Clarification: This means that 'He ought to receive it' - if he seizes it, but that 'He does not' - if he does not.

Clarification (cont.): And this speaks specifically where he has has a claim on both oxen, on the large one and on the small one - only then may he claim it if he seizes it.

Clarification (cont.): But the Mishnah above speaks where he only has a claim on the large one, in which case, even if he seizes the small one, he is not permitted to claim it.

Implied Question: The Gemara could not have answered earlier 'Ra'uy Litol ve'Ein lo'?

Answer: Since if he would have seized it, he would not have been permitted to claim from it.

Clarification (cont.): And in the case of 'Ta'ano Chitim ... ' too, it would seem that even if he seized barley, he would not be permitted to claim it.

Question: Why does the Gemara not answer here like it answered above - namely 'That the Nizak said "Shema" and the Mazik "Bari" '?

Answer: Because if that were so, the Gemara could have asked that the two cases are one and the same.

Conclusion: It now transpires that each case in the Mishnah is necessary:

Case #1 & #2: The Reisha teaches us that the Rabbanan argue with Sumchus and say 'ha'Motzi me'Chavero, alav ha'Re'ayah' even in a case where the Maik says 'Shema' and the Nizak, 'Bari'; whereas the case of 'Katan and Gadol' teaches us that even where the Nizak says 'Shema' and the Mazik, 'Bari', Sumchus argues ... .

Case #3: 'Echad Tam ve'Echad Mua'ad' teaches us that even according to Rebbi Acha, who holds at the beginning of Perek ha'Mocher Peiros (Bava Basra, Daf 93a) in the case of 'Gamal ha'Ocher (that is flirting) bein ha'Gemalim' that it is the one that killed, will concede here that we do not ascribe the goring to the Mu'ad, since both animals were running.

Case #3: The case of 'Two Nezikin' teaches us that if he seizes one, he takes according to what the Mazik says.

Case #4: And the Tana inserts that of 'Tam and Mu'ad' because, since the previous case speaks about a large and small one and a Tam and a Mu'ad, he adds this case too.

Reason: Since it says 'Sh'neihem, if he wants ... .

Explanation #1: Consequently, if one of them is lost, the other one takes its place and he can claim from it'. This is how Rashi explains the Gemara.

Question: In that case, the Gemara should not have said 'Sh'ma Minah', but should rather have asked from the Seifa, which states 'If one of them is large and one of them small, "ha'Motzi me'Chavero, alav ha'Re'ayah", and he can (only) take the large one from the body of the small one' ...

Question: In which case, in the event that one of them gets lost, he cannot claim from the remaining one?

Explanation #2: It would therefore seem that it is speaking where two oxen both damaged the one ox, and it is as if they are one body - and that is why he can claim from both of them.

Implied Question: And even though the Mishnah is speaking where we are in doubt as to which of them gored ...

Answer: The Gemara nevertheless extrapolates from the Lashon 'Sh'neihem Chayavim', that it is possible for both of them to be Chayav - such as where we know for sure that both of them damaged together.

Explanation #1: Rashi explains that according to Rebbi Yishmael, who says that the Mazik is a creditor and that he owes the Nizak money, even if he loses one of them, he ha not lost his right to claim.

Question: But the Gemara said earlier (on Daf 33a) that, 'Even according to Rebbi Yihmael, if the Mazik Shechted it, what he did is done'.

Explanation #2: One must therefore explain that the Gemara establishes th Mishnah like Rebbi Akiva, because accoding to Rebbi Yishmael there would be no Chidush, since it is obvious that, if on of them is lost, he has lost his right to claim, seeing as he is a creditor.

Explanation #2 (cont.): Whereas according to Rebbi Akiva, who holds that they are partners, we might have thought that one of the two oxen is in the Chazakah of the Nizak, and the Nizak can therefore say to the Mazik 'It is your ox that is lost and not mine!' (See Mesores ha'Shas).

Q?estion: According to Rebbi Akiva too, the first one ought to benefit - Why is the onus on him to to guard his portion as long as he has not been to Beis-Din and witnesses have not come. So how does he know that he will get it?

Answer: We are therefore forced to say that the fact that he is able to bring witnesses immediately and to take it, obligates him to look guard it.

Refuted Answer: Nor can one answer that it speaks when he does not have it ...

Refutation: Because in that case, there would be a Kashya on Rebbi Akiva - that the Tana ought to have said that the first one benefits.

Clarification: It is specifically according to Rebbi Yishmael that the Mazik becomes a Shomer Sachar, because according to Rebbi Akiva, who holds that 'They are partners', and that the ox becomes weaker or stronger in the domain of the Nizak, he only becomes a Shomer Sachar on his portion, since the onus lies with each one to look after his portion (See Maharam).

