# dafyomi

lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - Ravina) Question:</font></b> Why does the Mishnah switch 
          from 'Regel' to 'Behemah'?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Regel is the Av. Other parts of the 
          animal are the Toldos.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> The Seifa of our Mishnah (19b) 
          switches from 'Shen' to 'Behemah'. What Toldos of Shen 
          does it refer to?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> It refers to Shen of Chayos (wild 
          animals) and Behemos.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that 'he will send Be'iro' 
               refers only to a Behemah. The Tana teaches that this 
               is not so. 'Be'iro' includes Chayos.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah should teach Behemah before 
          (Shen, which alludes to) Chayos!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The Torah did not explicitly teach Chayos. The 
          Tana needed to expound it (we find that  Devarim 14:4 
          says 'Behemah', and includes Chayos). Therefore it is 
          dear to him, so he taught it first.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If so, also regarding Regel, the Tana should 
          first teach other parts of the animal, which the Torah 
          did not explicitly teach!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Regarding Shen, both are Avos, so he lists 
          first the one that is not explicit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding Regel, it is improper to list the 
               Toldah (its body) before the Av (the Regel)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Since the previous Mishnah (15b) concluded 
          with Regel, our Mishnah begins with Regel.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PEBBLES (TZEROROS)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> An animal is Mu'ad to walk normally and 
          break things;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	If it entered the victim's premises, it pays full 
          damage for damage any of the following:</font></b> its body or hair 
          as it walked; its saddle, bag, bridle in its mouth, or 
          bell on its neck; a donkey with its load;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Sumchus says, the following pay full damage:</font></b> pebbles, 
          or a pig that was digging with its snout in the waste-
          heap and damaged.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If a pig damaged, of course it pays full 
          damage!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, it strewed up refuse and damaged.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why does Sumchus mention pebbles? The first 
          Tana did not discuss this!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa is abbreviated. It means as 
          follows: for pebbles kicked up normally, it pays half-
          damage. If a pig was digging and strewed up refuse and 
          damaged, it pays half-damage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Sumchus says, these cases pay full damage.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If chickens fluttered from place to place 
          and broke Kelim with their wings - they pay full damage;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	If the wind from their wings broke the Kelim, they pay 
          half-damage; 
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Sumchus says, they pay full damage.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If chickens were dancing on a dough or 
          fruits and dirtied or pecked holes in them, they pay full 
          damage;
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	If they kicked up dirt or pebbles, they pay half-
          damage; 
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Sumchus says, they pay full damage.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a chicken was fluttering from place to 
          place, and wind from its wings broke Kelim, it pays half-
          damage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This anonymous Mishnah is like Chachamim.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHEN IS KO'ACH CONSIDERED TZEROROS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> We understand Sumchus. He holds that impetus 
          (the damager set something in motion, and it damaged) is 
          like bodily damage.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If Chachamim hold that it is like bodily 
          damage, they should obligate full damage. If it is unlike 
          bodily damage, it should be exempt!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> It is like bodily damage. A tradition 
          from Moshe from Sinai teaches that one pays only half for 
          damage caused by pebbles that the animal kicks 
          ('Tzeroros').
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> Any case in which a Zav is Metamei (i.e. 
          touching), a similar case of damage pays full damage. Any 
          case in which a Zav is not Metamei (e.g. an object hit by 
          something he threw), a similar case of damage pays half-
          damage.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Does Rava just teach the law of Tzeroros?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> No. He teaches about a calf pulling a wagon (it 
          pays full damage if the wagon damages, and half-damage if 
          it strews up pebbles and they damage).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> An animal is Mu'ad to break things 
          as it walks. If it entered the victim's premises, it pays 
          full damage for damage by its body... or a calf pulling a 
          wagon.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If chickens were pecking at the rope of a 
          bucket, and the rope snapped and the bucket broke, they 
          pay full damage.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If an animal stepped on a Kli, and it 
          rolled to another place and broke there, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does it depend on the beginning, and it is like 
               bodily damage (since it stepped on the Kli)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, does it depend on when it breaks, and it is 
               like Tzeroros (since the animal was not touching it 
               when it broke)?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> He should learn from Rabah's law!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rabah):</font></b> If Reuven threw a Kli off the roof, and 
                    Shimon broke in it mid-air with a stick, Shimon 
                    is exempt, for it was already (destined to be) 
                    broken. (This shows that it depends on the 
                    beginning!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rava was unsure whether or not Rabah's 
               law is true.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1 (Beraisa):</font></b> Dancing (of chickens) is not 
          Mu'ad;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Some say, it is Mu'ad.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection:</font></b> Surely, dancing is Mu'ad!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, if chickens danced and kicked a Kli 
          (and it broke elsewhere); the two Tana'im hold like the 
          two sides of Rava's doubt.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, the Beraisa discusses when it strewed up 
          pebbles, i.e. the argument of Sumchus and Chachamim.
<br>

sjt:
<p>
<font><b>2) 'BASAR ME'IKARA AZLINAN'</b></font><b>
<br>QUESTION:</b> Rava asks what the Halachah is when an animal steps on a utensil, causing it to roll somewhere else and to strike a different object and break. Is this considered Tzeroros, since the utensil that rolled broke only after it finished rolling, when it was no longer near the foot of the animal, or is this considered a normal case of Regel, since it was the kick that the animal gave it which caused it to break? The Gemara phrases the question in terms of whether 'Basar me'Ikara Azlinan' -- is the damage considered to have been done at the beginning, at the moment the animal kicked the utensil (and therefore it is not a case of Tzeroros), or 'Basar Tevar Mana Azlinan' -- is the damage considered to have been done at the point in time at which the utensil broke, at which time it was no longer near the animal's foot?
</p><p>
How can the Gemara suggest that 'Basar me'Ikara Azlinan' and the damage is considered to have been done at the moment the animal kicked the utensil? According to this logic, there will never be a case of Tzeroros! Every time an animal kicks a stone that eventually hits a utensil and breaks it, the principle of 'Basar me'Ikara Azlinan' should dictate that the moment the animal kicked the stone was the moment of the damage, and therefore it is not Tzeroros. When will there ever be a case of Tzeroros if 'Basar me'Ikara Azlinan'?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Zarak Kli) explains that there is a difference between an animal that kicks an object which then damages another item, and an animal that kicks something which itself becomes damaged after rolling. 'Basar me'Ikara Azlinan' applies only when the object which will be damaged itself has already been set into motion, and something has already been done to it (the animal has kicked it). Since it is already moving, the object itself is already considered to be broken. In contrast, the fact that an animal kicks one object cannot make a second object -- which is still motionless and nothing has been done to it at all -- be considered broken at the moment that the animal kicks a pebble towards it. Since nothing at all has begun to happen to that object yet, it cannot be considered broken until it actually breaks. (All of the Rishonim here distinguish between the two cases in a similar manner.)
</p><p>
Therefore, in a normal case of Tzeroros, 'Basar me'Ikara Azlinan' does not apply: the damage is <i>not</i> considered to have been done by the animal itself, but rather by the Ko'ach of the animal, something the animal kicked or pushed which damaged a second object. In the case of Rava's question, the animal kicked a utensil which itself became damaged, and thus 'Basar me'Ikara Azlinan' applies. In that case, it is the animal itself, and not the Ko'ach of the animal, that caused the damage.
</p><p>
(b) The <b>KETZOS HA'CHOSHEN</b> (CM 390:1) disagrees with Tosfos. He suggests that even if the principle of 'Basar me'Ikara Azlinan' applies to something which does not break itself but which causes something else to break, there is still a distinction between an animal that kicks a utensil which breaks and an animal that kicks a rock which then breaks a utensil. He explains that even if 'Basar me'Ikara Azlinan' applies, and thus when an animal kicks a rock it is as if the utensil that the rock will hit is already broken, nevertheless the utensil has been broken by the rock that hit it and not by the animal's foot itself. Accordingly, it is only the Ko'ach of the animal that does the damage, and the Halachah l'Moshe mi'Sinai teaches that something that breaks because of the Ko'ach of the animal -- because of something that the animal sets in motion -- obligates the owner of the animal to pay only Chatzi Nezek because of Tzeroros. However, when the animal kicked the utensil itself, it is the foot of the animal that broke the object and not the animal's Ko'ach, and thus 'Basar me'Ikara Azlinan' states that the moment at which the foot hit the object it broke it.
</p><p>
The <b>KEHILOS YAKOV</b> (Bava Kama 4:6) explains this further by saying that the Ketzos ha'Choshen is differentiating between when the animal itself touched the object that broke, in which case it is considered damaged caused by 'Gufo,' the body of the animal itself, and when the animal never touched the object that broke, but rather something else which the animal kicked touched the object, in which case it is considered 'Kocho' or Tzeroros, and not 'Gufo.'
</p><p>
The difference between the approach of Tosfos and the approach of the Ketzos ha'Choshen is a case in which a person throws an object, or shoots an arrow, at a utensil, and another person breaks the utensil before the arrow hits it. According to Tosfos, in such a case the person who actually broke the utensil is liable; 'Basar me'Ikara Azlinan' does not apply since nothing was done to the utensil itself until the arrow hit it. 'Basar me'Ikara Azlinan' applies only when the object itself was set into motion already, and that same object is the one that will break. In this case, at the time the arrow was shot, nothing happened to the utensil which eventually broke. Therefore, Tosfos would rule that the person who breaks the utensil before the arrow hits it is liable.
</p><p>
The Ketzos ha'Choshen suggests that according to his understanding, in such a case perhaps the second person will not be liable. Rather, the person who shot the arrow will be liable, similar to the law in the case cited by the Gemara in which a person throws a utensil down from a high place and another person breaks it before it hits the ground. Just as the second person is not liable in that case because of 'Basar me'Ikara Azlinan' and it is considered as though he broke a utensil that was already broken, so, too, when one shoots an arrow at a utensil and another person breaks the utensil before the arrow hits it, 'Basar me'Ikara Azlinan' dictates that the second person broke a broken utensil. It makes no difference whether the utensil would have been broken by the 'Guf' of the person or by the 'Ko'ach' of the person. In either case, someone else broke it since, according to the laws of Adam ha'Mazik, there is no difference between 'Kocho' and 'Gufo' -- a person is equally liable for damage caused by his 'Ko'ach' and his 'Guf.' Only in the case of damage caused by an animal is there a difference between 'Kocho' and 'Gufo' because of the Halachah l'Moshe mi'Sinai of Tzeroros. 
</p><p>
(The Ketzos ha'Choshen suggests that some Rishonim may agree with his way of understanding. He cites the Rosh (1:1) and Nimukei Yosef (21a). However, other Acharonim reject his proofs.)
</p><p>
<b>HAGA'ON RAV YISRAEL ZEV GUSTMAN</b> zt'l (in <b>KUNTRESEI SHI'URIM</b> 10:17) finds a Rishon who apparently supports the assertion of the Ketzos ha'Choshen. The <b>RASHBA</b> here mentions that the <b>RIF</b> rules that 'Basar me'Ikara Azlinan,' and therefore if someone throws a utensil from the roof and someone else shatters it before it hits the ground, the second person is exempt. Nevertheless, the Rif quotes part of the conclusion of the Gemara (18a) which apparently is necessary only if there is no rule of 'Basar me'Ikara Azlinan'! The Gemara there proves that 'Basar me'Ikara Azlinan' from the Beraisa cited here (17b) which teaches that if hens were pecking at the rope of a bucket and the rope broke and the bucket fell and broke, the owner of the hens must pay Nezek Shalem. The Gemara says that this ruling proves that 'Basar me'Ikara Azlinan,' because otherwise the owner should have to pay only Chatzi Nezek for the bucket, since the bucket broke by falling and breaking. Rav Bibi bar Abaye answers that the bucket did not fall and break, but rather the hen pushed the rope and the bucket until the bucket broke; since the hen pushed the bucket itself, the owner must pay Nezek Shalem.
</p><p>
The Rif cites Rav Bibi bar Abaye's answer, that the reason why the owner of the hen must pay Nezek Shalem is that the hen pushed the bucket itself, and <i>not</i> because of 'Basar me'Ikara Azlinan.' If the Rif rules that 'Basar me'Ikara Azlinan,' why does he quote the reason of Rav Bibi bar Abaye?
</p><p>
The <b>RASHBA</b> answers that the Rif may rule that even if 'Basar me'Ikara Azlinan' applies, that only makes it as though all of the damage happened at the time the bucket first started to fall. Nevertheless, since the hens did not touch the bucket itself but only the rope, it is called Tzeroros. That is why the Rif needs to rule that the hen actually pushed the bucket itself and broke it, and he does not write that the hen pushed the rope and thereby caused the bucket to break.
</p><p>
The Rashba's explanation is a strong support for the logic of the Ketzos ha'Choshen, that even if 'Basar me'Ikara Azlinan,' the case is still considered a case of Tzeroros ('Kocho') as long as the animal did not touch the object that broke, but touched something else which then caused the object to break.
</p><p>
(The Rashba also agrees with the difference of Tosfos, however, that when the object which broke was not set into motion, the principle of 'Basar me'Ikara Azlinan' does not apply. He merely adds that even when that object was set into motion, 'Basar me'Ikara Azlinan' still does not remove the damage from the category of Tzeroros unless the animal actually touched the object.)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ATTEMPTS TO ANSWER RAVA'S QUESTION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> If chickens were pecking at the 
          rope of a bucket, and the rope snapped and the bucket 
          broke, they pay full damage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This proves that it depends on the beginning!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> No, the Beraisa teaches that they pay 
          full damage for the rope.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> It is abnormal to peck at a rope!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> There was dough on the rope.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> If he pays for the rope, why did the Beraisa 
          mention the bucket?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> The Beraisa is like Sumchus, who says 
          that Tzeroros pay full damage.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Seifa):</font></b> If a fragment flew off (the bucket) 
          and broke a Kli, he pays full damage for the first Kli, 
          and half-damage for the second;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Sumchus, he should pay full damage 
               for both Kelim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps Sumchus distinguishes between 
               impetus and impetus of impetus (the damager set 
               something in motion, it set something else in motion 
               that later damaged).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> Rav Ashi never resolved this!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Rav Ashi):</font></b> Does Sumchus consider 
                    impetus of impetus like impetus, or not?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If the Beraisa is like Sumchus, this shows 
                    that he does not consider it as impetus!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Conclusion:</font></b> The Beraisa is like Chachamim. Impetus is 
          like bodily damage.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection (Rav Bivi bar Abaye):</font></b> No. The case is, the 
          chicken was pushing the bucket the entire time, until it 
          broke.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DO TZEROROS PAY MIN HA'ALIYAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Is half-damage of Tzeroros paid from 
          ha'Aliyah (even above the value of the damager)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We never find half-damage that pays from 
               ha'Aliyah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> On the other hand, we never find normal damage 
               that pays mi'Gufo (only up to the value of the 
               damager)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Beraisa):</font></b> Dancing (of chickens) is not 
          Mu'ad; 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>Some say, it is Mu'ad.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection:</font></b> Surely, dancing is Mu'ad!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, the chickens danced and 
               strewed up pebbles, which broke a Kli.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Tana who says that it is not 
               Mu'ad holds that it pays from ha'Aliyah. The other 
               Tana says that it does not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, they argue like Sumchus and Chachamim 
          (like above).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Mishnah):</font></b> If a dog took a cake (with a coal 
          inside) to a pile of grain, and it ate the cake and 
          burned the grain, it pays full damage for the cake and 
          half-damage for the grain.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This is because burning the grain is 
               like Tzeroros.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Half-damage is paid (for the grain) up 
               to the value of the dog.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This settles Rava's question!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> This cannot be! R. Elazar holds that full 
          damage is paid even for the grain. We never find full 
          damage mi'Gufo! (Rava asks only according to Chachamim. 
          Surely, Sumchus, who obligates full damage for Tzeroros, 
          holds that it pays from the Aliyah, like a Mu'ad.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we must say that the dog acted abnormally 
               with the coal. R. Elazar holds like R. Tarfon, who 
               says that Keren in the victim's premises pays full 
               damage.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Defense #1 (of Answer #2):</font></b> We need not say that R. 
          Elazar holds like R. Tarfon, or that the damage was 
          abnormal;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We can say that he holds like Sumchus, and like 
               R. Yehudah (who says that half the obligation of a 
               Mu'ad is like a Tam. The Tam part only pays mi'Gufo. 
               Rava's question is settled, like above.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection (Rav Sama brei d'Rav Ashi):</font></b> R. Yehudah said 
          so in cases where the animal was initially Tam. We have 
          no source to say this about something (Tzeroros, 
          according to Sumchus) that is Mu'ad from the beginning!
<br>
<br>

sjt:
<font><b>1) THE FIREBRAND THAT BURNS A FIELD</b></font><b>
<br>QUESTION:</b> The Gemara concludes, according to Rava, that Rebbi Elazar and the Chachamim -- who argue about whether the owner of a dog that ignites someone else's property with a 'Chararah' pays Chatzi Nezek or Nezek Shalem -- both follow the view of Sumchus who says that one pays Nezek Shalem in a case of Tzeroros. They argue only in a case in which the dog does an unusual act in the way that it ignites the property with the Chararah. Since there is a Shinuy, the act is a Toldah of Keren. The Chachamim rule that the owner pays Chatzi Nezek, as he does in any case of Keren. Rebbi Elazar rules that he pays Nezek Shalem because the dog damaged the property in the Chatzer of the Nizak, and Rebbi Elazar follows the ruling of Rebbi Tarfon that for damage of Keren in Reshus ha'Nizak one must pay Nezek Shalem mi'Gufo.
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<b>RASHI</b> (DH Amar Lach) explains that when the Gemara says 'd'Shani b'Tzeroros,' that the dog did an unusual act, it means that the dog threw the firebrand with its paw onto the pile of straw (or other flammable material). The reason why Rashi explains that the dog <i>threw</i> the firebrand onto the pile is in order to make it a case of Tzeroros so that it should not be a case where the dog caused the damage directly, which would be a normal case of Keren. Rashi explains that it is a case of Tzeroros because the Gemara relates the case to the argument of Sumchus and the Rabanan, and says that the Tana'im of the Beraisa follow Sumchus. If it would not be a case of Tzeroros, they would not have to follow Sumchus, because one would pay Nezek Shalem for the damage done in the Chatzer ha'Nizak even without Sumchus' logic, because of the Halachah of Keren.
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Why does the Gemara need to make this a case of Tzeroros altogether? If the discussion involves a dispute between Rebbi Tarfon and the Rabanan about whether Keren in Chatzer ha'Nizak pays Nezek Shalem or Chatzi Nezek, the Gemara should say simply that the case of the dog that damages a pile is where the dog simply placed the firebrand on the pile directly, with its mouth with a Shinuy (in an unusual manner), and the argument is whether normal Keren (which is not Tzeroros) pays Chatzi Nezek or Nezek Shalem when the damage is done in the Chatzer of the Nizak. Why does the Gemara need to say that the case involves Tzeroros at all? (<b>TOSFOS</b> 18b, DH Bein)
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In fact, Rashi himself (DH d'Dachik Lah Alma) explains that this is a way of explaining the Machlokes between Rebbi Elazar and the Chachamim in the Beraisa. They argue in a case where the animal puts the firebrand directly on the pile and burns it, such that no Tzeroros is involved! The question is whether the owner pays Nezek Shalem or Chatzi Nezek for the area that the firebrand burned ('Makom ha'Gacheles').
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Also, when the Gemara first suggests that the Machlokes between Rebbi Elazar and the Chachamim is the same as the Machlokes between Rebbi Tarfon and the Rabanan, and the case is where the dog did an unusual act, Rashi (18a, DH Ela Kegon d'Shani) explains that the Shinuy was that the dog took the firebrand in its mouth and placed it on the pile! The Rishonim explain that when the Gemara there says 'd'Shani b'Gacheles,' it is the exact same answer that the Gemara here -- at the end of the Sugya, according to Rava -- gives when it says 'd'Shani b'Gacheles' (see Tosfos DH Bein, and see Chart, footnote #5). Why does Rashi there explain that the dog placed it on the pile instead of explaining that the dog threw it, as he explains here?
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From the words of Rashi there it seems that the question does not involve Tzeroros, but rather an ordinary case of Keren, as he explains later (on 18b), and the Gemara is asking how much must the owner pay for the damage at the 'Makom ha'Gacheles,' the damage done to the place that the firebrand touched first.
