes 'Tiyuvta' on the opinion that holds 'Hezek she'Eino Nikar is considered a Hezek', and continues 'Leima Tana'i hi?'

Implied Question: And even though the Gemara in Perek ha'Areil (Yevamos, Daf 78a & 78b [See Mesores ha'Shas]) cites the ruling of Rebbi Yochanan in Temurah, and queries it from what Rava said 'Nochris Me'uberes she'Nisgayrah, B'nah Ein Tzarich Tevilah', and it answers be'Dochek that an Ubar is different ...

Answer: ... that is not because Rebbi Yochanan is Halachah, but rather because the Gemara wants to establish Rava's ruling concerning a Nochris unanimously.

Proof: Seeing as Rava himself holds here that 'Ubar Yerech Imo hu'.

Implied Question: And when the Gemara in 'Eilu T'reifos' (Chulin, Daf 58a & 58b), in connection with the Machlokes Rebbi Eliezer and Rebbi Yehoshua regarding the fetus of a T'reifah, says that they both agree that the egg of a T'reifah chicken is forbidden. Why? Because, since it is attached to the body, it is like part of the body' ...

Answer: ... that speaks specifically about eggs that are attached to the red nerves that one finds in the chicken's stomach, which are therefore considered part of the chicken.

Clarification: And the reason that one cannot claim from the eggs of the chicken is because 'How do we know that they were attached to it when the chicken caused the damage?

Clarification (cont.): And even according to Sumchus, one cannot claim at least from an egg that was laid today, since it (any egg that was laid today) was completed yesterday ...

Clarification (cont.): ... yet regarding a T'reifah it is forbidden ...

Clarification (cont.): ... because it may well be that it was joined at the time that the chicken became a T'reifah.

Clarification (concl.): And even those that were laid immediately after it became a T'reifah, are forbidden due to a Gezeirah de'Rabanan

Source: Just as they forbade the egg of a chicken that is a Neveilah, as we learned in Maseches Iduyos (Perek 5, Mishnah 1), that Beis Hillel forbid it.

Reason: And the reason that they declared Asur the egg of a Neveilah, is presumably due to the egg of a T'reifah which grew be'Isur, even though it (the egg of a Neveilah) is already complete (See Mesores ha'Shas).

Question: Why does the Gemara not add 've'Chein Atah Motzei be'Shumas D'mei V'lados', based on the Mishnah later (Daf 48b) which rules that one assesses the woman's value on account of the fetuses before she gave birth and how much she is worth after she gave birth ...

Question (cont.): And we do not assess the value of the babies independently, since that would cause the Mazik an excessive loss, so one assesses them together.

Question (cont.): And even Raban Shimon ben Gamliel only argues with the Rabanan in that, if one were to assess them like that, the Mazik would be Patur, since (in his opinion) the woman improves more after she has given birth ...

Question (cont.): ... He is not coming to say that one should assess the babies independently, since he does not give a reason to say why one should.

What Raban Shimon ben Gamliel Says: Only according to Raban Shimon ben Gamliel one assesses the babies together with the woman, how much a pregnant woman would fetch on the market on her own, less than what she is worth together with the fetuses.

Answer: The Ri therefore explains that, according to both the Rabanan and Raban Shimon ben Gamliel we assess the babies independently, and not as part of the woman ...

Answer (cont.): ... because, since the body of the woman is not the property of her husband, and also as regards the payment of other damages, they do not belong to him, one cannot assess the babies together with the woman, in the same way as one assesses the babies together with the cow.

Answer (concl.): And as for the Mishnah, it is not speaking about assessing the babies but about the increase in her value that is caused by the fetuses. And that is why the Gemara does not bring a proof here from the value of the fetuses.

Proof: And so it seems that the Mishnah is not speaking about the assessment of the baby at all, according to the opinion that cites Raban Shimon ben Gamliel as saying 'Since when is the value of a woman higher before she gives birth than afterwards?'

Question: But surely it is highly logical to say that her value plus that of the fetuses is higher than that of her value alone after the birth?