Inference: It now makes sense, since, both according to Rebbi Meir and Rebbi Shimon, it speaks where the Nizak seized the ox ...

Conclusion: And not like Rashi's explanation.

Clarification: It now transpires that 'Acharon Acharon Niskar' in the Mishnah refers to the very last one, which is the fifth one.

Elaboration: But sometimes the fourth one receives nothing, and the third one does - there where the damage done to the fourth and fifth oxen is the same, but the damage done to the third ox exceeds it.

Elaboration: And there are times where also the fifth one does not receive the total damage - where the damage done to his ox exceeds that done to the fourth ox, in which case he only takes the portion of the fourth one.

Conclusion: However, when all the damages are equal, then they all lose, and only the last one gains.

Clarification: It is speaking about a Sela Medinah, as is evident the Gemara shortly, whereas the Manah of Rebbi Yossi ha'Gelili, as is evident in 'ha'Chovel' (later on Daf 90b).

Question: It is surprising however, that the difference between them should be so great, as a Sela Medinah is one two hundredth of a Manah Tzuri?

Answer: Rabeinu Tam therefore explains that tey do not argue, only one of them (the Tana Kama) speaks about a poor man, the other (Rebbi Yossi ha'Gelili), about a rich man.

Reservations: But since the Gemara says in 'ha'Chovel' (Ibid.) 'Here am I, and here is Rebbi Yossi ha'Gelili', gives the impression that they do argue.

Conclusion: Nevertheless, even though they do argue, we can say that one of them is speaking about a rich man and the other, about a poor man, like Rabeinu Tam ...

Conclusion (cont.): Because it is not possible that, if the shame of a poor man is a Sela, the shame of a rich man should not be less or more than a Manah (See Maharam).

Clarification: The Ri explains that Rav Yehudah is referring specifically to Sela'im that are similar ro the Kesef of which the Torah speaks, which the the Gemara explains in the first Perek of Kidushin (Daf 11a) is fixed amounts of silver ...

Source: And it is only with regard to Sela'im that we find fixed amounts of silver, as the Gemara explains there 'the Five Sela'im of Pidyon ha'Ben, the twenty, of rape, thd hundred of Motzi Shem Ra and the thirty of Eved'.

Source (cont.): And the 'shel Divreihem' is similar to them.

Clarification (cont.): But other coins, even if they are de'Rabanan, are Kesef Tzuri (See Hagahos ha'G'ra) ...

Proof #1: Since we see that the Manah of Rebbi Yossi ha'Gelili is a Manah Tzuri, as is evident (later on Daf 90b).

Proof #2: And Kesubah too, is two hundred Zuz Tzuri - according to the opinion that considers Kesubas Ishah de'Rabbanan, no less than the opinion that considers it d'Oraysa, since we learn it from "ke'Mohar ha'Besulos" ...

Source: Since Raban Shimon ben Gamliel and the Rabanan only argue in the last Perek of Kesuvos (Daf 110b) over whether he has to give her the coins of Eretz Yisrael or of Keputki, but both agree that he must give her the value of two hundred Zuz of Ma'os Tzuri.

Proof #3: And even the Kesubah of an Almanah, which is only de'Rabanan, is Manah Tzuri according to all opinions ...

Source: Because in Kesuvos (Daf 12a) it is implied slightly that the Kesubah of a Besulah is double that of an Almanah - in the Sugya of 'Echad Almanas Kohen ve'Echad Almanas Yisrael'.

Question: Even without 'Yad Aniyim', he ought to be Chayav Tzedakah with his words, as the Gemara Darshens in the first Perek of Rosh ha'Shanah (Daf 6a) "be'Ficha", 'Zu Tzedakah'.

Answer #1: Just as a person cannot be Makdish something that is not yet in the world, so too, can he not give as Tzedakah something that is not yet in the world, and when he says 'Give it to the poor!', it is as if it is not yet in the world.

Answer #1 (cont.): In the same way, if he were to say 'Give it to Hekdesh', Hekdesh would not acquire it either.

Answer #1 (cont.): Granted, if he were to say 'When I retrieve this debt I will give it to Hekdesh' or 'to Tzedakah' he would presumably be obligated to give it because it is a Neder ...

Answer #1 (cont.): But what he said is 'Give it to the poor', and not make a Neder.

Answer #2: Rabeinu Chananel however, explains that the person in our case did not want to retract from the Tzedakah, only to borrow it temporarily and to give other money to the poor instead, only Rav Yosef informed him 'Yad Aniyim anan', and they had acquired it in the presence of the three concerned parties ...

Source: And the Gemara says in the first Perek of Erchin (Daf 6a) that "If someone says 'Sela zu li'Tzeakah' then he can swap it as long as it has not yet reached the hand of the Gabai Tzedakah, but not once it has (See Mesores ha'Shas).