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Moreover, in the same comment there (18a, DH Ela Kegon), Rashi continues and says that the Machlokes between Rebbi Elazar and the Chachamim <i>is</i> about Tzeroros with a Shinuy! Rashi says that there <i>is</i> Tzeroros involved, even though the Gemara explains that the Machlokes is the same as the Machlokes between Rebbi Tarfon and the Rabanan. Why does Rashi say, in the beginning of his comments, that the dog <i>placed</i> the firebrand on the pile, and then, in the end of his comments, that the case refers to <i>Tzeroros</i>, seemingly a case where the dog <i>throws</i> the firebrand onto the pile (as Rashi explains on 18b)? (See <b>SHITAH MEKUBETZES</b> in the name of <b>GILYON</b>, <b>PNEI YEHOSHUA</b>, <b>MAHARSHA</b> in Mahadura Basra, <b>MAHARAM SHIF</b>.)
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<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that the Gemara (18b) explains that the Chachamim who argue with Rebbi Elazar follow Sumchus and that the question concerns Tzeroros of Keren and not just Keren, because the Chachamim in the Beraisa state simply that one pays Chatzi Nezek and they do not specify that one pays Chatzi Nezek only for the 'Makom ha'Gacheles,' the place that the firebrand touched and burned first. This implies that one pays Chatzi Nezek for the <i>entire</i> property that was burned.
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However, the damage done to the rest of the field, besides the 'Makom ha'Gacheles,' is only damage of Tzeroros. Even if the dog placed the firebrand down onto field, when the fire spreads it should be considered Tzeroros, according to Rebbi Yochanan later (22a). Rebbi Yochanan and Reish Lakish there argue whether damage caused by one's flame is considered like 'Chitzav,' his 'arrow' (Kocho), or whether it is considered his property (Mamono), like a person's animal. According to Reish Lakish, any damage caused by the firebrand is like damage caused by normal Keren, like an animal that damages, and the owner is liable to pay like in a case of normal Keren, and not like in a case of Tzeroros. According to Rebbi Yochanan, however, the Gemara there explains that when a person shoots an arrow, he is liable for the damage done, but when an animal 'shoots' an arrow, the owner is liable because of Tzeroros. Therefore, if the dog places the firebrand on the pile and it burns the rest of the field, when the rest of the field burns it is through 'Kocho,' or Tzeroros, of the dog, and one would not be liable to pay Nezek Shalem according to the Rabanan who argue with Sumchus and maintain that for Tzeroros one pays Chatzi Nezek.
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This is why the Gemara finds it necessary to explain that the case is one of Tzeroros of Keren, and not a case of ordinary Keren -- because of the implication of the Beraisa that there is Tzeroros involved, since the Beraisa seems to be discussing the rest of the field as well, which is certainly Tzeroros according to Rebbi Yochanan. 
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Perhaps Rashi agrees with this understanding, and thus he writes later that the Gemara chose not to explain that Rebbi Elazar and the Chachamim argue about ordinary Keren and not Tzeroros of Keren (and they are discussing the 'Makom ha'Gacheles' alone), because the Gemara would then have limited the application of the Halachah of the Beraisa (and the Gemara prefers not to limit it). Rashi later indeed explains the Beraisa in such a manner only because he is forced to do so -- in order to show that Rebbi Elazar might not agree with Sumchus, and that Rebbi Elazar in the Beraisa is not discussing a case of Tzeroros at all. 
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Why, though, does Rashi (18a) mention that the dog took the firebrand in its mouth and placed it on the pile, and he does not mention that the dog threw it, even though he is discussing the same case (of 'Kegon d'Shani b'Gacheles')? The <b>GILYON</b> cited by the Shitah Mekubetzes explains that Rashi there indeed is explaining that the Machlokes involves only the 'Makom ha'Gacheles.' Why, though, does Rashi there explain it in that manner? Perhaps he means to say what <b>TOSFOS RABEINU PERETZ</b> (in the Shitah Mekubetzes) says later -- that the Gemara at the end of the Sugya states clearly what this case (of 'd'Shani b'Gacheles') refers to, and it says that the Machlokes between Rebbi Elazar and the Chachamim, according to Rava, is where the dog did an unusual act in the way that it did damage with the firebrand, and the Gemara states that both of the Tana'im in the Beraisa follow the view of Sumchus.
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Why does the Gemara not state this earlier (18a), when it first mentions this case (of 'd'Shani b'Gacheles')? (In fact, Rashi on 18a, DH Ela Kegon, <i>does</i> state this there as well.) Tosfos Rabeinu Peretz explains that there, the Gemara is satisfied with explaining that the Machlokes involves the 'Makom ha'Gacheles' alone, and does not involve the rest of the pile and field. Therefore, the Gemara there does not need to say that it is a case of Tzeroros and explain that Rebbi Elazar and the Chachamim follow Sumchus. Only later, when the Gemara works with the conclusion of the Sugya and not merely with a tentative answer, does the Gemara find it necessary to give a more encompassing answer and to explain that Rebbi Elazar and the Chachamim argue not only with regard to the 'Makom ha'Gacheles' but also with regard to the entire field. This is why the Gemara at that point says that both Rebbi Elazar and the Chachamim follow Sumchus, and they are discussing a case of Tzeroros of Keren.
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This may be the intention of Rashi (on 18a) when he explains that the Gemara is discussing ordinary Keren, while here (18b) he explains that the Gemara is discussing Tzeroros of Keren.
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However, this answer does not suffice to explain the words of Rashi. First, Rashi (18b) explains that what makes it Tzeroros of Keren is that the dog <i>threw</i> the firebrand onto the pile. Why does he not explain that the damage of the Tzeroros is, as explained above, the damage done to the rest of the field because of 'Esho Mishum Chitzav'?
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Second, as mentioned above in the question, Rashi (18a) contradicts himself. He first mentions that the dog placed the firebrand on the pile, but later he adds that the damage was done in the manner of Tzeroros of Keren, and that Rebbi Elazar and the Chachamim follow Sumchus, even though he is still explaining the answer of the Gemara at the beginning of the Sugya! Obviously, Rashi does not agree with the explanation of Tosfos Rabeinu Peretz.
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(b) The <b>MISHNAS KEHUNAH</b> (cited in footnote 174 in the new printing of the Shitah Mekubetzes) asks how can the Gemara explain (on 18b) that the Tzeroros is the spreading of the fire to the rest of the pile and field, like Rebbi Yochanan's opinion? The Gemara there is discussing <i>Rava</i>, and <b>TOSFOS</b> in Sanhedrin (77a, DH Sof) writes that Rava rules like <i>Reish Lakish</i> who says 'Isho Mishum <i>Mamono</i>' and not like Rebbi Yochanan. According to Rava, therefore, the burning of the rest of the field would <i>not</i> be a case of Tzeroros!
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Perhaps Rashi was bothered by this question, and that is why Rashi here (18b) explains that the case is one of Tzeroros in that the dog <i>threw</i> the firebrand onto the pile. However, Rashi earlier (18a) explains that the dog simply <i>placed</i> the firebrand on the pile, and the Tzeroros is that the fire spread to the rest of the field (because 'Esho Mishum Chitzav' is considered Tzeroros, like Rebbi Yochanan), because at that point the Gemara was not discussing Rava, and therefore there was nothing wrong with explaining the Gemara according to Rebbi Yochanan. (M. Kornfeld)
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<br>(c) Perhaps there is more to the words of Rashi earlier (18a). A careful reading of the words of Rashi shows that there are two separate comments combined into one. Rashi first explains the words of the Gemara, 'Ela Kegon d'Shani b'Gacheles,' and explains that the dog placed the Gacheles on the pile. Rashi then begins again with a new comment (with the words 'Ela Ba'ayan me'Hacha Lo Tifshot...,' with the word 'Ela' being the 'Dibur ha'Maschil') and he explains the Gemara with a different explanation. Perhaps there are two versions in the explanation of Rashi which correspond to the two versions in Rashi later (on 18b), as follows:
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Rashi (on 18b, DH Amar Lach Rava) asks why the Gemara insists that if the Machlokes between Rebbi Elazar and the Chachamim revolves around the question of Keren in Chatzer ha'Nizak, then they both follow Sumchus. Perhaps they both follow the Rabanan, and still one pays Nezek Shalem for damage done by Keren in Chatzer ha'Nizak!
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(Tosfos and other Rishonim write that according to the Rabanan who argue with Sumchus, one would not pay Nezek Shalem in the Chatzer of the Nizak, even according to Rebbi Tarfon, since Rebbi Tarfon learns his Halachah only from a Kal va'Chomer: if one pays Nezek Shalem for Shen and Regel in Chatzer ha'Nizak even though one is exempt for Shen and Regel in Reshus ha'Rabim, then certainly for Keren, for which one is liable in Reshus ha'Rabim, one must pay Nezek Shalem in Chatzer ha'Nizak. According to the Rabanan who argue with Sumchus, one would never pay Nezek Shalem for damage of Shen and Regel done through Tzeroros, similar to the damage of Keren (which the Gemara is discussing) which was done through Tzeroros, even in Chatzer ha'Nizak. Therefore, the Gemara must explain that Rebbi Elazar and the Chachamim follow Sumchus so that Rebbi Tarfon can rule that one is liable to pay Nezek Shalem for Keren in Chatzer ha'Nizak. Rashi here, however, is consistent with his own view and does not accept this, since later (DH d'Dachik Lah; see following Insight) Rashi writes either that one must pay Nezek Shalem for Tzeroros of Shen, or that there is no such thing as Tzeroros of Shen; in either case, one is always liable to pay Nezek Shalem for Shen in Chatzer ha'Nizak, and one will never pay only Chatzi Nezek. Therefore, the Kal va'Chomer is still valid according to the Rabanan who argue with Sumchus; they can make a Kal va'Chomer from Shen: if one pays Nezek Shalem in the Chatzer ha'Nizak even though one is exempt from Shen in Reshus ha'Rabim, then certainly one should have to pay Nezek Shalem for Keren, and Tzeroros of Keren, in Chatzer ha'Nizak. We cannot say that Tzeroros of Regel should refute the Kal va'Chomer, since one pays Chatzi Nezek for Tzeroros of Regel in the Chatzer ha'Nizak, since we cannot ask a Pircha from a Halachah that is known from a Halachah l'Moshe mi'Sinai.)
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Rashi answers that it was necessary to explain that Rebbi Elazar and the Chachamim follow Sumchus because if they follow the Rabanan, then why do the Chachamim say that one must pay Chatzi Nezek for Tzeroros of Keren? In the Gemara later, Rav Ashi asks that perhaps one must pay only a <i>quarter</i> of the Nezek for Tzeroros of Keren. Since the Gemara here does not want to get involved with Rav Ashi's question, it therefore says that the Chachamim follow Sumchus, who certainly rules that one pays Chatzi Nezek for Tzeroros of Keren, as one pays for normal Keren.
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This answer of Rashi, however, seems appropriate only according to the second Lashon of Rashi, in which he explains that the question of whether or not an animal that damages through Tzeroros can become Mu'ad (which was discussed earlier in the Gemara) is a question involving all cases of Tzeroros and not only Tzeroros of Keren. Accordingly, it is possible that Rava -- even if he rules that for Tzeroros of Keren one pays a quarter of the Nezek -- still could ask what the Halachah is in the case of normal Tzeroros of Regel: does the animal become Mu'ad, obligating the owner to pay Nezek Shalem, after it damages through Tzeroros three times? It is possible that for Tzeroros of Keren one pays a quarter of the Nezek the first three times and then pays Chatzi Nezek, while for Tzeroros of Regel one pays Chatzi Nezek the first three times and then pays Nezek Shalem. The Halachah l'Moshe mi'Sinai states simply that we delay the obligation of normal restitution until after the animal has damaged in this manner (Tzeroros) three times. That is why Rashi can say that it is possible that Rava, who was in doubt whether Tzeroros can become Mu'ad, may agree with Rav Ashi who says that perhaps one pays a quarter of the Nezek for Tzeroros of Keren. 
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(It is true that the Gemara later (beginning of 19a) says that if Rava rules 'Yesh Shinuy l'Tzeroros l'Revi'a Nezek,' it would be clear to him that Tzeroros could <i>not</i> become a Mu'ad. Nevertheless, Rashi (on 18b) explains that even if Rava rules 'Yesh Shinuy... l'Revi'a Nezek' it is still possible that he still questions whether Tzeroros can become a Mu'ad in the case of Tzeroros of Regel. There is a logical way to explain that approach as well, in contrast to the Gemara's approach on 19a.)
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However, according to the first Lashon of Rashi, the question of whether Tzeroros can become Mu'ad refers specifically to Tzeroros of Keren. If the Gemara wants to explain the Machlokes between Rebbi Elazar and the Chachamim in the Beraisa according to Rava -- who questions whether or not one pays Nezek Shalem for Tzeroros of Keren -- then obviously it cannot question whether for Tzeroros of Keren one pays <i>Revi'a</i> (a quarter) Nezek! The two questions are mutually exclusive: if one pays Revi'a Nezek for Tzeroros of Keren, then after three times he cannot pay more than Chatzi Nezek. On the other hand, if Rava is asking whether for Tzeroros of Keren one pays Nezek Shalem or Chatzi Nezek, then obviously he does not entertain the possibility that for Tzeroros of Keren one pays Revi'a Nezek. Why, then, would the Gemara have to say that Rebbi Elazar and the Chachamim follow Sumchus, and that the Chachamim maintain that for Tzeroros of Regel one pays Nezek Shalem and for Tzeroros of Keren one pays Chatzi Nezek? Even if the Chachamim follow the Rabanan who argue with Sumchus and say that for Tzeroros of Regel one pays Chatzi Nezek, for Tzeroros of Keren one would also pay Chatzi Nezek, according to Rava who questions whether one pays Nezek Shalem or Chatzi Nezek for Tzeroros of Keren after it damages three times! Rava clearly would say that after the first time, one <i>does</i> pay Chatzi Nezek for Tzeroros of Keren; one cannot assert that Rava wanted to avoid the question of Rav Ashi, because by definition his question already sides with Rav Ashi's question and clearly shows that he assumes that Tzeroros of Keren Tam pays Chatzi Nezek and not Revi'a Nezek.
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Therefore, there must be another way to explain the Gemara. Why does the Gemara explain that Rebbi Elazar and the Chachamim both follow Sumchus? (<b>TOSFOS HA'ROSH</b> and <b>TOSFOS RABEINU PERETZ</b> cited by the Shitah Mekubetzes ask a similar question on Rashi's explanation.) 
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Perhaps the explanation of Rashi may be understood based on the words of <b>TALMIDEI RABEINU PERETZ</b> in the name of 'Yesh Metartzim.' They explain that the Gemara does not mean that Rebbi Elazar and the Chachamim rule specifically like Sumchus. Rather, it means that they <i>even</i> could rule like Sumchus. The Gemara means that it makes no difference whether they rule like Sumchus or the Rabanan, since they are not discussing Tzeroros of Keren. They are discussing a case of <i>ordinary</i> Keren, where the dog placed the firebrand on the pile, and they are discussing only the 'Makom ha'Gacheles' according to Rebbi Yochanan, or the entire pile and field according to Reish Lakish. The Gemara does not mean that they are discussing Tzeroros of Keren.
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If this is correct, it is clear that according to the first Lashon of Rashi the Gemara does not have to be discussing Tzeroros of Keren, but rather just Keren. That is why Rashi (on 18a) explains that the Machlokes between Rebbi Elazar and the Chachamim according to this answer -- which says that it depends on the Halachah of Keren in Chatzer ha'Nizak -- involves <i>ordinary</i> Keren (where the dog placed the firebrand there with its mouth) and not Tzeroros. When Rashi continues and says that the answer is discussing <i>Tzeroros</i> of Keren, he is following the second Lashon he writes later (on 18b). According to that Lashon, as explained above, the Gemara specifically seeks to establish the Machlokes according to Sumchus and not according to the Rabanan.
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(The <b>SHITAH MEKUBETZES</b> cites the <b>GILYON</b> who even has this explanation as his Girsa in the words of Rashi on 18a, which reads that the Machlokes between Rebbi Elazar and the Chachamim is <i>not</i> according to Sumchus specifically, but that it is according to the Rabanan who argue with Sumchus, or, as explained above, according to the Rabanan of Sumchus and <i>even</i> according to Sumchus.)
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This also explains what Rashi (18b, DH d'Dachik) means when he says that when Rava answers that Rebbi Elazar and the Chachamim both follow Sumchus, 'he is just pushing off the answer.' Rashi is saying that the Gemara does not mean that Rebbi Elazar <i>must</i> rule like Sumchus, but rather that Rebbi Elazar could <i>even</i> rule like Sumchus. (This answers the question of the <b>RASHASH</b> here.)
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When Rashi (18b) says that the dog <i>threw</i> the firebrand, that is the same version of Rashi that explains that the Gemara is saying that Rebbi Elazar and the Chachamim <i>only</i> rule like Sumchus. That comment of Rashi is according to the second Lashon, and that is why he writes that the dog <i>threw</i> the firebrand and that it is a case of Shinuy (an unusual act) of Tzeroros (i.e. Tzeroros of Keren) and not just regular Keren. (M. Kornfeld)
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(A general point in understanding how to relate to the first Lashon and the second Lashon of Rashi, and the many contradictions in the Sugya, is as follows. It seems that Rashi wrote a commentary on the Sugya and later modified his understanding and added his new way of learning the Sugya. The new way that he learned is the <i>first</i> Lashon, for that seems to be the commentary of Rashi after he modified is original understanding. Although Rashi writes in the <i>second Lashon</i>, 'so I have heard and that is the Ikar,' that does not mean that this is how Rashi himself prefers to learn. Rather, either he wrote that before he changed his mind, or he means that this is how most people learn the Sugya. This is evident from the fact that Rashi himself immediately asks a question on the second Lashon, showing that the first Lashon is Rashi's preferred one.
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Such occasions of different, conflicting Leshonos in Rashi are found in other places (see Rashi 16a, DH Lo Kasha). In general, the rule is that the first Lashon is the one that Rashi prefers. He puts it first in order to indicate that we should learn the Gemara according to that explanation. The second Lashon is included out of respect for his teachers, or because that is how he wrote the commentary on the Gemara originally when he relied on the explanation of others, until he learned the Sugya again and decided to change his commentary. That is why, in the Sugya here, Rashi inserts the first Lashon before the second Lashon -- it is his conclusive explanation of the Sugya (that it is discussing Tzeroros of Keren when it asks whether Tzeroros can become Mu'ad). When Rashi added his new explanation, he also reviewed the Sugya and, in many places, in the beginning of a comment that discusses a point that is related to something that changed according to his new explanation, Rashi inserted a few words to explain the Gemara according to his new explanation, and this is, again, always at the beginning of his comment (for example, in the comment explained above on 18a, DH Ela Kegon). However, the old explanation still remains in the text of Rashi, since he did not take out the second Lashon. That is why, in many comments of Rashi, Rashi seems to contradict himself, switching back and forth between the first Lashon and the second Lashon, such that the <b>MAHARSHAL</b> finds it necessary to erase many words at certain points or to point out the variances (for example, see Rashi 18b, DH l'Keren, and DH O Dilma, and at the end of 19a; see also Insights there). In general, as mentioned above, the new explanation that Rashi adds is usually in the beginning of his comments.
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However, Rashi did not re-write his comments in every single place that must be changed (slightly or considerably) based on his new, conclusive explanation. Therefore, in a number of places Rashi's commentary still clings to the second Lashon, meaning his original explanation, and he does not correct it. He just corrects his comments at the primary places which affect the Sugya. An example of this is on 6b, in DH Shor Re'ehu, where Rashi offers two explanations, and he explains the Sugya on 7a according to his second explanation, as pointed out in Insights there. Nevertheless, his conclusive explanation does seem to be his first explanation (that the Petur of Hekdesh is derived from Keren to all of the other Mazikin), since Rashi writes this explanation again in the Mishnah on 9b (DH Nechasim). That is why Rashi inserted it in the beginning of his comments, as the first explanation in the Sugya (and Rashi in Gitin writes <i>only</i> that explanation, as mentioned in Insights to 7a). Nevertheless, Rashi did not change his entire commentary on the Sugya on 7a, but he merely recorded the new, conclusive explanation in the place where it was most central and relevant to the Sugya.)
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<font><b>2) 'TZEROROS' OF 'SHEN'</b></font><b>
<br>OPINIONS:</b> The Gemara discusses the Halachah of Tzeroros of Regel: the owner of an animal that does damage through Tzeroros of Regel pays Chatzi Nezek because of a Gezeiras ha'Kasuv. What, though, is the Halachah of Tzeroros of <i>Shen</i>? The Gemara discusses only Tzeroros of Regel and Tzeroros of Keren (in which the Tzeroros were kicked up in an unusual manner, as Rashi mentions at the beginning of 18b, and as the Gemara says at the end of 19a, according to the first Lashon of Rashi). However, Tzeroros of Shen is not discussed. Is there a Halachah of Tzeroros for Shen?
