QUESTION: Shmuel teaches that "Ein Shamin" -- we do not appraise the payments of a Ganav and Gazlan, but only the payments of Nezikin. The Gemara concludes that for a Sho'el, one who borrowed an item, we do appraise the payment.

What does this "appraisal" mean? The Gemara earlier teaches that a person may pay for damages with any object of value which he appraises to be worth the value of the damage. The Gemara (10b) teaches that for this reason if one's ox gores someone else's ox, the Mazik must pay only the difference in value between the live ox and the dead ox, since he may insist that the Nizak accept the dead ox as the first installment of the payment owed.

In what way is the Halachah of the payment of a Ganav and Gazlan different from the Halachah of the payment of a Mazik? Moreover, the Gemara cites no source for Shmuel's ruling. Why should the payment of a Ganav and Gazlan differ from the payment of a Mazik?

(a) RASHI writes that a Ganav may not return the carcass of an ox he stole as part of the payment for stealing the ox. Rather, he must return a fit ox. For Nezikin, however, the Mazik may pay the dead ox as part of his payment, as the verse says, "veha'Mes Yiheyeh Lo" -- "the carcass shall be his" (Shemos 21:36).

What does Rashi mean? The Gemara earlier explains that this verse, "veha'Mes Yiheyeh Lo," is not necessary to teach that the Mazik may use the carcass as payment because the word "Yashiv" (Shemos 21:34) already teaches that a Mazik may pay back with any form of Shaveh Kesef.

Also, does Rashi mean to say that a Ganav cannot pay back with Shaveh Kesef? The Gemara earlier (5a) says that the acts of stealing of a Ganav and Gazlan are called Avos Nezikin since they must pay from Meitav like the Avos Nezikin, which implies that they may pay with Shaveh Kesef.

It seems that Rashi's intention is to explain the way the MAHARI KOHEN TZEDEK (in the Shitah Mekubetzes) explains. The Mahari explains that Shmuel rules like Rav Huna (9a) who argues with the Gemara earlier (7b) and says that one may not pay for Nezikin, l'Chatchilah, with Shaveh Kesef (see Insights to 9a). According to Rav Huna, the verse "veha'Mes Yiheyeh Lo" indeed teaches that there is one form of Shaveh Kesef which may be used l'Chatchilah, even if the Mazik has Kesef or Meitav (Karka), and that is the Neveilah, the carcass, of the ox that was gored. Rashi explains that Shmuel means to say that a Ganav or Gazlan may not even pay with the Neveilah of the ox that he stole l'Chatchilah when he has Kesef or Karka with which to pay.

The Gemara later (94a) explains why this should be so. The Gemara says that Shmuel's ruling is based on the fact that a Ganav acquires the item that he stole through a Shinuy (by changing it in a significant way). The Mahari Kohen Tzedek says that this explains Shmuel's ruling in the following manner. When one's ox gores another's ox, the carcass remains the property of the Nizak. Therefore, when the Mazik gives the carcass to the Nizak, he is not really "paying" him, but rather he is simply saying that he never damaged this part of the value of the ox (i.e. the carcass). Since it is not a form of payment for damage done, it does not have to be Kesef or Meitav. A Ganav, in contrast, acquires the entire ox when it dies, and therefore the carcass belongs to him. If he returns it to its rightful owner, it can be returned only as a form of payment for the ox that he stole. Since, l'Chatchilah, he must pay back with Kesef or Meitav, this payment is not acceptable.

The RIVAM, as cited by TOSFOS in Bava Metzia (97a; see also RASHBA here in the name of "Yesh Mefarshim"), offers a similar explanation. Like Rashi, he explains that Shmuel refers only to using the carcass as payment. Although a person may pay l'Chatchilah with Shaveh Kesef, Beis Din will never suggest to a person that he pay with Shaveh Kesef when Beis Din sees that he intends to pay with Kesef. However, Beis Din will suggest to a Mazik that he give the Neveilah to the Nizak rather than paying for the value of the carcass, since the Mazik never damaged that part of the animal (as mentioned above), and it still belongs to the Nizak. If a Ganav stole an ox and the ox died, Beis Din will not suggest that he give the carcass back to the one from whom he stole, since he was Koneh the ox through a Shinuy, and thus giving back the carcass is a form of payment, and Beis Din never suggests to a person that he pay with Shaveh Kesef if he does not think of it himself.

(b) RABEINU CHANANEL and the SHE'ILTOS (end of #111) write that a Ganav and Gazlan must pay back a complete ox or a Kli similar to the one that he stole. He may not pay back with Shaveh Kesef. (Tosfos seems to understand this to be Rashi's intention as well.)