Answer: It is therefore clear that the Rabanan and Raban Shimon ben Gamliel are only referring to the assessment of the increase in her value on account of the fetuses, but as far as the latter is concerned, they both agree that we assess them independently.

Clarification: And this is now what the Mishnah is saying: 'How does one assess the value of the babies? Do not say that he only has to pay D'mei V'lados, because 'One (also) assesses the woman ... (Sh'vach V'lados)', and one adds that on to the 'D'mei V'lados' ...

Clarification (cont.): ... but the value of the fetuses themselves the Tana does not need to mention.

Implied Question: And when the Gemara asks that the 'D'mei V'lados' is really 'Shvach V'lados?' ...

Answer: ... it does not mean to say that the value of the fetuses is included in the evaluation of the woman, but the Mishnah mentions it because they are in addition to the value of the fetuses, as Tosfos just explained.

Clarification (concl.): And when the Gemara answers 'How does he pay the D'mei V'lados and the Sh'vach V'lados? We assess the value of the woman ... ', that explains the Sh'vach V'lados. The D'mei V'lados requires no explanation.

Clarification: The Makshan thinks that, since the cow and the fetus are two bodies, we reckon the latter independently.

Clarification (cont.): ... and it is not comparable to the hand of an Eved ...

Reason: ... since the entire body of the Eved is one entity.

Reason (cont.): And likewise the field of the Nizak is like one entity.

Clarification (Question): Hence the Gemara asks 'If that is the Din', as seems logical, seeing as they are two bodies - 'Let the Mazik lose?' ...

Clarification (Answer): ... to which the Gemara replies 'Here too, it is considered one body, since he (the Mazik) can say to the Nizak 'I damaged a pregnant cow!'

Implied Question: It is not comparable to Sh'vach V'lados, all of which goes to the husband according to the Rabanan, and which they divide according to Raban Shimon ben Gamliel ...

Answer: ... because here, since the owner of the cow is able to sell the cow without the fetus, it transpires that when the damage occurs, it causes him to lose whatever depreciation there is (including that of the fetus).

Answer (cont.): The woman, on the other hand, is not able to sell her Sh'vach, (of her baby). In which case her 'strength' does not increase via the improvement of the babies ...

Implied Question: ... even though with regard to other damages to her body, she can claim, despite the fact that she cannot sell herself ...

Answer: For the above reason the owner of the cow has more 'strength' in the improvement of the fattening than the woman (in the improvement of the fetuses) both according to the Rabanan and according to Raban Shimon ben Gamliel.

Conclusion: And by the same token, according to the opinion that in the case of Nafcha (where it became fatter) 'Cholkin', the 'strength' of the owner of the cow via the 'fattening' is more than that of the woman via the improvement of the fetuses according to the Rabanan.

Clarification: The Tana needs to mention all three cases - in the form of 'Lo Zu Af Zu' (progressive Chidushim) ...

Clarification (cont.): ... because had he mentioned 'pots', we would have thought that with permission, the Ba'al ha'Bayis is Chayav, because, since they break easily, we assume that S'tam, he assumed responsibility for them, but with fruit, that is not the case ...

Clarification (concl.): Whereas had he mentioned 'fruit', that is because they become easily spoilt, but with an animal, that is not the case.

Question #1: The Ri asks why the Gemara does not extrapolate the same thing from the beginning of the section, where it says that if he entered without permission and the owner's cow broke them, he is Patur', implying that if he entered with permission, the owner is Chayav, because S'tam, he (the owner) undertakes to guard it, like the Rabanan ...

Question #1 (cont.): ... a Kashya on 've'Im Huzkah bahen, Ba'al ha'Kedeiros Chayav', which goes like Rebbi?

Question #2: In fact, one could ask on the section itself that the Reisha and the Seifa go like the Rabanan, and the middle, like Rebbi'?