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On one hand, the Gemara (17b) mentions as an example of Tzeroros a 'Chazir she'Hayah Nover b'Ashpah' -- a swine that was shoving around with its snout in the garbage in order to find food, and it kicked out Tzeroros. The Gemara says that the owner, in such a case, must pay Chatzi Nezek. This seems to imply that Tzeroros of Shen is the same as Tzeroros of Regel.
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On the other hand, when the Gemara earlier (3b) has a lengthy discussion in which it searches for cases of Toldos which are not similar to their Avos, the only case that it finds is that of a Toldah of Regel -- that case being Tzeroros of Regel, for Tzeroros is a Toldah which is not similar to the Av. The Gemara does not mention Tzeroros of Shen, which should also be a case of a Toldah which is not similar to its Av. This implies that there is no such Halachah of Tzeroros of Shen.
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(a) <b>RASHI</b> (DH d'Dachik Lah Alma) points out that the Gemara here gives as an example of Tzeroros the case of 'Hetilah Gelalim l'Isa' (the animal released its waste upon someone's dough), whereas the Gemara earlier (3a) taught that 'Tinfah Peros l'Hana'asah' (the animal derived pleasure out of soiling someone's fruit) is a Toldah of Shen and pays Nezek Shalem. The case of 'Tinfah Peros l'Hana'asah' seems to be a case in which the animal eliminated on the fruit and thereby ruined it; why, then, should that be different from the case of the Gemara here, which is a case of Tzeroros in which the owner pays only Chatzi Nezek? 
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In his first answer, Rashi explains that, indeed, if the animal would have derived pleasure from leaving its waste upon the dough, its owner would have had to pay Nezek Shalem, like a normal Toldah of Shen. However, in this case, the animal derived no pleasure from its act (the animal was ill and the waste came out by itself), and therefore the damage is not a Toldah of Shen. Rather, it is a Toldah of Regel and that is why the owner must pay only Chatzi Nezek.
</p><p>
It is clear from Rashi that any Toldah of Shen pays Nezek Shalem even if it damages via 'Kocho,' in a way similar to Tzeroros, rather than through direct contact between its body and the item that it breaks. It is only with regard to Regel that one must pay Chatzi Nezek for Tzeroros when the animal damages through 'Kocho.' Why, though, should that be so? The Gemara (3a) teaches that Shen and Regel are exactly the same with regard to obligating one to pay for damages! How, then, can their Halachos differ with regard to Tzeroros? The Halachah of Tzeroros should apply to both of them equally.
</p><p>
The answer is that the Halachah that Tzeroros pays Chatzi Nezek is a Halachah l'Moshe mi'Sinai. The Halachah l'Moshe mi'Sinai was given only with regard to Regel and not with regard to Shen. Therefore, for damage caused by Shen one pays Nezek Shalem since there is no Halachah l'Moshe mi'Sinai to teach that one pays any other amount. Moreover, the Halachah of Shen cannot be derived from Regel through a Binyan Av, because a Binyan Av, or Kal va'Chomer, cannot apply to a Halachah taught by a Halachah l'Moshe mi'Sinai (even if there would be no Pircha). Why, then, does the Gemara discuss whether there is Tzeroros of <i>Keren</i>? The Gemara discusses whether an animal that causes damage three times through Tzeroros of Keren becomes a Mu'ad or not; according to Rashi's first Lashon, the Gemara is asking whether the Halachah l'Moshe mi'Sinai -- that says that one pays Chatzi Nezek for damage of Tzeroros -- applies to Keren. From the Gemara later (19a) it seems that the question is whether the Halachah l'Moshe mi'Sinai was given only with regard to Regel or also with regard to Keren. If it was given with regard to Keren as well, then even after three times one will pay only Chatzi Nezek. (See Insights to 19a.) If, however, the Halachah l'Moshe mi'Sinai does not apply to Shen, why should the Gemara entertain the possibility that it applies to Keren?
</p><p>
The answer seems to be that, according to Rashi here, indeed the question of the Gemara is not only with regard to Keren, but with regard to Shen as well. The Gemara is asking whether there is a Halachah of Tzeroros for either Keren or Shen. The Gemara phrases this question with regard to Keren and asks whether one must pay Nezek Shalem after damage is done by Tzeroros of Keren three times. The same question, though, applies to Shen: does one pay Chatzi Nezek for Shen, as one pays for Regel, when it damages through Tzeroros, or not? Since Rashi at this point is explaining according to the Gemara's proposition that perhaps Tzeroros of Keren is like a case of a normal Keren and it can become Mu'ad after three times, he wants to explain that Tzeroros of Shen is also like a case of a normal Shen, just as Tzeroros of Keren is like a case of a normal Keren. However, according to the other view that Tzeroros of Keren cannot become Mu'ad and the Halachah of Tzeroros applies to Keren, it will apply to Shen as well, and the owner will pay Chatzi Nezek.
</p><p>
The Gemara earlier (3b) that says that the only known case of Tzeroros is Tzeroros of Regel also avoids the question of whether Tzeroros can become Mu'ad, meaning whether Tzeroros applies to things like Shen and Keren and not just to Regel, and that is why it mentions only the Toldah of Regel.
</p><p>
According to this explanation of Rashi, what does the Gemara (17b) mean when it says that a 'Chazir she'Hayah Nover b'Ashpah' is considered Tzeroros? It should be a Toldah of Shen since the animal does damage by making Tzeroros through the process of eating, and therefore the owner should have to pay Nezek Shalem! The answer is that Rashi maintains that in that case, too, when the animal was shoving around in the garbage for food, it was not deriving pleasure from its act, and therefore the damage it caused is a Toldah of Regel.
</p><p>
(b) Rashi continues and cites another way to differentiate between the Sugya earlier (3a) which discusses 'Tinfah Peros' and the Sugya here, which says that 'Hetilah Gelalim' is Tzeroros, and he adds that this is the correct explanation. Rashi writes that 'Hatalas Gelalim' is always pleasurable for the animal ('l'Hana'asah'). The reason why the Gemara here does not consider 'Hatalas Gelalim' a Toldah of Shen is that one of the defining factors of Shen is that the animal has physical contact with the object that it damages. It cannot be considered Shen when the animal damaged the item merely by pushing something else that then pushed the object and damaged it (which is the case of 'Hatalas Gelalim'). Therefore, any damage done through the animal's 'Ko'ach' and not through direct contact with the item is always a Toldah of Regel and, by definition, cannot be a Toldah of Shen, because part of the definition of Shen is that the animal had pleasure from the object that it damaged through direct contact. This seems to be the way Rashi explains earlier (3a, DH Nis'chachah, and 17b, DH Tzeroros Ki Orchaihu). Why, then, does the Gemara question whether Tzeroros of Keren has the Halachah of Tzeroros or not? Keren should also be the same as Shen; it should only be considered Keren when the animal damages through direct contact and not through Tzeroros! Whenever it damages through Tzeroros, it should be considered a Toldah of Regel.
</p><p>
The answer might be that Shen is a form of damage done through the Hana'ah that the animal derives. That Hana'ah is not evident in the object that the animal pushes when it damages through Tzeroros. When the animal leaves its waste on an item, the animal's Hana'ah occurs only at the moment that the waste exits its body. Afterwards, when the waste damages someone's item, it is unrelated to the Hana'ah of the animal. Therefore, it is Shen only when the animal damages through direct contact with the object that it damages, such that the object that it damages is related to the Hana'ah that the animal derives at the time that it damages.
</p><p>
In contrast, the defining factor of Keren is that the animal acted in an unusual manner. Hence, even when the animal pushes an object in an unusual way, what the object then does is also related to something unusual. The object normally would not be flying through the air in this manner, since the animal normally does not kick it. Therefore, the object that is damaged through Tzeroros ('Kocho') of Keren might also be considered a Toldah of Keren, since the change in the normal manner is evident in the Tzeror (the rock that was kicked by the animal) itself. That is why the Gemara questions whether there is a Halachah of Tzeroros of Keren or that perhaps all cases of Tzeroros are a Toldah of Regel, since it is not damaging through direct contact.
</p><p>
According to this explanation of Rashi, it is also clear why the Gemara (3b) does not suggest that the case of a Toldah that is not like its Av is a case of Tzeroros of Shen, since there is no such thing as Tzeroros of Shen. The Gemara there does not mention Tzeroros of Keren because whether or not there is such a thing as Tzeroros of Keren is a question in the Gemara later.
</p><p>
Also, according to this explanation, it is also clear why a 'Chazir she'Hayah Nover b'Ashpah' (17b) is considered a Toldah of Regel and not a Toldah of Shen. Damage caused through 'Kocho' and not through direct contact cannot be considered a Toldah of Shen, as Rashi himself writes.
</p><p>
<b>TOSFOS SHANTZ</b> and <b>TOSFOS RABEINU PERETZ</b> (3a) also seem to understand that there is no Tzeroros of Shen when an animal leaves its waste on food, but for a different reason. They explain that in order for something to be a Toldah of Shen, the animal must receive Hana'ah from the damage that was done to the object. In the case of 'Hatalas Gelalim,' it makes absolutely no difference to the animal whether its waste falls upon the food or upon the ground; where it falls has nothing to do with the Hana'ah that the animal derives. The same is true in most other cases where an animal causes damage through an indirect act ('Kocho') which gives it Hana'ah; the Hana'ah it gets is not from the object which eventually becomes damaged from something that the animal pushed. Rather, the Hana'ah that it gets is from pushing the first item. Therefore, they explain, 'Hatalas Gelalim' is not considered a Toldah of Shen.
</p><p>
In fact, these Rishonim also do not explain that the case of 'Tinfah Peros' (3a), which is a Toldah of Shen, is where the animal rolled on food, as Rashi explains. Perhaps they explain it differently because it makes no difference to the animal whether it rolls on food or on the ground -- it simply likes to roll on its back. Therefore, that case also should not be considered a Toldah of Shen. Rather, they explain that the case of 'Tinfah Peros l'Hana'asah' means that the animal sat down on the fruit either because the fruit was cold and the animal was able to cool itself off by sitting on the fruit, or because the fruit was soft and the animal wanted to rest on something soft. That is why the case of 'Tinfah Peros' is a Toldah of Shen. 
</p><p>
Hence, according to their explanation as well, it is clear why the Gemara (3b) does not mention Tzeroros of Shen as a case of a Toldah which is not similar to its Av. Similarly, the case (17b) of a 'Chazir she'Hayah Nover b'Ashpah' is also a Toldah of Regel according to their explanation. 
</p><p>
(c) <b>TOSFOS</b> (17b, DH Nover, and 18b, DH Bein), however, does mention the concept of Tzeroros of Shen. He clearly understands that Tzeroros can apply equally to any of the Mazikin (Keren, Shen, and Regel), and a 'Chazir she'Hayah Nover b'Ashpah' is a Toldah (Tzeroros) of Shen.
</p><p>
How does Tosfos understand the case of 'Tinfah Peros' (3a), in which the owner pays Nezek Shalem? Why is he not obligated to pay only Chatzi Nezek, like Tzeroros, when the animal damages through 'Hatalas Gelalim'? Tosfos will have to explain that in the case there the animal damages in a way that is not Tzeroros, either because the animal rolled on the fruit (as Rashi explains), or that it sat on the fruit (as the Rash mi'Shantz explains), or, as the <b><b><b>RI</b></b> MI'GASH</b> explains (cited by the Shitah Mekubetzes on 19a), that the animal was ill and its waste was a continuous flow that came directly from the animal to the fruit that it damaged, and therefore it is not similar to a pebble that shoots out from the animals foot since the waste is still touching the animal at the time that it damages the object.
</p><p>
Why does the Gemara (3b) mention only Tzeroros of Regel as a Toldah that is dissimilar to its Av? What about Tzeroros of Shen and Keren? The <b>SHITAH MEKUBETZES</b> and the <b>TALMID HA'RASHBA V'HA'ROSH</b> (2a) cite <b>RABEINU YONAH</b> who explains that the Gemara there mentions the example that is most common. Tzeroros of Regel is the most common case of Tzeroros, and that is why the Gemara mentions it. It is true, however, that there are also cases of Tzeroros of Shen and of Keren which are cases of a Toldah that is not similar to its Av. In fact, the Shitah Mekubetzes points out that this is why Rav Papa did not simply say that 'there is <i>one</i> case of a Toldah that is not similar to its Av,' but rather he said that 'there are <i>some</i> Toldos that are not similar to their Avos'; he was alluding to the Toldos of Keren, Shen, and Regel which are not like their Avos, since Tzeroros applies to all three types of Nezikin. 
</p><p>
According to Tosfos, why does the Gemara (18b and 19a) discuss whether the Halachah of Tzeroros applies to Keren? It should be obvious that it applies to Keren, just as it applies to Shen! The answer is that Tosfos explains those Gemaras differently, in accordance with his explanation here (DH b'Mu'ad) which is consistent with the second Lashon of Rashi (on 18b). He learns that the question of whether or not Tzeroros of Keren can become Mu'ad is not whether or not Tzeroros applies to Keren altogether, but rather it is a question concerning Tzeroros of Regel. Similarly, the Gemara (on 19a) is discussing Tzeroros of Regel when it questions whether one is exempt in Reshus ha'Rabim or not, and it is not discussing specifically Tzeroros of Keren.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Defense #2 (Rav Sama):</font></b> R. Elazar says that it became 
          Mu'ad for damage through Tzeroros.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first Tana holds that Tzeroros cannot become 
               Mu'ad. R. Elazar holds that they can.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Rava never resolved this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rava):</font></b> Can Tzeroros become Mu'ad?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Rav Sama, Chachamim say that they 
               cannot, and R. Elazar says that they can!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Rava asked (whether Tzeroros can become Mu'ad) 
          according to Chachamim who argue with Sumchus. R. Elazar 
          and his Chachamim (those who argue with him) all hold 
          like Sumchus.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> If R. Eliezer's Chachamim hold like Sumchus, 
          they should obligate full damage!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Chachamim obligate half-damage for the cake 
          because it was abnormal, and it did not become Mu'ad for 
          this. R. Elazar and his Chachamim argue like R. Tarfon 
          and his Chachamim.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> R. Tarfon said that Keren in the victim's 
          premises pays full damage. Do we have any source that it 
          pays only mi'Gufo?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Yes! He learns from a Kal va'Chomer, from Keren 
          in Reshus ha'Rabim. The principle of Dayo (a Kal 
          va'Chomer cannot teach more than the source) dictates 
          that it only pays mi'Gufo.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> But R. Tarfon disagrees with the principle of 
          Dayo!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> He argues only when the Kal va'Chomer does not 
          teach anything new (e.g. we knew half-damage without the 
          Kal va'Chomer). Once we learn a Chidush (e.g. full 
          damage), he agrees to Dayo.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CAN TZEROROS BECOME MU'AD?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Can Tzeroros become Mu'ad?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we compare them to Keren (they can become 
               Mu'ad)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since they are a Toldah of Regel, they cannot 
               become Mu'ad.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Beraisa):</font></b> Dancing (of a chicken) is not 
          Mu'ad;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>Some say, it is Mu'ad.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection:</font></b> Surely, dancing is Mu'ad!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, a chicken danced and strewed 
               up pebbles.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> The chicken has done this three 
               times. They argue about whether or not it becomes 
               Mu'ad.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, they argue about the first time it 
          happens, like Sumchus and Chachamim argue.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Amora'im argue about Rava's question.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If an animal excreted on a dough, it 
               pays full damage;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Elazar says, it pays half-damage.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> The animal has done this three times 
               three times; they argue about whether or not it 
               becomes Mu'ad.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. They argue the first time it happens, 
          like Sumchus and Chachamim argue.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> But this is abnormal! (Why does Rav Yehudah 
          obligate full damage?)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It had no other place to excrete, so it was 
          normal.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Yehudah should have said 'the Halachah 
          follows Sumchus', and R. Elazar should have said 'the 
          Halachah follows Chachamim'! (Why did they teach about a 
          particular case?)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> There is a Chidush in the law of excrement. One 
          might have thought that since it comes from the body, all 
          agree that it is like bodily damage. They teach that this 
          is not so.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #3 (Rami bar Yechezkel - Beraisa):</font></b> If a chicken 
          stuck its head into a glass Kli and cackled, breaking it, 
          it pays full damage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> If a horse or donkey neighed and 
               broke Kelim, it pays half-damage.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> They did so three times. They argue 
               about whether or not it becomes Mu'ad.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SPECIAL CASES OF TZEROROS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. They argue the first time it happens, 
          like Sumchus and Chachamim argue.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> This is abnormal!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> There were seeds in the Kli (so it is normal to 
          stick its head in and cackle).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> Does an abnormal case of Tzeroros 
          pay half-damage or quarter damage?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Suggestion:</font></b> We can settle the question from Rava.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rava):</font></b> Can Tzeroros become Mu'ad (to 
               pay full damage)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If abnormal Tzeroros pay only quarter-damage, 
               surely they would not become Mu'ad to pay full 
               damage!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps Rava himself was unsure whether 
          abnormality applies to Tzeroros;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He asked, if abnormality does not apply to 
               Tzeroros, can Tzeroros become Mu'ad?
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rav Ashi's question is unresolved.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> Does Sumchus consider impetus of 
          impetus like impetus (the damager set something in 
          motion, it set something else in motion which then 
          damaged), or not?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does he learn a tradition from Sinai (of half-
               damage), and apply this to impetus of impetus?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, does he have no tradition (of half-damage of 
               impetus) at all?
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	This question is unresolved.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW TO READ THE MISHNAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If it was kicking, or pebbles were being 
          strewn by its feet and Kelim were broken, it pays half-
          damage.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> How do we read the Mishnah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does it say 'if it kicked and damaged, or if it 
               strewed up pebbles (while walking normally) and 
               damaged, it pays half-damage?'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If so, it is like Chachamim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, if it kicked and damaged, or if it 
               (abnormally) kicked pebbles and damaged, it pays 
               half-damage?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If so, it is like Sumchus.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Reisha):</font></b> If it trampled on a Kli and broke it, 
          and (fragments) broke another Kli, it pays full damage 
          for the first Kli, and half-damage for the second.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is unlike Sumchus. He holds that Tzeroros 
               pay full damage!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps the Mishnah means that he pays full 
          damage for the 'first Kli' broken by shards of the 
          trampled Kli, and half-damage for the 'second Kli' (the 
          one broken by shards of the 'first Kli')!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We must say that Sumchus differentiates between 
               impetus and impetus of impetus.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> But Rav Ashi never resolved whether Sumchus 
          differentiates between impetus and impetus of impetus!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Ashi established the Mishnah like 
          Chachamim. His question (1:a, about abnormal Tzeroros), 
          was based on how to read the Mishnah:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does it say 'if it kicked and damaged, or if it 
               strewed up pebbles (normally) and damaged, it pays 
               half-damage?'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had it abnormally kicked pebbles and damaged, it 
                    would pay quarter damage.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, does it say 'if it kicked and damaged, or if 
               it (abnormally) kicked pebbles and damaged, it pays 
               half-damage?
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	The question is unresolved.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHERE ARE TZEROROS LIABLE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Aba bar Mamal):</font></b> If an animal was walking 
          in a place where it must strew up pebbles, and it kicked 
          pebbles and damaged, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since it had to strew up pebbles, this is normal;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since it kicked, it is abnormal?
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	This question is unresolved.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (R. Yirmiyah):</font></b> If an animal was walking in a 
          Reshus ha'Rabim and strewed up pebbles and damaged, what 
          is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we compare it to Keren, and it is liable?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since Tzeroros are a Toldah of Regel, it is 
               exempt?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (R. Zeira):</font></b> Presumably, since Tzeroros are a 
          Toldah of Regel, it is exempt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (R. Yirmiyah):</font></b> If it strewed up pebbles in a 
          Reshus ha'Rabim and damaged in a Reshus ha'Yachid 
          (private domain) what is the law?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (R. Zeira):</font></b> Since he is exempt at the place 
          where it strewed them up, he is not liable for where they 
          land.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (R. Yirmiyah - Beraisa):</font></b> It was walking and 
          strewed up pebbles, whether in a Reshus ha'Rabim or a 
          Reshus ha'Yachid, it is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It strewed up in a Reshus ha'Rabim, 
               and damaged in the Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (R. Zeira):</font></b> No, it strewed up in a Reshus 
          ha'Rabim, and damaged in a Reshus ha'Yachid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yirmiyah:</font></b> You said that also that is exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Zeira:</font></b> I retract (that law).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (R. Yirmiyah - Mishnah):</font></b> If it trampled on a 
          Kli and broke it, and (fragments) broke another Kli, it 
          pays full damage for the first Kli, and half-damage for 
          the second.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> This is only in the victim's premises. 
