Bava Kamma - Daf 78
- שה להוציא כלאים: for פטר חמור, or טמא שנולד מן הטהור ועיבורו מן הטמא
Rava taught: כל מקום שנאמר שה אינו אלא להוציא את הכלאים – anywhere that “seh” is stated, it is only to exclude a crossbreed. Having established that a crossbreed is not excluded from ד' וה', the Gemara asks where the exclusion was applied. It answers: לענין פטר חמור – regarding redemption of a firstborn donkey, which a Mishnah teaches cannot be redeemed with a crossbreed (from a sheep and a goat). According to Rebbe Elazar, who holds it can be redeemed with a crossbreed, Rava’s exclusion was used for טמא שנולד מן הטהור ועיבורו מן הטמא – a nonkosher animal born from a kosher animal impregnated from a nonkosher animal. It may not be eaten, because it is not included in the “seh” permitted by the Torah for consumption. The Gemara notes that Rebbe Yehoshua derives this law from elsewhere. Since a kosher animal cannot conceive from a nonkosher animal, the Gemara explains that the “nonkosher” father was a קלוט – uncloven-hoofed animal, which is not kosher according to Rebbe Shimon.
- Paying for a stolen olah with a lamb or bird where the owner designated a שור
Rava asked: if one said, "הרי עלי עולה" – it is hereby incumbent upon me to bring an olah, and he designated a bull for his obligation, and someone stole it, can the thief fulfill his liability by giving the victim the most inexpensive animal for an olah? A Mishnah taught that where one said "הרי עלי עולה", the Rabbonon say he may bring a lamb, and Rebbe Elazar ben Azaryah says he may bring a bird. Hence, can the thief give the victim a lamb according to the Rabbonon, or a bird according to Rebbe Elazar ben Azaryah? Do we say that the owner only accepted to bring “an olah,” in which case the thief has replaced his loss by providing him with an animal usable as an olah, or can the owner say: אנא מצוה מן המובחר בעינא למיעבד – I wanted to perform a mitzvah in the choicest way (by designating a bull), and the minimal options are not legitimate replacements? Later, Rava concluded that the thief can fulfill his obligation by giving the owner a lamb (or a bird, according to Rebbe Elazar ben Azaryah).
- ד' וה' where the thief retained part of the animal in the sale
The next Mishnah states: מכרו חוץ מאחד ממאה שבו – If [the thief] sold all but one-hundredth of [the animal], he does not pay ד' וה'. Rav explains this means: חוץ מדבר הניתר עמו בשחיטה – except for something which becomes permitted through shechitah (i.e., its meat, as opposed to its hide, horn, or wool, which would not constitute an exclusion in the sale). Levi says: חוץ מגיזותיה – even if all is sold except for its shearings, it is considered an incomplete sale, and he does not pay ד' וה’. Rav was challenged from a Baraisa quoting three opinions on this matter: (1) An exception of a leg, horn, or shearings constitutes an exclusion. (2) Rebbe says the exclusion must be דבר המעכב בשחיטה – something essential for shechitah (a part without which the animal could not be permitted through shechitah). (3) Rebbe Shimon ben Elazar says the horn would be an exclusion, but not the shearings. Levi holds like the Tanna Kamma, but no Tanna accords with Rav!? The Gemara answers that Rav holds like a different Baraisa, which quotes Rebbe Shimon ben Elazar as holding like Rav. The Gemara explains the reasons for the various opinions.