Tosfos explains that the source for Shmuel's ruling, according to this interpretation, is in the Yerushalmi (end of Bava Kama 1:1) which derives from the verse, "Asher Gazal" (Vayikra 5:23), that a Ganav must return an item similar to the one he stole. Therefore, a Ganav must pay back the same type of item he stole, or the amount of money of the value of that item.

If the verse says that he must return something similar to what he stole, why should he be able to return money? The Rosh explains that since money is used with ease to purchase a similar item, it is also called "k'Ein she'Gazal." Tosfos Rabeinu Peretz (see Hagahos of Rav Binyamin Zev Prag) cites proof from the Gemara later (66a) that one may repay a Gezeilah with money.

The RASHBA also cites this explanation, but he implies that the Ganav and Gazlan must pay an object similar to what they stole, and they may not pay with money, according to Shmuel.

The Rishonim cite support for this explanation of Shmuel from the incident cited by the Gemara in which Rav told a Sho'el that he must pay back a "complete ax," based on the logic that "Ein Shamin l'Sho'el."

(c) The RASHBAM cited by Tosfos in Bava Metzia (96b) and by Tosfos Rabeinu Peretz here does not accept the explanation of Rabeinu Chananel, that a Ganav may not pay back with Shaveh Kesef, because the Gemara (5a) explains that a Ganav pays with Meitav (like a Mazik). The Rashbam also does not accept that the Gemara here relies on a verse that is expounded only in the Yerushalmi. Therefore, he explains that Shmuel means only that the Ganav does have to pay "Pechas Neveilah," whereas a Mazik does not have to pay Pechas Neveilah, as the Gemara explains earlier (10b).

The logic for this is the same as the logic of the explanation of the Rivam. The reason why a Mazik does not pay Pechas Neveilah is that the Neveilah always remained in the possession of the Nizak, and it lost value while in the Nizak's possession. A Ganav, however, acquires the object that he breaks, and therefore even the remains of the object are his, and he must reimburse the person from whom he stole with the full value of the object. If the carcass of the animal that he stole depreciates before he gives it as payment to its original owner, it has depreciated in his possession and at his expense, and not at the owner's expense. (The Rashbam suggests that this is the intention of the Yerushalmi cited by Tosfos as well.)

QUESTION: Ula teaches in the name of Rebbi Elazar that if a "Shilya" (placenta, or, more specifically, the fetal membranes in which the fetus forms, which are attached to the placenta) partially emerges from the womb on one day and completely exits the next day, mi'Safek it is assumed that the birth occurred on the first day and whatever the woman touched on that day are considered Tamei, because she has the status of a Yoledes. The Gemara explains that Rebbi Elazar's intention is to teach that every part of the Shilya has inside of it some part of the child, and thus if part of the Shilya emerged, then certainly part of the baby also emerged. This implies that if it was possible for part of the Shilya to emerge without any of the baby, the woman would be Tahor on the first day because of a Sfek Sfeika: first, perhaps part of the Shilya that emerged did not include any part of the child, and second, even if it did include part of the child, perhaps it did not include most of the child (or, as TOSFOS says, the head of the child; see TOSFOS RABEINU PERETZ).

Why would the woman be Tahor on the first day if there is a Sfek Sfeika concerning her status? The Halachah is that any Safek Tum'ah in Reshus ha'Yachid is deemed to be Tamei, even when there is a Sfek Sfeika (Taharos 6:4; see Insights to Kesuvos 9a). Hence, the woman should be Tamei in Reshus ha'Yachid even if there is a Sfek Sfeika concerning her Tum'ah. If, on the other hand, she is in Reshus ha'Rabim, she should be Tahor even if every part of the Shilya contains the child and there is only one Safek. (TOSFOS DH d'Ein)

(a) TOSFOS explains that the Gemara here is not discussing whether or not the woman is Metamei Taharos (as Rashi explains), but rather it is discussing the prohibition of the woman to her husband.

What is the difference whether the Sugya is discussing Tum'ah for Terumah or Tum'ah to her husband? The SHEV SHEMAITSA (1:12) explains that Tosfos is teaching that the Isur of a Nidah to her husband is not an Isur of Tum'ah (even though the Isur to her husband comes at the same time as her Tum'ah). Rather, it is a matter of Isur Arayos, and therefore the rules of Safek Tum'ah (which is deemed Tamei in Reshus ha'Yachid and Tahor in Reshus ha'Rabim) do not apply to the Isur to her husband.