               In a Reshus ha'Rabim, he is exempt for the first 
               Kli, and liable for the last.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> It strewed up in a Reshus ha'Rabim, 
                    and damaged in the Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (R. Zeira):</font></b> No, it strewed up in a Reshus 
          ha'Rabim, and damaged in a Reshus ha'Yachid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yirmiyah:</font></b> You said that also that is exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Zeira:</font></b> I retracted.
<br>
<br>

sjt:
<font><b>1) CAN THERE BE DISAGREEMENT ABOUT A 'HALACHAH L'MOSHE MI'SINAI'?</b></font><b>
<br>QUESTION:</b> Rav Ashi asks whether Sumchus considers 'Ko'ach Kocho' the same as 'Kocho' or not. Did he receive the tradition that a Halachah l'Moshe mi'Sinai obligates one to pay Chatzi Nezek for damages of Tzeroros in a case of 'Ko'ach Kocho,' or did he receive no such tradition? The Gemara leaves this question unresolved.
</p><p>
How can the Gemara suggest that Sumchus argues with a known Halachah l'Moshe mi'Sinai? Does this imply that a Halachah l'Moshe mi'Sinai is subject to dispute, and that there can be different traditions about Halachos l'Moshe mi'Sinai?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAM</b> writes (in introduction to Perush ha'Mishnayos, and in Hilchos Mamrim 1:3) that whatever was received through tradition as a Halachah l'Moshe mi'Sinai will never be the subject of dispute. This is also the implication of Tosfos in Yevamos (77b, DH Halachah; see also Tosfos Yom Tov to Temurah 3:3, DH Temuras Asham).
</p><p>
However, the Rambam himself (in his introduction there) composes a list of 'most and perhaps all' of the Halachos l'Moshe mi'Sinai mentioned in Shas. His list includes only 22 Halachos, and the Halachah of Tzeroros is not one of them.
</p><p>
The <b>CHAVOS YA'IR</b> (Teshuvah #192) discusses at length whether a Halachah l'Moshe mi'Sinai can be subject to dispute. He lists 75 Halachos l'Moshe mi'Sinai (including the Halachah of Tzeroros), and he questions why the Rambam does not mention the other Halachos l'Moshe mi'Sinai. In fact, most of the Halachos l'Moshe mi'Sinai which the Chavos Ya'ir cites indeed are subject to dispute in the Gemara. The Chavos Ya'ir concludes that the Rambam maintains that not every Halachah for which the Gemara uses the term 'Gamra Gemiri Lah' is actually a Halachah l'Moshe mi'Sinai. (He proves this at length from a number of Sugyos.)
</p><p>
He also infers this from the words of the Rambam in Mishneh Torah, who mentions the words 'Halachah l'Moshe mi'Sinai' explicitly only with regard to the 22 Halachos which he lists in his introduction. For the other Halachos (including the Halachah of Tzeroros), he writes either 'Halachah mi'Pi ha'Kabalah' (such as for Tzeroros, in Hilchos Nizkei Mamon 2:1), 'mi'Pi ha'Shemu'ah,' 'Nitan Lahem mi'Sinai,' or 'mi'Pi Moshe Rabeinu Nishme'u.' (See Chavos Ya'ir there, 192:6, 24, 25.) Accordingly, no question may be asked on the Rambam's assertion from the argument of the Tana'im with regard to the Halachah of Tzeroros.
</p><p>
The Chavos Ya'ir there (#6) proves from many sources that even according to the Rambam the <i>details</i> of a Halachah l'Moshe mi'Sinai can be subject to dispute. It is only the general Halachah which is not subject to Machlokes. Hence, according to the opinion that Sumchus agrees with regard to 'Ko'ach Kocho,' there is no question. Sumchus certainly agrees with Halachah l'Moshe mi'Sinai; he disagrees merely with the details.
</p><p>
(b) However, the Chavos Ya'ir there points out that, apparently, not everyone agrees with the words of the Rambam. Tosfos in Eruvin (21b, DH Mipnei) clearly implies that it is possible for a Halachah l'Moshe mi'Sinai to be forgotten, and thus it is possible for it to be subject to Machlokes (in contrast to what the Rambam writes, that it is not possible for a Halachah l'Moshe mi'Sinai to be forgotten). This is also the Chavos Ya'ir's own conclusion, which he bases on numerous sources in the Gemara and on logical arguments. (One of his proofs is from the Halachah of Tzeroros -- the 27th Halachah l'Moshe mi'Sinai in his list.)
</p><p>
 
</p><p>
<font><b>2) 'TZEROROS' IN RESHUS HA'RABIM</b></font><b>
<br>QUESTION:</b> The Gemara presents the question of Rebbi Yirmeyah: If an animal was walking in Reshus ha'Rabim and it kicked up Tzeroros and caused damage, is the owner liable or exempt? Is it like Keren, for which one is liable in Reshus ha'Rabim, or is it a Toldah of Regel for which one is exempt in Reshus ha'Rabim? Rebbi Zeira replies that it makes sense that it is a Toldah of Regel and one is exempt for damage done by Tzeroros in Reshus ha'Rabim.
</p><p>
The word 'u'Va'atah' ('and it kicked') in Rebbi Yirmeyah's question is printed in parentheses in our texts of the Gemara (Vilna edition), with a marginal note stating that the <b>MAHARAM</b> deletes this word from the text. In fact, most older manuscripts and most Rishonim do not include this word in the text. Nevertheless, it is possible to explain that the Gemara's question <i>is</i> when the animal kicked the Tzeroros (kicking being an unusual manner for the animal to act), whether it states so explicitly or not, and many Rishonim indeed explain the Gemara in this way. It is also possible to explain that the question is when the animal causes Tzeroros to fly out <i>without</i> kicking but rather in the normal manner of Regel.
</p><p>
The problem is that the Gemara's question seems difficult to understand either way. If the Gemara's question is specifically when the animal <i>kicks</i> the Tzeroros, then the question is whether Tzeroros of <i>Keren</i> is considered like Keren or like a Toldah of Regel. However, the Gemara asks whether Tzeroros of Keren can become a Mu'ad ('Yesh Ha'ada'ah l'Tzeroros') after three times (according to the first Lashon of Rashi), which implies that the Gemara <i>does</i> consider the possibility that Tzeroros of Keren <i>is</i> considered like Keren, but the Gemara here concludes unequivocally that it is a Toldah of Regel and one is exempt for Tzeroros in Reshus ha'Rabim. Why, then, should there be a question of 'Yesh Ha'ada'ah l'Tzeroros'? 
</p><p>
Also, why should Rav Ashi have a question (at the beginning of 19a) whether 'Yesh Shinuy' for Tzeroros of Keren, such that the owner would pay only Revi'a (quarter) Nezek? If it is like a Toldah of Regel, why should the owner pay only Revi'a Nezek?
</p><p>
On the other hand, if the question of the Gemara refers to an ordinary case of Tzeroros (where the animal was walking in its normal manner, and not where it kicked up the Tzeroros), then why is there any a question altogether whether one is exempt for Tzeroros in Reshus ha'Rabim? In the Gemara earlier (3b), all of the Amora'im agree that one is <i>exempt</i> for Tzeroros in Reshus ha'Rabim, and that is why it is a Toldah of Regel. Why should the Gemara here raise the question again?
</p><p>
This question becomes even more complicated because <b>RASHI</b> seems to alternate back and forth between the two explanations. He writes first (DH l'Keren Medaminan Lah) that the question is whether this case is comparable to Keren 'since the animal kicked,' but then he writes, 'and one is Chayav to pay Chatzi Nezek as for Keren,' implying that it is compared to Keren because one pays Chatzi Nezek, referring to <i>all</i> cases of Tzeroros and not just to a case where the animal kicked. Similarly, in his next comment (DH O Dilma) Rashi begins by saying that the question is whether 'all Tzeroros are a Toldah of Regel,' meaning even Tzeroros of Keren, but then he continues and says that 'Tzeroros done in a normal manner (k'Orchaihu) is a Toldah of Regel'! Throughout his following comments as well, Rashi seems to alternate back and forth between the two explanations of the question. How are we to understand the Gemara and Rashi?
<br>Xx 315 minutes 
</p><p>
<b>ANSWERS:</b>
<br>(a) The Rishonim present two distinct ways of explaining the Gemara. These two ways apparently depend on the first Lashon and second Lashon in <b>RASHI</b> earlier (18b, DH Ela), as is evident from Rashi's words on the Rif, where he seems to follow the original explanation of Rashi on the Gemara (that is, the second Lashon of Rashi on 18b; see end of Insights to 18:1). Hence, there are a number of important differences in the words of Rashi on the Rif and in his words on the Gemara.
</p><p>
Rashi on the Rif omits the words, 'v'Chayeves Chatzi Nezek k'Keren' ('and it is liable for Chatzi Nezek like Keren'). In the next comment, he omits the word, 'k'Orchaihu.' These changes clearly indicate that he understands that the question of the Gemara concerns specifically a case where the animal <i>kicked</i>; the Gemara is asking whether Tzeroros of Keren is like normal Tzeroros of Regel or whether its Halachos are different.
</p><p>
In fact, in the previous comment of Rashi on the Rif (which corresponds to Rashi's words on the Gemara, DH O Dilma), he adds a number of words which makes this even more evident. Rashi there refers to the question of the Gemara concerning an animal that walked in a place where it could not help but cause Tzeroros to fly up even when it walked in its normal manner, but it <i>kicked</i> (an unusual act) and caused Tzeroros to fly up. The Gemara asks whether such a case has the law of Keren or the law of Regel. Rashi asks what is the difference -- Tzeroros of Keren and Tzeroros of Regel have the same Halachah! In his first answer, Rashi writes that for Tzeroros of Keren one might have to pay Revi'a Nezek (according to one side of the question of Rav Ashi). In his second answer ('Lishna Acharina mi'Pi ha'Moreh' -- 'another version in the name of the teacher'), Rashi writes that the difference is that if it kicks up Tzeroros three times, it will become a Mu'ad and obligate the owner to pay Nezek Shalem (according to the side of the question of whether 'Yesh Ha'ada'ah l'Tzeroros'), if the act is considered Tzeroros of Keren. Rashi then writes that the first answer is the correct one and not the second answer. Rashi on the Rif adds <i>why</i> the second answer is incorrect. The second answer is incorrect because Tzeroros of Keren is <i>not</i> considered any different from Tzeroros of Regel, since the Gemara itself -- in its next question -- concludes that for Tzeroros of Keren one is exempt in Reshus ha'Rabim because it is considered a Toldah of Regel. If Tzeroros is a Toldah of Regel, the Halachos of Tzeroros of Keren and Tzeroros of Regel cannot be different!
</p><p>
With this explanation, Rashi on the Rif effectively rejects absolutely the first Lashon of Rashi on the Gemara (18b) where he writes that the question of 'Yesh Ha'ada'ah l'Tzeroros' <i>is</i> whether one must pay Nezek Shalem for Tzeroros of Keren after the animal does damage in that manner three times, and it is different from Tzeroros of Regel!
</p><p>
It is clear that Rashi on the Rif follows the second Lashon of Rashi on the Gemara, and that is why he explains the question of Rebbi Yirmeyah (at the end of 19a) as a question of whether Tzeroros of Keren is different from Tzeroros of Regel. The question applies in a case where the animal kicks (making it Tzeroros of Keren, an unusual act), and the question is whether it can become a Mu'ad after three times (or is liable in Reshus ha'Rabim). The Gemara concludes that it actually is a Toldah of Regel. (The logic for this is, as explained in Insights to 18b, that an act is considered a Toldah of Keren <i>only</i> when the animal actually comes in direct contact with the object that it damages, but not when it pushes something else that then damages the object, similar to what Rashi writes with regard to Tzeroros of Shen.)
</p><p>
One might ask that according to this explanation, what is the question of Rav Ashi when he asks does one pays Revi'a Nezek for Tzeroros of Keren? The answer is that even if Tzeroros of Keren has the <i>Kulos</i> (leniencies) of Tzeroros of Regel and one is therefore exempt in Reshus ha'Rabim, since the Halachah l'Moshe mi'Sinai of Tzeroros is lenient in a case of Tzeroros perhaps it <i>also</i> has the Kula of Keren, and therefore it also pays <i>half</i> of the Chatzi Nezek of Tzeroros (i.e. a Revi'a Nezek), until it does the act three times. It can have the Kulos of both Regel and Keren: it is exempt in Reshus ha'Rabim, and it pays only a quarter of the Nezek. However, it cannot have the <i>Chumros</i> of Keren and obligate the owner to pay Nezek Shalem after three times.
</p><p>
This approach is consistent with Rashi's second Lashon, the original way in which Rashi learned the Gemara.
</p><p>
This is also the way the <b>RAMBAM</b> (Hilchos Nizkei Mamon 2:5) explains the Gemara: the question of the Gemara applies to a case where the animal kicked, and the Gemara is asking whether one is exempt in Reshus ha'Rabim for Tzeroros of Keren.
</p><p>
(b) However, as mentioned earlier, Rashi retracted his original explanation and added a new Lashon to his commentary. The first Lashon (the new one) <i>does</i> conform with the explanation of the 'Moreh' which he cites here (19a, DH O Dilma). This is why Rashi also omits the question he asked on that explanation in his original commentary, which is included in the words of Rashi on the Rif. Since he sides with that explanation, he no longer questions it (see Insights to 18:1, where we show that the explanation of Rashi's teacher in DH d'Dachik Lah is in agreement with the first Lashon). 
</p><p>
Since Rashi in the first Lashon explains that the Gemara <i>does</i> consider the possibility that the Halachah of Tzeroros of Keren is more stringent than the Halachah of Tzeroros of Regel, he cannot explain that the Gemara here concludes that Tzeroros of Keren has <i>no</i> unique Chumros (such as being liable in Reshus ha'Rabim). Therefore, Rashi explains that the question of the Gemara applies where the animal did <i>not</i> kick. Rather, the question is simply whether for Tzeroros 'k'Orchaihu' -- Tzeroros of Regel -- one is exempt in Reshus ha'Rabim like normal Regel, or whether one is liable in Reshus ha'Rabim because the Halachah l'Moshe mi'Sinai, which teaches that one pays Chatzi Nezek for Tzeroros, attempts to make Tzeroros similar to Keren, and therefore it might also make it similar to Keren with regard to the Chumra of Keren as well (i.e. the obligation to pay for damage done in Reshus ha'Rabim). 
</p><p>
How does Rashi understand the Gemara earlier (3b) which concludes that one is exempt for Tzeroros in Reshus ha'Rabim? <b>TALMIDEI RABEINU PERETZ</b> explain that the Gemara there was written after the Gemara here reached its conclusion that Tzeroros of Regel is a Toldah of Regel and one is therefore exempt for Tzeroros of Regel in Reshus ha'Rabim. This is also the explanation of <b>RABEINU YESHAYAH</b>, the <b>RASHBA</b>, and the <b>TALMID HA'RASHBA V'HA'ROSH</b> here.
</p><p>
It is according to this explanation that Rashi adds what he writes in the Sugya here about the obligation to pay Chatzi Nezek for Tzeroros like the obligation to pay Chatzi Nezek for Keren, and about 'k'Orchaihu,' since the question of the Gemara concerns a case of normal Tzeroros, Tzeroros of Regel.
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yochanan taught that there is no 
          distinction in half-damage between Reshus ha'Rabim and 
          Reshus ha'Yachid!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This means, (he is liable even if) it 
               strewed up in a Reshus ha'Rabim, and damaged in the 
               Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1 (R. Zeira):</font></b> No, it strewed up in a Reshus 
          ha'Rabim, and damaged in a Reshus ha'Yachid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yirmiyah:</font></b> But you said that also that is 
               exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Zeira:</font></b> I retracted.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2 (R. Zeira):</font></b> R. Yochanan discussed only Keren.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DAMAGE THROUGH WAGGING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Yehudah Nesi'ah or R. Oshiya):</font></b> If an 
          animal damaged by wagging its tail, what is the law?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (the other of R. Yehudah and R. Oshiya):</font></b> You 
          can't expect a man to hold his animal's tail as he walks! 
          (He is exempt.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> You can't expect a man to hold his animal's 
          horns as he walks, yet he is liable for Keren!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> That is different. Keren is abnormal, but 
          wagging its tail is normal!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> If it is normal, clearly it is like Regel 
          (and exempt in a Reshus ha'Rabim)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> He asked about excessive wagging.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Eina):</font></b> If it damaged by wagging the Ever 
          (male organ), what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is just like goring. Its evil inclination 
               overcame it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, it is unlike goring, in which it intends to 
               damage. Here, it does not intend to damage!
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	This question is unresolved.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>MOVING OBSTACLES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Chickens are Mu'ad to walk normally and 
          break... (if something was tied to its leg, or if it was 
          dancing and broke Kelim, it pays half-damage).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> This is only if it became tied by itself. 
          If a man tied it, he pays full damage.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If it became tied by itself, who pays?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The owner of the tied item pays.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the item was hidden away, he is blameless!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If it was not hidden away, he was 
                    negligent! (He should pay full damage, like for 
                    a pit.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, the owner of the chicken pays.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Surely, he doesn't pay full damage because it 
          says 'when a man will open a pit', not when an ox will 
          open a pit (create an obstacle);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If so, he should be totally exempt!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, the Mishnah (that obligates half-
          damage) discusses a chicken that damaged by throwing the 
          attached item (Tzeroros). Rav Huna's law was not taught 
          regarding our Mishnah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> If a Hefker item became attached to a 
               chicken and damaged, the chicken's owner is exempt;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is only if it became tied by itself. If a 
                    man tied it, the man pays full damage.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> For which (Av or Toldah) damager is he 
          liable?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Huna bar Mano'ach):</font></b> This is a pit that is 
          pushed around by people and animals.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>SHEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Shen is Mu'ad to eat what is appropriate for 
          it;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	An animal is Mu'ad to eat fruit and vegetables. If it 
          ate clothing or Kelim, it pays half-damage.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	This is in the victim's premises. In Reshus ha'Rabim, 
          it is exempt;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If it benefited, it pays the benefit.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is when it ate from Rechavah (a public area 
               or square). If it ate from the side of the Rechavah, 
               it pays the damage (Rashi - according to the damage, 
               but it only pays half-damage, like Keren. Most 
               explain that it pays full damage.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it ate from the entrance to a store, it pays 
               what it benefited;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it ate from inside the store, it pays (Rashi - 
                    half) the damage.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> Shen is Mu'ad to eat what is 
          fitting for it;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	If it entered the victim's premises and ate fitting 
          food and drink, it pays full damage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Similarly, if a Chayah entered the victim's 
               premises and killed an animal and ate meat, it pays 
               full damage.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If a cow ate barley, a donkey ate fodder, a dog lapped 
          up oil, or a pig that ate a piece of meat, it pays full 
          damage (even though these are not their normal foods).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> Since we say that anything not normally 
          eaten, but is eaten in pressed circumstances, is 
          considered eating, if a cat ate dates, or a donkey ate 
          fish, it pays full damage.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	A case occurred in which a donkey ate bread and chewed 
          the basket. Rav Yehudah obligated the owner to pay full 
          damage for the bread and half-damage for the basket.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Since it is normal for a donkey to eat bread, 
          it is also normal to chew the basket at the time!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> After eating the bread, it chewed the basket.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Is it really normal for a donkey to eat 
          bread?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Beraisa):</font></b> If it ate bread, meat or 
               a cooked dish it pays half-damage.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> This refers to a Behemah (which 
               includes a donkey).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #1:</font></b> No, it refers to a Chayah.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> It is normal for a Chayah to eat meat!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The meat was roasted.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The Beraisa discusses a deer (it does not 
          normally eat meat).
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer #2 (to Question (l)):</font></b> The Beraisa discusses a 
          Behemah. It ate on a table.
<br>

sjt:
<p>
<font><b>3) 'KISHKESHAH B'AMASAH'</b></font><b>
<br>QUESTION:</b> Rav Ina asks what the Halachah is in a case in which the animal caused damage by an act of 'Kishkeshah b'Amasah.' Is this act like Keren, because Keren is damage done when the animal is overtaken by its urges, and the animal in this case is also overtaken by its urges, or is it not like Keren, because the urge of Keren is to do damage, but here the animal's urge is not to do damage? The Gemara leaves this question unanswered ('Teiku').