Answer: One cannot extrapolate from the Reisha, since it can go entirely like Rebbi, and it only mentions 'She'Lo bi'Reshus' (in the Reisha), because it wants to state 've'Im Huzkah bahen, Ba'al ha'Kedeiros Chayav'.

Refuted Answer: It cannot however, say that it goes entirely like the Rabanan, and it mentions she'Lo bi'Reshus in order to learn 'Shavrasan Beheimah shel Ba'al ha'Bayis, Patur' ...

Refutation: ... because it would not be necessary to tell us that, since the Tana specifically says in the Seifa 've'Im Hichnis bi'Reshus, Ba'al ha'Chatzer Chayav'.

Question: In the section of 'Hichnis Shoro', how can the Tana say that if it gored the owner, it is Chayav, Davka if it is she'Lo bi'Reshus, implying that with R'shus, he is Patur ...

Reservation: It may be in order to say 'Patur' regarding pots and fruit, because since the owner's animal was damaged automatically, he should indeed be Patur according to Rebbi, who says that S'tam the owner does not undertake to guard it ...

Question (cont.): But why should he be Patur where his ox gored that of the owner even according to Rebbi, who says that he does not undertake to guard it, Let it be a Chatzer belonging to partners, and in the Chatzer of partners he would be Chayav?

Answer: The Gemara currently holds that according to Rebbi, if he brings his ox into the Chatzer with permission, it is as if he specified that each one will be Patur for the gorings of his ox and for all damages.

Conclusion: In actual fact however, Rebbi holds that if one brings in one's ox with permission, if it damages, he is Chayav and if it is damaged, he is Patur.

Source: ... as the Gemara states later on (48b) in the case of 'Bring in your ox and I will guard it'.

Implied Question: This is not comparable to the case of 'The room is in front of you (Put your money there)!' in Perek ha'Zahav (Bava Metzi'a, Daf 49b) ...

Answer: ... since he is merely 'Showing him the location'.

Answer (cont.): And even if he pays the owner, the Gemara says there that he does not undertake to guard it ...

Reason: ... seeing as the remuneration that he receives is, not for guarding it but for the room.

Refuted Reason: One cannot attribute the P'tur to the fact that it is considered an unusual wind ...

Refutation: ... since the Gemara will say shortly say, in the case of bi'R'shus, where the animal was eating wheat, and it had a bout of diarrhea and died, the owner is Chayav, because 'bi'Reshus' implies accepting responsibility'.

Refutation (cont.): So what if it does, bearing in mind that a Shomer Chinam is Patur in a case of an unusual wind ...

Source: ... as we learned at the beginning of 'ha'Meni'ach (on Daf 27b)?

Authentic Reason: The reason therefore must be because since it deliberately imbibes something that damages it, it would not be correct to obligate the owner on account of it.

Implied Question: The reason that it does teach us the same thing with regard to other fruit is ...

Answer: ... because poison is a Chidush, inasmuch as he is Patur be'Dinei Adam, despite the fact that he put something in front of it that was bound to destroy it.

Chidush: This is a Chidush, in that, even though the owner benefits from the income from the mill, he nevertheless requires permission.

Question: But the Gemara said a little earlier that the owner undertakes to guard it even against a regular wind?

Answer #1: The Gemara is asking here whether the earlier statement (of Rava) was perhaps just a Dichuy (a pushed answer) or not.

Answer #2: Moreover, the Gemara is asking here about guarding against unforeseen damages, such as animals belonging to others, which the owner does not take into account might enter his courtyard and gore the guest's ox.

Exception: ... whereas the possibility that the ox wanders out of the courtyard and is gored by other oxen, he does not need to ask ...

Reason: ... because it is obvious that he accepts responsibility even against the damage caused by outsiders, since the ox left the courtyard.

Question: Why can he (the owner of the fruit) not claim from the owner of the ox?

Answer #1: Because it speaks where the ox belongs to a Cheresh, Shoteh or Katan, from whom one cannot claim.

Answer #2: Alternatively, he claims from the owner of the Chatzer, who claims in turn, from the owner of the ox.