Not all Acharonim agree with the Shev Shemaitsa on this point (see SHA'AREI YOSHER 1:13-14). In CHIDUSHEI REBBI SHIMON, the son of Rav Shimon Shkop points out that according to the Shev Shemaitsa, if a woman becomes a Safek Nidah in Reshus ha'Rabim, she should be deemed Asur to her husband even though she is Tahor and permitted to eat Terumah. Also, the fact that the Isur to her husband remains until she immerses herself in a Mikvah for her Tum'as Nidah indicates that the Isur to her husband is related to Tum'ah. He suggests, therefore, that Tosfos' intention is as follows.

RAV CHAIM OZER GRODZENSKY (Achiezer 1:1:2) writes that although the Torah decrees that a Safek Tum'ah in Reshus ha'Yachid is Tamei, its Tum'ah is not necessarily related to the type of Tum'ah that caused the Safek. Its Tum'ah, rather, is a Gezeiras ha'Kasuv of Tum'ah due to "Safek Tum'ah." For example, when a Nazir becomes Tamei to a Safek Tum'as Mes in Reshus ha'Yachid, he will not need to be Megale'ach. Although the Halachah is that he is definitely Tamei, his Tum'ah is not Tum'as Mes but rather the Tum'ah of a Gezeiras ha'Kasuv, and a Nazir is Megale'ach only for Tum'as Mes. Since his Tum'as Mes is a Safek, he cannot be Megale'ach.

Accordingly, the same applies to Safek Tum'as Nidah. Although a Sfek Sfeika of Tum'as Nidah is definitely Tamei in Reshus ha'Yachid, her Tum'ah is not that of a Nidah, but that of a Gezeiras ha'Kasuv. The only Tum'ah that can prohibit a woman to her husband is the Tum'ah of a Nidah. Therefore, with regard to the Isur to her husband she will be Tahor and permitted to him if there is a Sfek Sfeika regarding her Tum'as Nidah.

According to this explanation, even if a woman is Tahor from Tum'as Nidah because the Safek regarding her Tum'ah arose in Reshus ha'Rabim, she will be Tahor to her husband as well since a woman can be Asur to her husband only if she has the Tum'ah of a Nidah.

(b) TOSFOS RABEINU PERETZ suggests that the rule of Safek Tum'ah in Reshus ha'Yachid or in Reshus ha'Rabim does not apply to a Safek that arises regarding the woman's status as a Nidah. The rule applies only to questions regarding whether a person came in contact with Tum'ah and might therefore be Tamei. It does not apply to questions whether or not the Dam Nidah came out of the woman's body, since the Dam does not make the woman Tamei through contact with it but rather through the fact that it emerged from her body.

This principle is based on the teaching of Tosfos in Nidah (2a, DH m'Es l'Es, and 17b, DH v'Ein).

(c) The words of RASHI (DH d'Ein) imply a new approach. Rashi does not call the questionable birth a Sfek Sfeika. Rather, he calls it "two Chumros." Rashi might mean that if part of a Shilya does not necessarily contain part of the child, then it is so far-fetched to say that most of the child was in the small part of Shilya that emerged from the womb that it does not warrant being considered a Safek altogether. In lieu of legitimate cause for concern that the woman is Tamei, the woman would be Tahor even in Reshus ha'Yachid. (See Insights to Kesuvos 9a.)

According to this approach, Rashi may understand that the Gemara requires a Rov of the child to be born in order for there to be Tum'as Leidah. As Tosfos Rabeinu Peretz points out, other Sugyos imply that it suffices for the head to emerge in order for there to be Tum'ah (and a Rov of the baby is not necessary). Rashi, however, cannot explain that the birth of the head creates Tum'ah, because if that would be so, the case would involve a legitimate Sfek Sfeika: first, whether any part of the child was in the Shilya, and second, even if some part was in the Shilya, perhaps that part was not the head. If it is a Sfek Sfeika, she should be deemed Tamei in Reshus ha'Yachid, as Tosfos asks.

Rashi therefore explains that the case involves a single Safek: was or was not most of the child in the part of the Shilya that emerged?

REBBI AKIVA EIGER asks that according to Rashi, who maintains that most of the child must be born in order to make the mother Tamei, there is only a single Safek regarding the Tum'ah and not a Sfek Sfeika. Why, then, should the Halachah be more lenient even if it is possible for part of a Shilya not to have any part of the child in it?

Rashi answers by saying that the reason for leniency in such a case is not because of a Sfek Sfeika but because the possibility that most of the child was in the part that emerged would be too removed to consider it a Safek. (M. KORNFELD)