</p><p>
What is Rav Ina's question in the first place? The Chachamim should simply ascertain whether or not this act is a normal thing for an animal to do! The rule is that damage caused by any act which is unusual is considered Keren, and damage caused by any act which is the normal way for an animal to behave is not considered Keren. Although the Gemara here (and on 2b) mentions that Keren is defined by 'Kavanaso l'Hazik' (it has intention to damage), it is clear from many Gemaras that even if the animal has other intentions (such as hunger) that drive it to do what it does, even if it is clear that the animal does not intend to do damage the damage done in an unusual way is still considered Keren. This is evident from the Gemara earlier (15b) which says that a dog that eats a sheep is considered a Shinuy (and an act of Keren), because dogs usually do not attack animals larger than themselves. The Gemara says that it is considered Keren even though the dog <i>ate</i> the sheep and was clearly interested in eating and not just in causing damage. Similarly, the Gemara (16b) teaches that a lion which is 'Toref v'Ochel' (it first kills its prey and then immediately eats it) is considered a Shinuy, and even though the lion was eating what it killed its damage is considered Keren. Also, the Gemara (18b) teaches that if a chicken inserts its head into a glass vessel, crows, and thereby causes the vessel to break, it is a Shinuy and is considered Keren, even though the animal certainly did not intend to break the glass by making a loud noise. Clearly, the defining characteristic of Keren is that it is an act that is unusual for the animal to do.
</p><p>
Conversely, an act that is normal for the animal to do is <i>not</i> considered Keren <i>even</i> when the animal has intention to do damage. For example, Tosfos (16a, DH veha'Nachash) explains that although a snake does not benefit from killing what it bites and it bites only to kill and cause damage, nevertheless since it is the normal manner of a snake to bite it is considered Regel and not Keren (and the owner is exempt from paying for such damage in Reshus ha'Rabim).
</p><p>
Therefore, when an animal is 'Kishkeshah b'Amasah,' the Chachamim should simply ascertain whether it is the normal manner of an animal to act in that way or not. Why should there be a question of whether it has intention to do damage? Why should that make a difference? (<b>RISHONIM</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ROSH</b> explains that the question of the Gemara is whether such an act is the normal manner ('Orchei') or not. This means that it is not a frequent occurrence for the animal's urges to overtake it in such a way, and in that sense it is an unusual act. On the other hand, when an act is infrequent, the infrequency should demonstrate that the act is not something that the animal does as part of its normal mode of conduct (such as walking), and it is not something the animal does for its own benefit and pleasure (such as eating). Therefore, if it does something infrequently, it shows that it does it in order to cause damage. In the case of the Gemara's question, the infrequency of the act cannot show that the animal intends to do damage because the animal's urges have overtaken it; the infrequency does not demonstrate that the animal's intent in doing the act is to do damage. Since the animal does not want to do damage, the fact that the animal is sometimes overtaken by its urge should give it the status of 'Orchei,' its normal manner and a common occurrence, even though the frequency at which it performs such acts is low. Anything that an animal does by a natural process should be considered 'Orchei,' the normal manner of an animal to act, despite its infrequency. Hence, the Gemara is asking: Is the act considered infrequent (and unusual) because of the amount of times that it occurs, or is it considered frequent (and normal) because a natural process causes the animal to act in such a way?
</p><p>
In the case of the snake, the snake damages frequently and it is clear that it is a natural process that causes it to act in such a way (bite), and therefore it certainly is considered Regel. In the case of the dog that eats a larger animal, even though the dog benefits from the act it is an unusual occurrence and perhaps not a natural process. In such a case there are grounds to say that the dog acts in such a way because it wants to cause damage more than it wants to eat. In the case of 'Kishkeshah b'Amasah,' however, where the animal cannot be doing the act because it wants to do damage, the Gemara asks whether it is considered Keren or not.
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> cites <b>RABEINU YESHAYAH</b> and <b>TALMIDEI RABEINU PERETZ</b> who explain that it <i>is</i> 'Orchei,' the normal manner, for an animal to be 'Mekashkeshes b'Amasah,' and nevertheless it could be considered Keren and be liable in Reshus ha'Rabim, based on the precedent of Keren <i>Mu'ad</i> which is 'Orchei' and nevertheless is liable in Reshus ha'Rabim, unlike Shen and Regel. The reason this act would not be considered Regel is that the animal does it only when its urges overtake it, and it does not do the act on its own accord.
</p><p>
According to this approach, it is unclear why the Gemara does not apply to this case its earlier teaching that a person is not obligated to guard his animal from doing anything that an animal normally does ('is the owner of the ox obligated to hold on to its tail [so that it does not wag it while walking]?'), and he is permitted to walk his animal through the public marketplace. In other words, the other people in the marketplace are expected to be careful and keep away from his animal in such a way that it not cause damage through the way it normally acts (such as through walking and eating). This is the reason why one is exempt for Shen and Regel in Reshus ha'Rabim -- the people are all 'Mevater' to each other; people allow each other to walk their animals there and will take care by themselves not to let the other's animal do damage to them, since they expect and are cautious of the animal's normal way of acting.
</p><p>
Why, then, should 'Kishkeshah b'Amasah' be different? If it is something normal and expected, the other people should be careful and be 'Mevater' to each other, and one should be able to walk his animal through Reshus ha'Rabim without having to worry about his animal doing damage through this act.
</p><p>
Perhaps these Rishonim mean that not every animal has such a strong Yetzer ha'Ra that it is prone to be 'Mekashkeshes b'Amasah.' Only certain animals have such strong urges. In this sense, the animal is like a Keren Mu'ad -- people do not protect themselves from a Keren Mu'ad that is walking in the marketplace because they do not know -- and cannot be expected to know -- that this animal is a Mu'ad. If the owner, however, knows that his animal is a Mu'ad, the owner must watch his animal and keep it from doing damage.
</p><p>
In this case, too, people are not supposed to expect that someone's animal will be 'Mekashkeshes b'Amasah,' and that is why it is like an animal that is a Keren which the owner must watch. On the other hand, although the owner has seen that his animal has a strong Yetzer, that is no reason to suspect that the animal will do damage in this way, since it is such an unusual type of damage. Although the owner knows that the animal has a strong Yetzer ha'Ra and is prone to be 'Mekashkeshes b'Amasah,' nevertheless perhaps he is exempt in Reshus ha'Rabim since no one expects an animal to do damage in such a way. Therefore, the owner does not have to be responsible for this act any more than the other people in Reshus ha'Rabim have to be responsible for this act. It is considered the type of normal act that is similar to Shen and Regel, where each person in the marketplace watches out for himself, and the owner of the animal is not required to keep his animal from doing damage. 
</p><p>
(c) The <b>NETZIV</b> suggests as follows. The uncommon act of a normal case of Keren is uncommon in two ways. First, it is uncommon that an animal should have an urge to do damage. Second, even if it does have an urge to do damage, it is uncommon that it actually does damage. In the case of 'Kishkeshah b'Amasah,' although it is not common for an animal to have such a strong urge to be 'Mekashkeshes b'Amasah' in the first place, nevertheless when it does have such an urge it is overtaken entirely by its Yetzer and therefore it becomes <i>common</i> that it will do damage, as it does not pay attention at all to what it is doing.
</p><p>
That is the question of the Gemara. Is the owner's liability based on the thing that <i>caused</i> the animal to do damage, which is the Yetzer ha'Ra which is not common and not 'Orchei' (and thus the owner is not liable), or is the owner's liability based on the destructive act itself, the act of 'Kishkush,' and once the animal is already being 'Mekashkeshes' it <i>is</i> common and 'Orchei' for the animal to do damage?
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>FOOD FIT FOR ANIMALS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A case occurred in which a goat saw food on the mouth 
          of a barrel, climbed up, ate the food and broke the 
          barrel. Rava obligated full damage for both.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Since it is normal to eat the food, it is normal to 
          climb (and break the barrel).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Ilfa):</font></b> If an animal in Reshus ha'Rabim extended its 
          neck and ate from a load on another animal, it is liable.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The back of another animal is like the victim's 
          premises.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Support (for Ilfa - Beraisa):</font></b> If a box was hanging in 
          back of an animal, and another animal stretched its neck 
          and ate from it, it is liable.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection (like Rava said elsewhere):</font></b> The case is, it 
          jumped to eat (this is Keren, it pays half-damage even in 
          a Reshus ha'Rabim).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(R. Oshiya):</font></b> If an animal walked and ate in a Reshus 
          ha'Rabim, it is exempt. If it stopped and ate, it is 
          liable.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Both of these are normal!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> (Rava): The case (of standing) is, it jumped to 
          eat (this is Keren).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> If the food was rolling, what is 
          the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rashi) Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> An animal was rolling food from a Reshus 
               ha'Yachid to a Reshus ha'Rabim (or vice-versa. Does 
               the law depend on where it ate, or from where it 
               took the food?)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> We may learn from R. Chiya:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya):</font></b> There was food in a sack. Part of the 
               food was outside the sack. If an animal eats the 
               food inside (this is like the victim's domain), it 
               is liable. If it eats it outside (the Reshus 
               ha'Rabim), it is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> The animal pushed the food inside or 
               took it out.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> No. R. Chiya obligates for what it eats 
          inside, and exempts for what it eats outside.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> R. Chiya discusses long stalks of fodder 
          that stick out of the bag (while the animal eats, the 
          food is pulled to where its mouth is. Surely, this 
          depends on where the animal is.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #2 (Tosfos) Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Food was rolling from the victim's domain 
               towards the Reshus ha'Rabim. (The animal ate it as 
               it was about to enter the Reshus ha'Rabim. Do we 
               consider the food as if it were in the Reshus 
               ha'Rabim?)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> We may learn from R. Chiya.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya):</font></b> There was food in a sack. Part of the 
               food was outside the sack. If an animal eats the 
               food inside, it is liable. If it eats it outside, it 
               is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> The food would have fallen out by 
               itself.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> No. R. Chiya obligates for what would 
          have stayed inside, and exempts for what would have 
          fallen out.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> No, R. Chiya discusses long stalks of 
          fodder that stretch outside the sack (that would not have 
          fallen out. One might have thought that it depends on 
          where the majority of each stalk is.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ABNORMAL BEHAVIOR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If it ate clothing...(in a Reshus ha'Rabim, 
          it is exempt).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> To which case does this apply?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav and Reish Lakish (below)):</font></b> It applies to 
          all cases.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> If one party does something abnormal, and 
               another party acts abnormally and damages the first, 
               the second party is exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel and R. Yochanan):</font></b> The exemption is 
          for fruits and vegetables, but not for clothing and 
          Kelim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Reish Lakish is consistent with what he said elsewhere.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> If a cow was crouching in a 
               Reshus ha'Rabim, and another cow was walking, and it 
               kicked the crouching cow, it is exempt (for the 
               latter acted abnormally first);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the crouching cow kicked the walking cow, it 
               is liable.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Suggestion:</font></b> R. Yochanan argues with this teaching of 
          Reish Lakish.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, he agrees regarding cows (for it is 
          abnormal to crouch);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He argues about clothing, for it is common to 
               leave clothing in a Reshus ha'Rabim while resting.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If it benefited, it pays the benefit.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> How much is this?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> It is the price of hay (that the 
          animal would have eaten instead).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> It is the price of barley, when it is 
          cheap (two thirds of the usual price).
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	One Beraisa supports Rabah, and one supports Rava.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon):</font></b> It pays only the price of 
               hay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If it benefited, it pays the benefit.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it ate one or two Kavim (of barley), it does 
                    not pay the full price. Rather, we evaluate how 
                    much one would spend to feed his animal 
                    something better than usual.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Therefore, if it ate wheat, or anything 
                    else bad for it, he is exempt.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>BENEFITING WITHOUT CAUSING A LOSS TO ANOTHER PERSON</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Chisda):</font></b> Reuven lived in Shimon's yard 
          without Shimon's knowledge, must he pay rent?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the yard is not normally rented, and Reuven 
                    does not normally rent a place (he has where to 
                    stay for free), Reuven didn't benefit, and 
                    Shimon didn't lose (surely, Reuven is exempt)!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If the yard is normally rented, and Reuven 
                    normally rents a place, Reuven benefited and  
                    Shimon lost (obviously, Reuven must pay)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The yard is not normally rented, and 
               Reuven normally rents a place.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Can Reuven claim 'you didn't lose due to me!'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Or, can Shimon say 'you benefited (and must 
                    pay me)!'
<br>
<br>

sjt:
<font><b>1) AN ANIMAL THAT JUMPS TO GET FOOD</b></font><b>
<br>QUESTION:</b> Ilfa states that if an animal in Reshus ha'Rabim stretches its neck and eats food from a bundle on top of another animal, the owner is obligated for payment of 'Shen' because it is like his animal did damage in the Reshus of the Nizak. The Gemara attempts to prove this from the Beraisa which states that if an animal stretched its neck and ate from a basket suspended from a person's shoulder in Reshus ha'Rabim, the owner of the animal is liable. The Gemara refutes the proof by suggesting that the only reason the animal is liable in such a case is that it jumped (Kofetzes). The Gemara cites a statement of Rava who explains a ruling of Rebbi Oshiya in this manner as well. Rebbi Oshiya rules that if an animal walks and eats the food of someone else in Reshus ha'Rabim the owner is exempt, but if it stands and eats the owner is liable. Rava explains that there should be no difference between eating while walking and eating while standing, since both acts involve damage done in the course of the normal way an animal behaves. Rather, explains Rava, when Rebbi Oshiya says that the owner is liable when the animal stands and eats, he must mean that the owner is liable when the animal <i>jumps</i> and eats.
</p><p>
If an animal jumps (Kofetzes) and eats in Reshus ha'Rabim, is the owner obligated to pay Nezek Shalem (like Shen) or Chatzi Nezek (like Keren)? 
</p><p>
The Gemara implies that for any act done in Reshus ha'Rabim that is a normal way of eating, one is exempt altogether, since it falls in the category of Shen. This implies that the reason why the owner is liable when the animal jumps is that it is not a normal act, and thus it is in the category of Keren and the owner must pay Chatzi Nezek. 
</p><p>
The Gemara's implication is consistent with the Tosefta (1:4) which describes an animal that eats from a bundle hanging over a person's shoulder as a case of a Shinuy, or Keren. However, the Gemara earlier teaches that if a goat climbs up to the top of a barrel and eats the turnip that is there, the goat's owner must pay Nezek Shalem for damage done to the barrel in addition to the payment for the turnip, since it is considered the normal manner for an animal to ruin a barrel in order to get to the food that rests on top of it. Accordingly, it also should be considered normal for an animal to jump in order to get to the food that is on top of another animal's back. The Tosefta indeed concludes that when the animal eats from a basket hanging over a person's shoulder, the owner of the animal pays for 'what it damaged' ('Mah she'Hizikah'), a term usually reserved to describe the damages of Shen and Regel in Reshus ha'Nizak (for which one pays Nezek Shalem, as the Mishnah says on 19b). If 'Kofetzes' is in the category of Shen, why should one be liable in Reshus ha'Rabim altogether, if we do not accept Ilfa's teaching that eating off of the back of another animal is considered eating in Reshus ha'Nizak? Also, why does the Tosefta refer to it as a Shinuy?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH b'Kofetzes) and <b>TOSFOS</b> (21b, DH d'Ilfa) explain that the case of Kofetzes indeed is a Shinuy, an unusual way of causing damage, and the owner of the animal pays only Chatzi Nezek. According to Rashi, the Tosefta which says that the owner is obligated to pay 'Mah she'Hizikah' means that the owner pays not the amount that was damaged (i.e. the amount of benefit that the animal received), but <i>according to</i> the amount that was damaged. This means that if the animal which jumped was a Tam, the owner pays <i>half</i> of the amount of the damage, and if it was a Mu'ad he pays the full amount. (Rashi on 19b explains the words 'Mah she'Hizikah' in the Mishnah in a similar manner.)
</p><p>
Tosfos (21a, DH uv'Mechazeres) disagrees with Rashi and maintains that 'Mah she'Hizikah' means Nezek Shalem. Perhaps Tosfos learns that the Tosefta refers to an animal that was a Mu'ad, or that it rules like Rebbi Tarfon and refers to an animal that damaged in the Chatzer of the Nizak. (See <b>MITZPEH SHMUEL</b> on the Tosefta, #80.)
</p><p>
Why is the case of Kofetzes different from the case of the goat that climbed up the barrel? It is different either because an animal will climb in order to reach food but it will not normally <i>jump</i> to reach food (<b>TORAS CHAIM</b>), or because only a <i>goat</i> does such acrobatics in order to obtain food, but not other animals (<b>PNEI YEHOSHUA</b>). (Tosfos' words there are more consistent with the approach of the Toras Chaim.)
</p><p>
(b) The <b>RAMBAN</b> (in Milchamos) and the <b>RASHBA</b> prove from the Tosefta, which obligates the owner to pay 'Mah she'Hizikah,' and from the Gemara's case of the goat that climbed the barrel, that Kofetzes is a case of Shen and the owner must pay Nezek Shalem. The Rashba explains that the reason why one is liable for Kofetzes even though one is exempt in a case of an animal that stretches out its neck and eats from the back of another animal is that Kofetzes refers to when the animal jumps onto the back of the other animal (or a person) and eats from there; since the animal is entirely supported by the animal or person carrying the food, it certainly is considered to be in the Reshus of the Nizak. (The Ramban in Milchamos implies that even if the animal that is eating does not land on the other animal's back, but it eats while in flight, it is still considered to be damaging in Reshus ha'Nizak since its feet are not resting in Reshus ha'Rabim.)
</p><p>
(c) The <b>ROSH</b> (2:4) explains that the Halachah of Ilfa revolves around the question of whether or not one is permitted to keep his food in a sack on the shoulders of an animal or person in Reshus ha'Rabim, or whether he is supposed to keep his food away from such places. Perhaps since it is known that animals walking in Reshus ha'Rabim have access to those places, people absolve each other from any responsibility for damages caused to food in such places. (See Rosh 1:1, and Insights to 14:1.)
</p><p>
Even if the Halachah does not follow Ilfa's ruling and it exempts a person for damages when his animal eats the food on top of another animal, the owner still will be obligated when his animal jumps and eats food which is resting on a high ledge. Although jumping in this manner is not considered a Shinuy and it remains an act of Shen (and is not an act of Keren) as the Rashba says, nevertheless people do not forgive each other the damages caused to food resting on a high ledge (or on the top of a tall animal) since it is not expected for animals in Reshus ha'Rabim to get to food in such places. This also seems to be the interpretation of <b>RABEINU CHANANEL</b>. 
</p><p>
(According to the Rosh, even if the high ledge is in Reshus ha'Rabim and is not private property, the owner of the animal is still liable for damages of Shen as if the ledge were part of the Reshus ha'Nizak. The reason for this is that when one person uses a particular part of Reshus ha'Rabim, no other person has permission to use that part of Reshus ha'Rabim at that moment, as the Rashba here explains. See also Insights to 14:1.) 
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rami bar Chama):</font></b> A Mishnah settles that 
          question!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> Which Mishnah settles it?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rami bar Chama asked Rav Chisda to serve him 
               before answering. Rav Chisda folded Rami bar Chama's 
               turban.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rami bar Chama:</font></b> 'If it benefits, it pays the 
               benefit.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rava:</font></b> One whom Hash-m helps is saved from 
               ailments and ! The answer is not proper, yet Rav 
               Chisda accepted it!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In our Mishnah, the damager benefits, and the 
                    owner of the food loses. Rav Chisda asked about 
                    when Reuven benefits and Shimon does not lose!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Rami bar Chama assumes that one who left 
                    Peros in a Reshus ha'Rabim was Mafkir them (so 
                    also he does not lose).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Mishnah):</font></b> If Reuven's property surrounds 
          Shimon's property on three sides, and Reuven built a wall 
          between them (Rashi; Tosfos - on the outer border of his 
          own property) on one side, then the second, then the 
          third - Shimon need not share the cost;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Inference):</font></b> If he surrounded him on all four 
               sides, Shimon would need to share the cost!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Conclusion:</font></b> When Shimon benefits from Reuven, he 
               must pay, even if Reuven does not lose (Reuven 
               needed to build on all sides anyway)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> There, Reuven loses. Reuven needed to build 
          only because Shimon is in the middle! (Rashi; Tosfos - 
          Reuven's outer perimeter is larger, and he needed to 
          build more because Shimon's property is in the middle).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #3 (Beraisa - R. Yosi):</font></b> If Shimon built a wall 
          himself enclosing his fourth side, he must share the 
          expense of the first three walls.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Inference):</font></b> This is only because Shimon did this 
               himself. Had Reuven done it, Shimon would be exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Conclusion:</font></b> When Shimon benefits from Reuven, and 
               Reuven does not lose, Shimon is exempt!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> Shimon does not benefit. He can say that he 
          does not need strong walls, and cheap thorns would have 
          sufficed.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #4 (Mishnah):</font></b> If a two-story house fell, and 
          Shimon (who owns the upper story) wants to rebuild it but 
          Reuven (who owns the ground floor) refuses, Shimon may 
          build it and live there. Reuven may not live there until 
          he pays Shimon's expenses.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Inference):</font></b> Reuven does not deduct the benefit 
               Shimon had from living there in the meantime, even 
               though Shimon benefited.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Conclusion:</font></b> When Shimon benefits from Reuven, and 
               Reuven does not lose, Shimon is exempt!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection:</font></b> There is different, for the owner of the 
          ground floor is obligated to provide a basis for the 
          upper story.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #5 (Seifa - R. Yehudah):</font></b> Even in this case, one 
          who lives in another's yard without his knowledge must 
          pay rent.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> When Shimon benefits from Reuven, and 
               Reuven does not lose, Shimon must pay!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection:</font></b> There, Reuven loses. One who lives in a new 
          house blackens the walls.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE FINAL RULING ON THE ABOVE QUESTION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #6 (Bei R. Ami):</font></b> Since Reuven caused no loss to 
          Shimon, surely he is exempt!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Chiya bar Aba was repeatedly asked; he never 
               reached a conclusion.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #7 (Rav Kahana citing R. Yochanan):</font></b> He need not 
          pay rent.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #8 (R. Avahu citing R. Yochanan):</font></b> He must pay 
          rent.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rav Papa:</font></b> R. Avahu did not hear that explicitly, he 
          inferred it from something R. Yochanan said.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven (the treasurer of Hekdesh) 
               took a rock or beam of Hekdesh. he did not 
               transgress Me'ilah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he gave it to someone else, Reuven 
               transgressed Me'ilah;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If Reuven (kept it and) used it to build his 
               house, he does not transgress Me'ilah until he gets 
               a Perutah's worth of benefit from it by living in 
               the house.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Shmuel):</font></b> It was not fixed into the house. 
               Rather, it was placed on top of an opening in the 
               ceiling.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R. Avahu said in front of R. Yochanan:</font></b> We learn 
               from Shmuel that when Shimon benefits from Reuven, 
               and Reuven does not lose, Shimon must pay! R. 
               Yochanan was silent.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> R. Avahu assumed that his silence indicated 
               agreement. Really, R. Yochanan paid no attention, 
               for he holds like Rabah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rabah):</font></b> Matters of Hekdesh without awareness are 
                    like a commoner's dealings with awareness 
                    (since Hash-m is aware. Therefore, benefit 
                    without the owner's awareness does not apply).
<br>

sjt:
<p>
<font><b>2) BUILDING A FENCE AROUND A NEIGHBOR'S PROPERTY</b></font><b>
<br>QUESTIONS:</b> In order to prove whether or not one must pay for the benefits he gains in a case of 'Zeh Neheneh v'Zeh Lo Chaser,' the Gemara quotes a Mishnah (Bava Basra 4b) in which Rebbi Yosi and the Chachamim argue with regard to a landowner (Reuven) who owns the fields surrounding the property of another landowner (Shimon) and who builds a fence around his fields. The Chachamim rule that if Reuven builds a fence around three sides of his property where his property borders with Shimon's property in the center, and he ends up enclosing three sides of Shimon's property, Shimon does not have to pay Reuven for any part of the cost of the fences. This implies that if Reuven builds fences around his property so that it <i>entirely</i> encloses Shimon's property (such as when Shimon's property is totally surrounded by Reuven's), Shimon <i>should</i> have to pay Reuven even though Reuven does not lose anything because of Shimon (since Reuven would have had to build the fence around his property in any case). Rebbi Yosi argues and says only when Shimon builds the fence on the fourth side (thus completing the enclosure around his property) must he pay Reuven for part of the cost of all the other fences that Reuven built on the other sides. If Reuven built all four fences, Shimon does not have to pay him anything.
</p><p>
The Gemara proves from the Chachamim's ruling that one is Chayav in a case of 'Zeh Neheneh v'Zeh Lo Chaser' (that is, the beneficiary must pay for the benefit he receives when the benefactor loses nothing). The Gemara then rejects the proof by saying that in this case Reuven indeed loses something (and it is a case of 'Zeh Neheneh v'Zeh <i>Chaser</i>'), since he can claim that Shimon caused him to build a larger fence than he would have needed to build had Shimon not been there.
</p><p>
The Gemara then proves from Rebbi Yosi's ruling that one is <i>exempt</i> in a case of 'Zeh Neheneh v'Zeh Lo Chaser.' The Gemara rejects the proof by saying that the reason why Rebbi Yosi exempts Shimon from sharing the costs of the fence is that Shimon may claim that a strong wall provides him with nothing more than he could have gained with a very inexpensive fence made of thorns.
</p><p>
<b>RASHI</b> (DH Ha Revi'is, and DH Ha Makif) explains that the Chachamim's ruling was stated in a case in which Reuven builds a fence around three sides of Shimon's field, and Reuven owns land around <i>only</i> those three sides. When the Gemara infers that if Reuven builds <i>four</i> walls around Shimon, Shimon must pay Reuven for part of the cost, the Gemara refers to a case in which Reuven bought the property along the fourth side of Shimon's field and then built a fence there, completely enclosing Shimon's field. In such a case, Shimon is obligated to pay part of the cost of the enclosure.
</p><p>
Why does Rashi not explain even in the case in which Reuven builds <i>three</i> fences around Shimon's field that Reuven <i>owns</i> the field on the fourth side but chose not to enclose it with a fence? Perhaps Rashi bases his explanation on an inference from the wording of the Mishnah in Bava Basra which says 'ha'Makif Chaveiro <i>mi'Shalosh</i> Ruchosav,' implying that Reuven owns land around Shimon's field only on three sides and not on the fourth. However, now the question may be asked on the Mishnah there: Why does the Mishnah explain that Reuven's fields surrounded Shimon's only on three sides and not on the fourth?
</p><p>
(b) Rashi (DH mi'Shalosh Ruchosav, and DH Ha Revi'is) explains that the fences on the three or four sides were built on the inner side of Reuven's fields where they border on Shimon's property. Besides these fences, there was another set of external walls around Reuven's fields which separated Reuven's property from the neighbors' property on the side opposite from Shimon.
</p><p>
If Reuven already has external walls around all of his fields that surround Shimon's property, what does Shimon gain by the internal fence? He is already protected from all sides from Reuven's external wall! Moreover, why did Reuven build those internal fences in the first place if he is already protected from outside infiltrators? If he built the fence in order to separate between his fields and Shimon's field, it is obvious that Shimon should share the cost of the fences if he benefits from them; since Reuven clearly built the extra fences only because of the presence of Shimon's field, Shimon's presence clearly <i>did</i> cause Reuven a loss (as the Gemara concludes, Reuven may claim that Shimon's presence caused him to build a longer fence). Why, then, does the Gemara initially suggest that this is a case of 'Zeh Neheneh v'Zeh Lo Chaser,' if Reuven <i>does</i> lose as a result of Shimon? (<b>TOSFOS</b> DH At Garamt; see <b>NACHALAS DAVID</b> to Bava Basra 4a.)
</p><p>
Tosfos and other Rishonim indeed disagree with Rashi and explain that the Gemara is discussing only the external fences of Reuven's fields (and there are no internal fences).
</p><p>
(c) If Rashi chooses to explain that the fences under discussion separate between Reuven's fields and Shimon's field, why does he mention at all that there is a separate set of external fences which separate between Reuven's fields and his other neighbors? Perhaps there is only one set of fences -- the set about which Rebbi Yosi and the Chachamim argue!
</p><p>
<b>ANSWERS:</b>
<br>(a) The reason why the Mishnah in Bava Basra explains that Reuven does not own the field on the fourth side of Shimon's land in the case where he builds three walls is that if Reuven owns the fourth side as well, then even <i>he</i> does not benefit from the fences he builds around Shimon's field, since there is still a breach on the fourth side. Accordingly, it is obvious that Shimon would not have to share in Reuven's expenses, since Reuven's fence-building was purposeless. The only situation in which Shimon might be obligated to share the expenses is where Reuven benefits from the fences by his fields being completely enclosed -- which is the case when Reuven owns only the property bordering three sides of Shimon's field and not the property on the fourth side. (The diagram printed in the Vilna Shas is incorrect. The two edges of Reuven's field in the south should also be enclosed by the fence and not left open.) The Mishnah teaches that Shimon nevertheless does not have to contribute to the costs of the fence since Shimon himself is not fully enclosed by it.
</p><p>
(b) Rashi maintains that as long as the person who derives benefit does no action to take something from the person who is Chaser but merely indirectly causes an expense to the other person, it is not called a case of 'Zeh Neheneh v'Zeh Chaser.' For example, in the case of the person who occupies someone else's vacant house without the owner's consent, where the owner otherwise would have rented out his house for money, the occupant is causing the owner a loss through his action of moving into and living in the house. In the case of the outer fields surrounding the inner field, although Reuven builds a fence between his fields and Shimon's field only to prevent Shimon from entering his field or to mark the borders of his fields, the Gemara initially assumes that this is not considered a loss to Reuven since Shimon is not doing any action. (Indeed, he even might have owned his field <i>before</i> Reuven purchased the surrounding fields. Even if Shimon purchased his field afterwards, his purchase or presence does not constitute an act of causing a loss to Reuven.) 
</p><p>
Moreover, Shimon can claim that Reuven did not build the fence because of a fear that he would steal from Reuven, but because Reuven wanted to make the border of his field clear to any potential purchasers. Hence, Shimon is not involved in causing any expense to Reuven.
</p><p>
This explains how Reuven and Shimon both can benefit from the inner fence while, nevertheless, it is considered 'Zeh Neheneh v'Zeh <i>Lo</i> Chaser.'
</p><p>
The Gemara concludes that it is considered 'Zeh Neheneh v'Zeh Chaser' since Reuven built the fence <i>only</i> because of Shimon's presence, even though Shimon did not do any action to cause Reuven's loss, and even though Reuven built the fence only to delineate the boundary of his field (and not out of fear that Shimon would trespass).
</p><p>
(c) Rashi may have inferred that there were external fences around Reuven's property from the wording of the Gemara which refers to the inner fences as 'extra fences.' These words imply that there already exists some fence that Reuven had to build without Shimon, and the inner fences were built in addition to that fence. (See Tosfos, DH At Garamt.)
</p><p>
The question now, however, is why does the <i>Gemara</i> assume that Reuven built external fences besides the inner ones? The answer might be that if Reuven had built only inner fences, it would be obvious that Shimon cannot exempt himself from sharing the expenses because of 'Zeh Neheneh v'Zeh Lo Chaser.' Reuven would certainly be considered to be losing something due to Shimon, since Reuven's actions showed that he found it necessary to build the fence there only because of Shimon's presence, but on all other sides of his fields he did not find it necessary to build a fence (as pointed out above in the answer to the second question). Therefore, the Gemara -- which tries to prove from the Chachamim's ruling that one is Chayav in a case of 'Zeh Neheneh v'Zeh Lo Chaser' -- must have understood that Reuven built fences around the external boundaries of his property as well as along the border with Shimon's property. 
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MUST ONE PAY FOR BENEFIT DERIVED FROM ANOTHER'S PROPERTY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Aba bar Zavda):</font></b> If Levi lived in Yehudah's 
          yard without Yehudah's knowledge, must he pay him rent?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rabah bar Rav Huna, citing Rav):</font></b> No; and one 
          who rents a house from Reuven must pay to Shimon.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> How is Shimon involved?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, if one rented a house from Reuven, 
          and it was found to be Shimon's, he pays rent to Shimon.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> This contradicts his answer to the question!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> If it is not normally, he is exempt. If it is 
          normally rented, he must pay.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Chiya bar Avin):</font></b> If Levi lived in Yehudah's yard 
          without Yehudah's knowledge, he need not pay. If one 
          rents a house from people of the city, he pays rent to 
          the owner.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What owner does he discuss?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Correction:</font></b> If it is found to have an owner, he pays 
          rent to the owner.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> This contradicts the first law he said!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> He must pay only if it was normally rented.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Sechorah):</font></b> If Levi lived in Yehudah's yard without 
          Yehudah's knowledge, he need not pay. We learn from 
          'She'iyah (desolation) breaks the gates.' (It benefits 
          Yehudah if someone is there!)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Mar bar Rav Ashi:</font></b> I saw it. It gored like an ox. 
               (Rashi - She'iyah is a Shed. Ramah, in Nimukei Yosef 
               - it is mold, and it damaged like a goring ox.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> A settled house will last.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference is between Rav 
          Sechorah's teaching and Rav Yosef's?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> If Yehudah was storing wood or straw in the 
          house, according to Rav Sechorah, the house would have 
          lasted anyway, so Levi must pay. According to Rav Yosef, 
          Levi gave benefit to Yehudah, so he is exempt.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	A man built a house on a dumpsite of orphans. Rav 
          Nachman forced him to pay rent for the time he lived in 
          the house.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Inference:</font></b> He holds that one who lives in Reuven's yard 
          without Reuven's knowledge must pay Reuven.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Originally, other people were living 
          there and paying a modest rent to the orphans.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Nachman told the man to appease the orphans. 
               He didn't, so Rav Nachman collected the house from 
               him (until he gave the orphans a proper price for a 
               ruin on which to build a house - Rosh).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>STRETCHING FROM RESHUS HA'RABIM TO EAT FROM RESHUS HA'YACHID</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 (Mishnah):</font></b> It pays for the benefit...(if it 
          ate from the side of the Rechavah, it pays the damage 
          (Rashi - half-damage)).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav):</font></b> The case is, it stretched its neck to eat from 
          the side of the Rechavah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Even that case it is exempt (it pays only for 
          the benefit).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> According to Shmuel, when does the 
               Mishnah obligate paying the damage?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It is when the animal left the Rechavah 
               and went to the side.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #2 (Rav):</font></b> If an animal stretched its neck to 
          eat from the side of the Rechavah, it pays full damage;
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> It is exempt. (In this version, Rav and 
          Shmuel did not come to explain the Mishnah.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> According to Shmuel, when does the 
               Mishnah say that Shen pays the damage?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It is when the animal left the Rechavah 
               and went to the side. 
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Nachman bar Yitzchak - Mishnah):</font></b> If it 
          ate from the entrance to a store, it pays what it 
          benefited.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Isn't the case when it stretched its 
               neck!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Nachman bar Yitzchak):</font></b> No. The case is, the 
          store is on a corner (of the alley; the animal can eat 
          without stretching its neck).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #3 (Rav and Shmuel):</font></b> If an animal stretched its 
          neck to eat food from the side of the Rechavah, it pays 
          the damage.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav):</font></b> If one allowed people to walk on his property 
          adjacent to the Rechavah, and an animal ate there, the 
          owner is exempt.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Here also, he pays the damage.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Suggestion:</font></b> They argue about a pit (obstacle) on 
          private property (that one was Mafkir).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav says that one is liable for such a pit. 
               Therefore, (food or anything else he leaves there 
               that could damage is Hefker, so) one who eats from 
               there is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shmuel exempts for such a pit, so (his food is 
               not Hefker, so) one who eats from there must pay.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> Perhaps Rav normally exempts for such a 
          pit. Here is different, for his food was too close to the 
          Reshus ha'Rabim.
<br>
<br>

sjt:
<font><b>1) THE CASE OF 'MECHAZERES'</b></font><b>
<br>QUESTION:</b> The Gemara discusses the case of 'Mechazeres,' an animal that walks in Reshus ha'Rabim and turns its head and eats from food placed in Tzidei Reshus ha'Rabim or in someone's private field adjacent to Reshus ha'Rabim. According to the Gemara's first version, Rav and Shmuel disagree about the Halachah in this case. Rav maintains that the owner is liable even though the animal is standing in Reshus ha'Rabim. Shmuel maintains that the owner is exempt since the animal is in Reshus ha'Rabim. Rav and Shmuel agree that the owner is liable for damages that his animal causes when the animal leaves the center of the street in Reshus ha'Rabim and entirely enters the Tzidei Reshus ha'Rabim. 
</p><p>
According to the Gemara's second explanation, Rav and Shmuel agree that the owner is liable for 'Mechazeres.' They disagree about the law in the case of an animal that ate food placed in a part of someone's property which he designated for public use.
</p><p>
1. Why should one be liable for damages caused by his animal that turns its head and eats food in the Tzidei Reshus ha'Rabim? One is liable for Shen only when the damage is done in the Reshus of the Nizak, the private property of the victim. Tzidei Reshus ha'Rabim is not the private property of the Nizak.
</p><p>
<b>RASHI</b> on the Mishnah (19b, DH mi'Tzidei) explains that the owner is obligated because of Keren. However, if this is a case of Keren, why is this case included in the Mishnah which discusses Shen, and why does the Mishnah rule that the owner pays 'Mah she'Hizikah,' which implies that he pays Nezek Shalem? Also, why do Rav and Shmuel agree that if the entire animal is standing in Tzidei Reshus ha'Rabim the owner is liable? Why should this be considered Keren? 
</p><p>
2. On the other hand, if the damage of 'Mechazeres' is considered Shen, why should the owner be liable when the damage is not done in the Reshus ha'Nizak? Moreover, why should 'Mechazeres' be different from the case of an animal that eats food from atop another animal in Reshus ha'Rabim, in which case one is liable according to Ilfa (20a)? Why does Shmuel here say that one is exempt? (The Gemara on 21b says that Shmuel may agree with Ilfa's ruling.)
</p><p>
3. Finally, what is the difference between the case of 'Mechazeres' and the case of 'Misgalgel' (20a)? Rebbi Zeira inquires about the Halachah in a case of an animal standing in Reshus ha'Rabim that rolls a bundle of grain from a Reshus ha'Yachid into Reshus ha'Rabim. Is the owner liable because the animal rolled the food from Reshus ha'Yachid, or is he exempt because it ate the food in Reshus ha'Rabim? According to Shmuel who says that 'Mechazeres' is exempt, even if one takes into account where the animal was standing (i.e. Reshus ha'Rabim) at the time it removed the food from Reshus ha'Yachid, the owner still should be exempt since only the animal's head was in Reshus ha'Yachid, and that is a case of 'Mechazeres' according to Shmuel! (<b>GILYON</b> in Shitah Mekubetzes)
</p><p>
<b>ANSWERS:</b> Rashi seems to contradict himself with regard to which Av Mazik is involved in the act of 'Mechazeres.' In the Mishnah (19b), Rashi explains that when the animal eats from Tzidei Reshus ha'Rabim, it is an act of Keren. This implies that he understands 'Mechazeres' to be a form of Keren, and that it is not the normal way that an animal acts. However, Rashi (21a, DH Kuli Alma Lo Pligi) explains that those who rule that one is liable for 'Mechazeres' explain that the animal should not have turned its head to the side (because the area to the side is not a public area). Since Rashi writes that the animal 'should not' have turned its head rather than 'it is unusual' for the animal to turn its head, he implies that 'Mechazeres' is not Chayav because of Keren but because of Shen.
</p><p>
<b>TOSFOS</b> and <b>TOSFOS RABEINU PERETZ</b> provide the answer to the apparent contradiction. They explain that Rashi wrote two different explanations for this Sugya. In his first explanation (Mahadura Kama), Rashi explained (both in the Mishnah and on 21a) that one is liable for 'Mechazeres' because it is a form of Keren. This initial explanation of Rashi is preserved in the words of Rashi on the Rif and in the words of <b>RABEINU YEHONASAN MI'LUNIL</b> (21a). Rashi later changed his mind and decided that 'Mechazeres' is a case of <i>Shen</i>, and he modified his commentary (on 21a) accordingly. (There are a number of instances in Bava Kama where parts of Rashi's Mahadura Kama and Mahadura Basra appear together in the text of Rashi; see Insights to 18:1.)
</p><p>
Accordingly, there are two ways to learn the Sugya of Mechazeres, as follows:
</p><p>
(a) According to Rashi's first Lashon, 'Mechazeres' is a form of Keren, because it is unusual for an animal walking through Reshus ha'Rabim to put its head into an adjacent Reshus ha'Yachid. It seems from Tosfos (DH uv'Mechazeres) and other Rishonim that according to this explanation of Rashi, even when the entire animal enters Tzidei Reshus ha'Rabim the owner is still liable because of Keren and not because of Shen. Just as it is unusual for an animal to put its head into an area adjacent to Reshus ha'Rabim, it is even more unusual for an animal to leave Reshus ha'Rabim entirely. Therefore, Shmuel agrees that when the animal stands entirely in Reshus ha'Rabim and eats there, the owner is liable because of Keren. (The <b>ROSH</b>, however, as cited by the Shitah Mekubetzes, gives a different explanation for Rashi's words in the case of an animal that enters Tzidei Reshus ha'Rabim.)
</p><p>
Similarly, according to the Gemara's second version of the dispute between Rav and Shmuel, according to which they argue about a person who designates part of his property for the use of the public, the dispute revolves around whether it is considered unusual for an animal to enter such an area that is adjacent to Reshus ha'Rabim (and is, therefore, Keren), or whether it is not unusual (and is, therefore, Shen).
</p><p>
According to this approach, it is clear why one is liable for 'Mechazeres' in Tzidei Reshus ha'Rabim even though the damage was not done in the personal property of the Nizak (because one is liable for Keren and not Shen). It is also clear that the discussion of the Gemara here is unrelated to the question of Ilfa (regarding an animal that stretched its neck and ate off of the back of another animal) and is also unrelated to the question of 'Misgalgel,' since the Gemara is discussing obligations of Keren and not of Shen.
</p><p>
Why, though, does the Mishnah discuss obligations of Keren in the midst of the Halachos of Shen? The answer is that it discusses Keren for the same reason that it discusses the Halachah of an animal that eats Kesus or Kelim; the Mishnah limits the applications of the Chiyuv of Shen. When the Mishnah says that one must pay 'Mah she'Hizikah' with regard to an animal that eats from Tzidei Reshus ha'Rabim, it does not mean that the owner pays in full but that he pays <i>in proportion</i> to the full damage (i.e. either Chatzi Nezek or Nezek Shalem), and not just what it benefited (see Insights to 20:1). 
</p><p>
(b) The other Rishonim, as well as Rashi himself in his Mahadura Basra, chose to explain that one is liable for 'Mechazeres' because of Shen and thus pays Nezek Shalem. Why, though, should one be liable for 'Mechazeres' if the animal eats an object in Tzidei Reshus ha'Rabim? The animal is standing in Reshus ha'Rabim!
</p><p>
They explain that Rav and Shmuel argue about whether the exemption from paying for damages of Shen in Reshus ha'Rabim depends on where the animal is standing or where the food that it eats is resting. Rav maintains that as long as the food is in a Reshus ha'Yachid the owner of the animal is liable. Shmuel maintains that since the owner of land adjacent to Reshus ha'Rabim realizes that animals will be walking near his property and can easily reach over and eat food that is on the edge of his field, he should not keep his food there. Since people do not want to limit the use of Reshus ha'Rabim they forgo claims for any damages to objects that are either in Reshus ha'Rabim or that are in parts of Reshus ha'Yachid that are adjacent to Reshus ha'Rabim (see Rosh 1:1). (Rav does not accept this reasoning because he maintains that people who walk their animals in Reshus ha'Rabim <i>are</i> responsible for preventing their animals from putting their heads into fields that are adjacent to Reshus ha'Rabim.) Even Shmuel agrees that the owner is liable if the animal entirely enters the Reshus of the Nizak, or Tzidei Reshus ha'Rabim, because that is the normal case of Shen in Reshus ha'Nizak.
</p><p>
If the Chiyuv of 'Mechazeres' is because of Shen, why is the owner of the animal liable when his animal eats from Tzidei Reshus ha'Rabim? At most, it should be like an animal that eats from Chatzer ha'Shutafin, in which case some Amora'im maintain that he is exempt (see 14a).
</p><p>
Tosfos here explains that the Tzidei Reshus ha'Rabim in front of every house that borders Reshus ha'Rabim is used exclusively by the owner of that particular house.
</p><p>
Tosfos Rabeinu Peretz explains that when one person places fruit in a particular part of Tzidei Reshus ha'Rabim, it becomes prohibited for any other person to bring his animal or food there. Therefore, that area is like the Reshus ha'Yachid of the Nizak as long as his food is there. (See <b>NIMUKEI YOSEF</b> as quoted in Insights to 14a.)
</p><p>
Why is this case different from Ilfa's case of an animal that reaches up and eats from the back of another animal in Reshus ha'Rabim? It is different because in the case of 'Mechazeres' the animal ate food on the same level as the food in Reshus ha'Rabim. Since people expect such damages to occur more frequently, a case of 'Mechazeres' might be more lenient than the case of an animal that eats from the back of another animal. On the other hand, the case of 'Mechazeres' might be more stringent than the case of an animal that eats from atop another animal in Reshus ha'Rabim because in the case of 'Mechazeres' the animal leaves the main walkway of Reshus ha'Rabim and eats from the side. 
</p><p>
How is the argument between Rav and Shmuel, according to the Gemara's first version, different from the question of 'Misgalgel' (20a)? There, Rashi explains that the question of 'Misgalgel' is as follows: An animal standing in Reshus ha'Rabim takes an item from Reshus ha'Nizak and eats it in Reshus ha'Rabim. Is the owner's liability determined by where the item was taken from, is it determined by where the animal ate the item? From the Gemara's question it seems clear that even if the animal is standing in Reshus ha'Rabim and puts its head into Reshus ha'Yachid to take an object from there, it is considered as though the animal took the object from Reshus ha'Nizak since its head was in Reshus ha'Nizak when it removed the object. The animal is not considered to have taken an object from Reshus ha'Rabim merely because its feet are in Reshus ha'Rabim at the time. This seems to contradict Shmuel who says that one is exempt for 'Mechazeres' because the damage follows where the place where the animal's head is.
</p><p>
The <b>GILYON</b> cited by the Shitah Mekubetzes answers that Rebbi Zeira, who questions what the Halachah would be in a case of 'Misgalgel,' follows like the Gemara's second version of the Machlokes between Rav and Shmuel. According to that version, even Shmuel agrees that what matters is where the head of the animal is and not where the feet are.
</p><p>
Alternatively, the question of 'Misgalgel' does not involve an animal that puts its head into Reshus ha'Yachid and removes an object from there, but rather it involves an animal that entirely enters Reshus ha'Yachid and takes an item out to eat in Reshus ha'Rabim.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Perhaps Shmuel normally obligates for 
          such a pit, for animals (which may walk there) do not see 
          it. Animals see food, so he is not liable for this.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue about stretching to eat.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir and R. Yehudah):</font></b> If an animal 
               ate from the Rechavah, it pays what it benefited. If 
               it ate from the side of the Rechavah, it pays the 
               damage;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi and R. Elazar say, it is not normal to 
               eat, only to walk.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> The first Tana'im agree (that one is 
               liable for the side of the Rechavah)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> They argue about stretching to eat. The 
               first Tana'im obligate paying only the benefit, and 
               the latter Tana'im obligate paying the damage.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> No. All agree about stretching (like Rav 
          or Shmuel). They argue about 'it will consume in 
          another's field';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first Tana'im expound 'in another's field', 
               but not in the Reshus ha'Rabim;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The latter Tana'im expound 'in another's field', 
               but not in the damager's domain;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Surely he is exempt in the damager's 
               domain. He had no right to bring his food in!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Rather, they (agree about stretching to 
          eat from the side of the Rechavah, but) argue about Ilfa 
          and R. Oshiya (20a, stretching to eat from another 
          animal's load, and jumping).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DAMAGE CAUSED BY JUMPING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a dog or kid jumped from the roof and 
          broke Kelim, it pays full damage, because it is Mu'ad.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If a dog took a cake (with a coal inside) to a pile of 
          grain, and ate the cake and burned the grain, it pays 
          full damage for the cake and half-damage for the grain.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Inference):</font></b> It is liable only because it 
          jumped. Had it fallen, it would be exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Tana holds that one who was negligent at the 
               beginning and Ones (blameless) at the end, he is 
               exempt!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> If a dog or kid jumped from the roof 
          and broke Kelim, it pays full damage. If it fell, it is 
          exempt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> This is like the opinion that one who was 
          negligent at the beginning and Ones at the end, he is 
          exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that he is liable, how can 
               we explain the Mishnah?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Kelim are close to the wall, so if the dog 
          or kid jumps, it will not break them. Therefore, it was 
          not negligent to allow them on the roof. (R. Peretz - we 
          obligate for jumping and breaking Kelim far away. 
          Regarding Kelim nearby, this is considered Ones. Rashba - 
          'negligent at the beginning' applies only to total 
          negligence. Here, it is not utter negligence, for usually 
          they will not break Kelim by jumping, but it is not 
          called unusual to exempt from full damage.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Zvid):</font></b> Sometimes it is liable even for falling 
          (according to both opinions), e.g. if the Ma'akah (a wall 
          around a roof so people will not fall) is weak.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Surely, this obligates the owner because he 
          should have realized that the Ma'akah might break;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It didn't break. Only the beginning was 
               negligence, the end was Ones! (How can we explain 
               according to the opinion that exempts for this?)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The Ma'akah is Tzar (narrow; alternatively, 
          sloped. In either case, animals are prone to jump on it 
          and fall off.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa #1):</font></b> If a dog or kid jumped up (and damaged), 
          it is exempt. If it jumped down, it is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> People and chickens are liable for jumping up or 
               down.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #1 - Contradiction (Beraisa #2):</font></b> A dog or kid 
          is exempt for jumping up or down.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> They acted abnormally. The dog 
          jumped, and the kid dug its hooves in the wall.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why are they exempt (this is Keren)!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> They are exempt from full damage, but pay half-
          damage. (Also in Beraisa #1, for jumping up they are 
          exempt from full damage, but pay half damage.)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Version #2 (Rif, Rambam) Contradiction (Beraisa #2):</font></b> A 
          dog or kid is liable for jumping up or down.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> In Beraisa #1, they acted 
          abnormally. The dog jumped, and the kid dug its hooves 
          into the wall.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why are they exempt (this is Keren)!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> They are exempt from full damage, but pay half-
          damage.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHY ONE PAYS FOR DAMAGE CAUSED BY FIRE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a dog took (a cake with a coal... and 
          burned the grain...) 
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> One is liable for fire like for an arrow 
          that he shot.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> He is liable because it is his 
          property.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't Reish Lakish say like R. Yochanan?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> One gives impetus to arrows, but not to fire.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't R. Yochanan say like Reish Lakish?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Property has substance, but fire has no 
          substance.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a dog took... it pays half-damage for the 
          grain.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	This is like the opinion that he is liable like for 
          arrows. This is the dog's arrow.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> According to the opinion that it is his 
          property, the coal is not the property of the dog's 
          owner!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the dog threw the coal. It pays 
          full damage for the cake, half-damage for where the coal 
          was thrown (this is pebbles; some explain, it is Keren, 
          for this is unusual), and it is exempt for the rest of 
          the grain.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan explains that the dog placed the coal 
               down. It pays full damage for the cake (Shen) and 
               for where the coal was placed (fire), and half-
               damage for the rest (pebbles).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If a camel laden with flax was 
          walking in a Reshus ha'Rabim, and the flax entered a 
          store, caught fire from the store-owner's lamp, and 
          burned the building, the camel's owner is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the storeowner left his lamp outside, he is 
               liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, if it was lit for the Mitzvah of 
               Ner Chanukah, he is exempt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is like the opinion that one is liable for 
               fire like for arrows. This is the camel's arrow.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> According to the opinion that it is his property, 
               the lamp is not the property of the camel's owner!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the camel brushed the burning flax 
          against the entire building. (The argument about why one 
          is liable for fire refers to damage due to spreading of 
          the fire.)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Reisha):</font></b> If the storeowner left his lamp 
          outside, he is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>If the camel brushed the burning flax against the 
               entire building, why is the storeowner liable?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> The load of flax was so big that the camel 
          rubbed the burning flax against the entire building while 
          standing still.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> All the more so, the camel's owner should be 
          liable (for not leading his camel away)!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer (Rav Huna bar Mano'ach):</font></b> The camel stopped to 
          urinate;
<br>
<br>

sjt:
<font><b>1) THE FIRE LIT BY THE DOG </b></font><b>
<br>QUESTION:</b> The Gemara attempts to prove the view of Rebbi Yochanan, who says 'Esho Mishum Chitzav,' from the Mishnah (21b). The Mishnah states that when a dog takes a Chararah, a cake baked on coals, with a coal and carries it to someone's Gadish (pile of grain) and ignites the Gadish with the coal, the owner of the dog must pay Nezek Shalem for the damage done to the Chararah, and he must pay Chatzi Nezek for the Gadish. According to Rebbi Yochanan, the reason why he must pay Chatzi Nezek is clear: the Esh spread by a dog is like a stone kicked by a dog (Tzeroros), since a fire that spreads as a result of someone's actions is considered 'Kocho.' Therefore, the owner pays Chatzi Nezek for the Gadish because of the Halachah that for damages of Tzeroros one pays Chatzi Nezek.
</p><p>
However, according to Reish Lakish who says 'Esho Mishum Mamono,' the owner should not have to pay anything for the Gadish since the fire was not the property (Mamon) of the owner of the dog. Reish Lakish answers that the owner of the dog indeed is exempt from damages caused to most of the Gadish; he must pay only for the damage done to the place at which the dog placed the coal since that is considered damage caused directly by his animal. (This form of damage is included in the category of Regel. The dog which takes the coal and puts it down it in a place where it causes damage is similar to an animal that walks through Reshus ha'Rabim and kicks an object to a place where it causes damage; see 6a.) 
</p><p>
Why does the owner of the dog pay Chatzi Nezek for the damage done to the place where the coal was placed? Reish Lakish explains 'd'Adyei Aduyei' -- the dog tossed the coal onto the pile of grain.
</p><p>
The simple meaning of his statement is that the owner pays only Chatzi Nezek because the coal is like Tzeroros, since it was tossed by the dog onto the Gadish and it was not placed there by the dog directly. This is how <b>RASHI</b> first explains (DH Meshalem Chatzi Nezek), and the way the <b>RA'AVAD</b>, <b>TOSFOS RABEINU PERETZ</b>, and others explain. However, Rashi adds a 'Lishna Acharina' in which he explains the Gemara differently: when the dog tossed the coal, it was considered an unusual way to cause damage. Hence, the reason why the owner pays Chatzi Nezek is that the damage was an act of <i>Keren</i>.
</p><p>
What does Rashi gain with this 'Lishna Acharina'? If the dog tossed the coal, then whether it tossed it in a usual manner or in an unusual manner the owner must pay Chatzi Nezek because of the law of Tzeroros. Why does Rashi add that he also must pay Chatzi Nezek because it is an act of Keren (i.e. Tzeroros of Keren) and not Regel? (<b>SHITAH MEKUBETZES</b> in the name of <b>TALMIDEI HA'RAV REBBI YISRAEL</b>)
</p><p>
<b>ANSWER:</b> The <b>TALMIDEI HA'RAV REBBI YISRAEL</b> suggest that Rashi writes this additional explanation because of the Beraisa cited earlier (18a) which teaches that the Chatzi Nezek of the Mishnah is paid 'mi'Gufo.' If the owner of the dog pays Chatzi Nezek because of Tzeroros, then the Mishnah is proof that Chatzi Nezek of Tzeroros is paid mi'Gufo. Furthermore, if the obligation in this case is because of Tzeroros, why does Rebbi Elazar argue with the Tana of the Mishnah and rule that the owner pays Nezek <i>Shalem</i> mi'Gufo? For these reasons, why Rashi suggests that the damage was done through Tzeroros of <i>Keren</i>, and for Tzeroros of Keren one certainly pays mi'Gufo since even for damages of normal Keren one pays mi'Gufo. This is the way the Gemara earlier (18b) explains the Mishnah according to Rava. 
</p><p>
However, ha'Rav Rebbi Yisrael questions this explanation. Why does the Gemara need to explain that the dog <i>tossed</i> the coal onto the Gadish? If the Gemara, according to Rashi, wants to avoid proving that Tzeroros is paid mi'Gufo, it should explain that the dog <i>placed</i> the coal on the Gadish in an unusual manner, such that no damage of Tzeroros is involved. The reason the owner pays Chatzi Nezek is because of Keren, and not because of Tzeroros! Ha'Rav Rebbi Yisrael leaves this question unanswered. 
</p><p>
Perhaps an answer may be gleaned from the words of <b>RABEINU CHANANEL</b> who defines 'd'Adyei Aduyei' differently. He explains that the Gemara means that the dog did <i>not</i> lift the coal off of the ground, but rather shoved it ('Medadeh') along the ground to the Gadish in an unusual way. (Rabeinu Chananel may have read the Gemara as 'Dadyei Deduyei' instead of 'd'Adyei Aduyei.')
</p><p>
According to this explanation, the Gemara indeed means that the dog placed the coal on the Gadish in an unusual way which did not involve Tzeroros, just as ha'Rav Rebbi Yisrael suggests, and this explains the reason for Rashi's 'Lishna Acharina.'
<br> 
<br>(b) The Gemara (18b) offers another explanation for the Mishnah. It says that the Mishnah refers to a case of an act of Tzeroros that was repeated three times, and that is why Rebbi Elazar rules that one pays Nezek Shalem. However, half of that Nezek Shalem is paid mi'Gufo because of the 'Tzad Tamus' that remains. Rashi there offers two ways to understand this answer: either the Mishnah is discussing Tzeroros of Keren, or it is discussing Tzeroros of Regel. (See Insights there.)
</p><p>
Accordingly, both explanations of Rashi here might relate to <i>this</i> explanation of the Gemara (on 18b), and Rashi's two Leshonos here correspond to the two Leshonos that he offers there (18b) with regard to whether the case is one of Tzeroros of Keren or Tzeroros of Regel.
</p><p>
According to this answer, ha'Rav Rebbi Yisrael's question no longer applies. The Gemara <i>does</i> need to explain that the damage was done in a manner of Tzeroros in order to show why Rebbi Elazar -- who argues with the Tana of the Mishnah -- requires the owner to pay Nezek Shalem. (M. Kornfeld)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the flax entered the shop and caught fire, the 
               camel's owner was at fault for overloading the 
               camel;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the lamp was outside, the storeowner was at 
               fault.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>EXEMPTIONS FROM DAMAGE CAUSED BY FIRE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven lit a stack of grain and there was 
          a goat tied to it and a slave nearby, and they burned, 
          Reuven is liable;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If there was a slave tied to it and a goat nearby, and 
          they burned, he is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> This is like the opinion that one is liable 
          for fire like for arrows (he does not pay money, because 
          he is Chayav Misah (worthy to die) for killing the 
          slave);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that one is liable for 
               fire like for his property, why is he exempt?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This should be like when his ox gores a slave 
               (Rashi - he must pay 30 Shekalim for the slave; 
               Tosfos - he must pay for other damage done at the 
               same time)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he directly burned the slave. 
          Because he is Chayav Misah for killing the slave, he does 
          not pay.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, obviously he is exempt!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Chidush is, even thought the goat and slave 
          belong to different people, he is exempt for both. 
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If Reuven sent a flame with 
          (Shimon,) a deaf-mute, lunatic or child, Beis Din cannot 
          force Reuven to pay, but he is liable b'Yedei Shamayim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like the opinion that fire is liable like 
               for arrows. Reuven need not pay for Shimon's arrows.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to the opinion that it is his property, 
               he should be liable, just like if he asked Shimon to 
               guard his ox (and the ox damaged)!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Reish Lakish):</font></b> Reuven is exempt only if he gave 
          to Shimon a coal, and Shimon blew on it (and it flared 
          up);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he gave a flame, Reuven is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is because it is a clear damager.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yochanan exempts Reuven even if he gave a 
               flame. Shimon caused the damage by the way he held 
               the flame.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Reuven is liable only for gross negligence, i.e. 
                    he gave dry wood, (small) kindling wood and a 
                    (lit) lamp.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rava):</font></b> A verse and a Beraisa support R. Yochanan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'When fire will go out' connotes by itself. 'The 
               one who burned will pay' (he is called one who 
               burned).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> The Torah first mentioned money that 
               damages, and concludes with one who damages. This 
               teaches that fire is liable because it is like his 
               arrows.
<br>

sjt:
<p>
<font><b>2) ONE WHO IGNITES AN 'EVED' TOGETHER WITH A PILE OF GRAIN</b></font><b>
<br>QUESTION:</b> The Gemara quotes the Mishnah later (61b) which teaches that when a person ignites a Gadish in which a bound Eved lies and the fire kills the Eved, he is exempt from paying for the damages to the Gadish or to any animals inside of it, because he is Chayav Misah, and the law is that 'Kam Lei bid'Rabah Minei' -- one who is Chayav Misah is exempt from Tashlumin, monetary payments. The Gemara explains that according to Rebbi Yochanan, he is Chayav Misah for lighting the fire that killed the Eved because 'Esho Mishum Chitzav,' and lighting a fire is comparable to shooting an arrow. According to Reish Lakish, who maintains that 'Esho Mishum Mamono,' the Mishnah must be referring to a person who set fire directly to the body of the Eved and then the fire spread through the Gadish, because if he set fire to the nearby Gadish which then spread to the Eved he would not be Chayav Misah for killing the Eved. 
</p><p>
It is clear from a number of sources that the law of 'Kam Lei' applies only when the Chiyuv Misah and Chiyuv Mamon come simultaneously (see Kesuvos 30b). Why, then, should the rule of 'Kam Lei' apply here? According to Rebbi Yochanan, the Gadish was burned <i>before</i> the Eved was killed, while according to Reish Lakish, the Gadish was burned <i>after</i> the Eved was killed! According to both views, the Gadish and Eved were not burned at the same time. Why, then, does 'Kam Lei bid'Rabah Minei' apply to exempt the person from payment? (<b>RASHBA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TALMID HA'RASHBA V'HA'ROSH</b> cites the Gemara in Kesuvos (31a) which teaches that when a person throws an arrow four Amos in Reshus ha'Rabim on Shabbos, and the arrow tears someone's shirt in its flight, the person who threw the arrow is Chayav Misah (for desecrating Shabbos) and is exempt from paying for the shirt. The Gemara explains that although the Chiyuv Misah comes only at the time that the arrow comes to rest, and the shirt was torn before that moment, it is considered as though the two Chiyuvim occur at the same time. This is because from the moment that the arrow left his hand it cannot be retracted, and it is already clear at that moment that damage will be done to the shirt and that Shabbos will be desecrated.
</p><p>
The same answer may be applied here. After the fire in the Gadish was lit, it inevitably will spread to the Eved, or if it was lit first on the Eved, it will inevitably spread to the Gadish, and it cannot be retracted. Therefore, the principle of 'Kam Lei bid'Rabah Minei' applies.
</p><p>
The logic for why all of the effects that occur after the throwing of the arrow or the lighting of the fire is done are considered to occur simultaneously, according to <b>RASHI</b> in Kesuvos (31a, DH Lo Matzi), is that from the moment that the arrow was thrown it is considered as if the person did all of the actions that will eventually come about because of his act of throwing (see Insights there).
</p><p>
The <b>NIMUKEI YOSEF</b> here (10a of the pages of the Rif) explains this in greater detail. He asks a general question on Rebbi Yochanan's opinion: If -- because of 'Esho Mishum Chitzav' -- a person who lights a fire is considered to have done everything that the fire subsequently accomplishes until it is extinguished, then when a person lights candles before Shabbos and the candles burn through the beginning of Shabbos it should be considered as though the person lit a fire <i>on Shabbos</i>, since the person is considered to have lit the fire at every moment at which the fire burns! The Nimukei Yosef answers that according to Rebbi Yochanan, everything that the fire eventually does was caused at the <i>moment</i> at which the fire was <i>initially</i> lit. Therefore, the act of causing the fire to burn on Shabbos was completed before Shabbos, even though the actual burning took place later on Shabbos. 
</p><p>
The Nimukei Yosef cites proof for this from the Halachah that if a person lit a fire and died before the fire caused damage, his heirs are obligated to pay for any damage that the fire causes. If one is liable for the damages of a fire only because he is considered as though he lights the fire at every moment that it burns, he should not be liable since he is dead. It must be that the Chiyuv for any damage that will occur in the future takes effect at the moment the fire is lit.
</p><p>
According to the Nimukei Yosef, it is clear why the person who lights the fire that kills the Eved and burns the Gadish is considered as though he burns the Eved and Gadish simultaneously. Every effect of the fire is considered to have been caused by the one who lit the fire at the moment that he lit it, and therefore both Chiyuvim occur simultaneously at that moment. 
</p><p>
The Gemara in Kesuvos, however, presents another explanation for why 'Kam Lei bid'Rabah Minei' applies to one who throws an arrow on Shabbos that tears someone's clothing. The Gemara suggests that it is impossible to perform an act of Hanachah to cause the Chiyuv Misah for throwing the arrow without first performing an act of Akirah. Accordingly, the Chiyuv Misah is considered to begin from the time of the Akirah, and the tearing of the shirt takes place simultaneously with the event that causes the Chiyuv Misah. This explanation certainly does not apply to the case of the Gemara here, since it certainly is possible to burn an Eved without burning the Gadish and vice versa.
</p><p>
It should be possible to prove from the Mishnah quoted by the Gemara that the first explanation in Kesuvos is correct and not the second. How is the Gemara to be understood according to the second explanation? 
</p><p>
Moreover, the only source cited by the Gemara in Kesuvos for the Halachah that 'Kam Lei bid'Rabah Minei' applies to throwing an arrow on Shabbos is a Beraisa of Rebbi Avin. Why does the Gemara there not cite as a source the Mishnah (61b) which the Gemara here cites?
</p><p>
Perhaps the Talmid ha'Rashba v'ha'Rosh understands that the Gemara's second explanation in Kesuvos agrees with the logic of the first explanation. The Gemara merely intends to add, according to the second explanation, that even if it is possible to retract an action that was started (for example, walking with a knife through four Amos of Reshus ha'Rabim and tearing someone's clothing while walking; see the Gemara there), nevertheless 'Kam Lei bid'Rabah Minei' applies if the action of the Chiyuv Misah involves an Akirah and a Hanachah, since the Akirah is an integral part of the Aveirah. (This is not true according to some Rishonim there, who explain that even the first explanation would apply only in a case which involves an Akirah and a Hanachah; see Ramban in Insights there.)
</p><p>
The reason why the Gemara cites the Beraisa of Rebbi Avin and not the Mishnah (61b) is because Rebbi Avin states the Halachah more clearly. 
</p><p>
(b) The <b>RASHBA</b> explains that the Gemara here is unrelated to the Gemara in Kesuvos. He says that perhaps the reason why 'Kam Lei' applies in the case of the Gemara here is that the person who lit the fire is considered a 'Rodef' from the moment he lights the fire, since the fire he lit is causing someone's death. The Halachah is that one is permitted to kill a Rodef. The Gemara in Bava Kama (117b) teaches that because of this law, a Rodef who damages objects while running after someone to kill him is exempt because of 'Kam Lei.' The one who lit the fire is not exempt from paying because of the Chiyuv Misah that applies to him for his act of actually killing the Eved, but rather because of the Chiyuv Misah that applies to him for his act of <i>attempting</i> to kill the Eved, even before the Eved actually dies.
</p><p>
The <b><b><b>OR</b></b> SAME'ACH</b> (Hilchos Rotze'ach) asks a strong question on the Rashba's explanation. The reason why one is permitted to kill a Rodef is in order to prevent him from taking someone else's life. In the case of the Gemara here, killing the one who lit the fire is not going to help to save the Eved. In order to save the Eved, one must stop the fire from burning! Why should one be permitted to kill the one who lit the fire because he is a Rodef? 
</p><p>
If one may kill the person who lit the fire so that he will not stop anyone from extinguishing the fire, then even according to Reish Lakish, who says 'Esho Mishum Mamono,' one should be permitted to kill the person who lit the fire (in order to be able to extinguish the fire and save the Eved). What difference does it make if 'Esho Mishum Mamono' or 'Mishum Chitzav'? The one who lights the fire should be exempt from paying for the Gadish even according to Reish Lakish because of the Halachah of Rodef!
</p><p>

The answer to this question may be that according to the Rashba, the reason why one is permitted to kill a Rodef is <i>not</i> that the death of the Rodef will save the person he is pursuing, but that the verses in the Torah which discuss 'Ba ba'Machteres' (Shemos 22:1) teach that when a person is a Rodef the Torah permits one to kill him. That is, the Torah permits one to kill a Rodef simply because he is a Rodef and not because of an attempt to save the intended victim. Therefore, according to Rebbi Yochanan who says 'Esho Mishum Chitzav,' the one who lit the fire is considered a Rodef and therefore he may be killed even if doing so will not save the Eved's life. However, according to Reish Lakish who says 'Esho Mishum Mamono,' a person who lights a fire in the Gadish where the Eved is bound is not considered a Rodef since the <i>fire</i> is what is pursuing the Eved, and not the person who lit the fire. (Reish Lakish maintains that the fire is not considered a direct result of the actions of the one who lit it; it is viewed as a separate entity apart from him, like his animal.) Therefore, according to Reish Lakish the person who lit the fire cannot be killed, and 'Kam Lei bid'Rabah Minei' should not apply. (See also <b>AVI EZRI</b>, beginning of Hilchos Rotze'ach, and <b>ACHIEZER</b>, Even ha'Ezer 18-19.) 
</p><p>


<font><b>3) TO WHOM DOES A KILLER 'OWE' A 'CHIYUV MISAH'</b></font><b>
<br>QUESTION:</b> According to Reish Lakish, the Mishnah which discusses one who ignites an Eved, Gadish, and goat, teaches that 'Kam Lei bid'Rabah Minei' applies even when the goat that was burned did not belong to the owner of the Eved who was burned. That is, although the Chiyuv Misah is for one person and the money he is exempt from paying was owed to another person, 'Kam Lei' still applies.
</p><p>
Why does the Gemara need to explain that the goat did not belong to the owner of the Eved? The Chiyuv Misah for killing the Eved is not something 'owed' to the owner of the Eved, but it is something that is 'owed' to the Eved who was killed! As long as the goat does not belong to the <i>Eved</i>, 'Kam Lei' applies when the Chiyuv Misah and Tashlumin are in response to acts done to two different people. (<b>TOSFOS</b>, end of DH b'Gedi)
</p><p>
<b>TOSFOS</b> adds that it is clear that the Chiyuv Misah for killing the Eved is not 'owed' to the master from the fact that if the master kills his own Eved he is still Chayav Misah. When he merely damages his Eved, however, he is exempt from payment (Bava Kama 87a) because <i>he</i> is the one who receives payment for any damages done to the Eved. If, when he kills the Eved, he is Chayav Misah, then obviously he is not the one who owns the Eved's life with regard to the Chiyuv Misah for killing the Eved.
</p><p>
<b>ANSWER:</b> Perhaps the Chiyuv Misah for killing the Eved indeed is something 'owed' to the master of the Eved. The Torah implies that when a person is executed for committing murder, his death in some way is 'compensation' for the other's life that he killed. Just as the Torah says that a person pays damages for knocking out someone's eye as compensation for the eye, 'Ayin Tachas Ayin' (Shemos 21:24), so, too, it says that a person who kills someone pays 'Nefesh Tachas Nafesh' -- 'a life for a life' (Shemos 21:23). (See <b>KUNTRESEI SHI'URIM</b>, Shi'ur 21.) Just as the payment for the damage done to the eye must be paid to the owner of the Eved, the Chiyuv Misah for killing the Eved is also 'paid' to the owner of the Eved.
</p><p>
Regarding Tosfos' question, why is the Eved's owner Chayav Misah when he kills his own Eved, perhaps the Gemara maintains that the Chiyuv Misah is not <i>only</i> 'owed' to the master, but <i>also</i> to the Eved. Why is it different from the payment for bodily damage done to the Eved which does not involve death and which is paid exclusively to the owner? (The answer cannot be that the master does not own his Eved with regard to the Eved's life, because he does not own the Eved with regard to his body either. See <b>RASHI</b> to Gitin 21a, DH Lo Efshar.) Perhaps the reason is that the Torah gives to the master only the rights to any material payment due to the Eved but not the rights to payments such as 'Nefesh Tachas Nefesh,' since the Eved would not receive anything material. Therefore, if the master kills the Eved, he must also 'pay' 'Nefesh Tachas Nefesh' to the dead Eved. (M. Kornfeld)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ALL AGREE FIRE THAT IS LIKE ONE'S PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> According to the opinion that one is 
          liable fire like for his arrows, why is one exempt for 
          something concealed that is burned?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The case is, Reuven is responsible for 
          a fire in a yard, and the wall to the yard fell, not due 
          to the fire (so the fire spread to the next yard);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One is liable for his arrows only as far as they 
               should have gone, i.e. until the wall.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If so, one should be totally exempt for the 
          next yard!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The opinion that obligates for fire like for 
          one's arrows agrees that he is also liable like for his 
          property;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case is, Reuven had time to stop the fire 
               from spreading to the next yard (so this is not 
               considered Ones);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is like one who brings his ox into a stable 
               and does not guard it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Since all obligate for fire like for one's 
          property, what do they argue about?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The one who obligates (also) like for his 
          arrows obligates one to pay the additional four damages 
          to man (pain, medical expenses, Sheves (compensation for 
          total inability to work while sick due to the injury), 
          and embarrassment) like a man who damages).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LIABILITY FOR THE DAMAGED CAUSED BY A SNATCHED COAL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> For the cake he pays full damage...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Who is liable for what was burned? (The same 
          one liable for the cake, i.e.) the dog's owner.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also the owner of the coal should be liable!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the coal's owner guarded it 
          properly.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If so, how did the dog get it?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The dog dug through the ground to get to it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Inference (Mar brei d'Rav Kahana):</font></b> (Since it pays full 
          damage,) this shows that it is normal for a dog to dig 
          under a wall. 
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IN ANOTHER'S FIELD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Where did the dog eat the cake?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It was near a stack of grain that did 
               not belong to the owner of the cake.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rejection:</font></b> One is liable only 'in the field of 
               another (the victim)'!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> It ate near a stack of grain belonging to the 
          owner of the cake.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Inference:</font></b> This shows that an animal's mouth is like 
          the victim's yard. If it were like the damager's yard, 
          the dog's owner could say, what is your cake doing in my 
          animal's mouth! (Tosfos - if an animal took food from the 
          victim's Reshus, surely it is liable. We ask only about a 
          case when it did not take from there.) 
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN THE VIEWS OF REBBI YOCHANAN AND REISH LAKISH WITH REGARD TO 'ESH'</b></font><b>
<br>QUESTION:</b> The Gemara concludes that even Rebbi Yochanan, who says 'Isho Mishum Chitzav,' agrees that Esh is also considered 'Mamono.' Therefore, according to Rebbi Yochanan, when one lights a fire in a walled area, and the wall falls down by itself and the fire spreads to another field and burns grain because the owner was negligent and did not rebuild the wall, the owner of the fire is exempt for damage done to Tamun (items that were hidden). In such a case the fire is not considered Adam ha'Mazik, and yet he is still liable to pay for the field because of 'Isho Mishum Mamono.'
</p><p>
The Gemara asks that if Rebbi Yochanan agrees that 'Isho Mishum Mamono,' what is the practical difference between the view of Reish Lakish who says that Esh is <i>only</i> 'Mishum Mamono' and the view of Rebbi Yochanan who says that Esh is <i>also</i> 'Mishum Chitzav'? The Gemara answers that the difference is whether the person is liable for Arba'ah Devarim. According to Rebbi Yochanan, a person must pay compensation of Tza'ar, Ripuy, and Sheves for damage that his fire does to another person because his fire is considered like Adam ha'Mazik (in a manner that is 'Karov l'Mezid'; see Rashi to 27a, DH v'Niska; <b>RABEINU CHANANEL</b> writes that the one who lit the fire is also liable to pay compensation of Boshes according to Rebbi Yochanan, since he is considered like a person who caused damage with full intent, completely 'b'Mezid').
</p><p>
Why does the Gemara ask what the difference is between Rebbi Yochanan and Reish Lakish? The Gemara in the previous Sugya (22b) has already mentioned a number of differences, such as when a person's animal takes someone else's fire and causes it to burn a field. According to Rebbi Yochanan, the owner of the animal pays Chatzi Nezek for the damage done to the entire field, and according to Reish Lakish the owner of the animal is exempt for the damage done to the field (see Rashi, DH v'Chi me'Achar).
</p><p>
Also, if a person lights a fire that burns a bound slave, Rebbi Yochanan maintains that the one who lit the fire is Chayav Misah, since he is considered as though he killed the person directly, while Reish Lakish exempts him from Misah since he did not kill the person directly.
</p><p>
A more difficult problem is why the Gemara does not mention the practical difference that it mentions just one line earlier. According to Rebbi Yochanan, one usually is <i>Chayav</i> when his Esh burns something that is Tamun, since it is like Adam ha'Mazik (unless the fire is lit in a walled area and the wall fell down on its own after the fire was lit, as mentioned above). According to Reish Lakish, one is always exempt for Esh that burns Tamun since it is never considered 'Chitzav.' (<b>TOSFOS</b> DH Mai Beinaihu)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that the Gemara indeed could have suggested these differences, but it chose to mention only one difference.
</p><p>
This answer is difficult to understand, especially with regard to the difference which the Gemara has just discussed. Why should the Gemara search for another difference between Rebbi Yochanan and Reish Lakish when it is in the middle of discussing one? (<b>BI'UR HA'GRA</b> CM 418:33)
</p><p>
Perhaps Tosfos means what the <b>RA'AVAD</b>, <b>RASHBA</b>, and <b><b><b>RI</b></b> MI'GASH</b> write (as cited by the Shitah Mekubetzes). The Gemara is seeking an <i>additional</i> practical difference, besides the ones mentioned earlier in the Gemara. (This answer, too, is somewhat forced in the wording of the Gemara.)
</p><p>
<b>RABEINU YEHONASAN</b> and the <b><b><b>RI</b></b> MI'GASH</b> add that the difference that the Gemara here suggests has much broader applications than the differences of Tamun and burning something with another person's fire, since it theoretically could apply to any fire that was lit and not just to certain fires in specific cases.
</p><p>
(b) <b>RASHI</b> here answers that the words of Rebbi Yochanan, '<i>Isho</i> Mishum Chitzav,' imply that he argues with Reish Lakish even in the case of a fire that belongs to the person who started it. That is why the Gemara does not use the difference of the dog that took someone else's coal and started a fire with it.
</p><p>
Rashi does not address the differences of Tamun and of killing a person with one's fire. How does Rashi answer why the Gemara does not mention those differences when it asks for the practical difference between Rebbi Yochanan and Reish Lakish?
</p><p>
Perhaps, according to Rashi, the Gemara does not give the difference of Tamun since it is looking for a case in which Rebbi Yochanan and Reish Lakish argue about <i>all</i> of the damage that the fire caused. In the case of Tamun, they agree that one is obligated to pay for the wheat that hid the object, and they agree that one is obligated even to pay for the object that was hidden, as though it were wheat. The argument in such a case is only whether one pays the <i>full</i> value of the object that was Tamun.
</p><p>
The Gemara does not mention the difference of being Chayav Misah for killing the Eved (see <b>MAHARAM SHIF</b>) because the Gemara wants to find a difference with regard to the laws of <i>monetary</i> damages and obligations (Nizkei Mamon), since Rebbi Yochanan and Reish Lakish are discussing the damage of Esh of the Mishnah, which is a case of monetary damage. (<b>TALMID RABEINU TAM V'RABEINU ELIEZER</b>)
</p><p>
(c) <b>RABEINU PERETZ</b> answers that the Gemara wants to find a difference between Rebbi Yochanan and Reish Lakish with regard to the case of Esh that is discussed in the Torah ('Ki Setzei Esh...,' Shemos 22:5). The Esh of the verse refers to a person's own Esh that he lit. Furthermore, it does not discuss Chiyuvei Misah. Also, it does not discuss Tamun, since one is exempt for damages to Tamun. Therefore, the Gemara gives the difference of Arba'ah Devarim, which applies to the Esh that the Torah discusses according to Rebbi Yochanan but does not apply to the Esh that the Torah discusses according to Reish Lakish.
</p><p>
(d) The <b>RAMBAM</b> (Hilchos Nizkei Mamon 14:15) seems to take a different approach to the Sugya. The Rambam rules like Rebbi Yochanan and writes that although one is liable for Esh 'Mishum Mamono,' it is also considered as though one was Mazik directly, with his 'Chitzav,' meaning that Esh is considered both 'Mamono' and 'Chitzav.'
</p><p>
The <b>MAGID MISHNEH</b> asks that if the Rambam rules like Rebbi Yochanan, why does he write (Hilchos Nizkei Mamon 14:8-9) unequivocally that a person is exempt for damages of Tamun caused by Esh? The Gemara says that according to Rebbi Yochanan, a person is exempt from Tamun <i>only</i> in a case where he lit the fire in a walled area and then the wall collapsed by itself, and the fire went to another field and damaged items that were Tamun!
</p><p>
The Magid Mishneh concludes that the Rambam must have learned the Gemara differently, or that he preferred to explain all of the Mishnayos which exempt one from damages of Tamun in their most straightforward sense.
</p><p>
The <b>VILNA GA'ON</b> favors the first suggestion of the Magid Mishneh. The Rambam learned the Gemara's question differently from the other Rishonim.
</p><p>
The other Rishonim explain that if lighting a fire is tantamount to shooting an arrow, the Torah would not exempt one for damage done by fire to objects that are Tamun, just as it does not exempt one from damage done to objects that are Tamun that one damages directly with his hands. However, the Rishonim ask, why does the Gemara assume that the Torah does not exempt one from damages of fire to Tamun if 'Isho Mishum Chitzav'? The Gemara derives that one is exempt for damage done by fire to Tamun from an inference in the verse (see 60a). Even if Adam ha'Mazik is liable for Tamun, the verse exempts one from damages of Esh to Tamun! (<b>TOSFOS HA'ROSH</b>, <b>RASHBA</b>; see <b>TOSFOS</b> DH Tamun.) 
</p><p>
Moreover, the Vilna Ga'on asks, why does the Gemara ask '<i>where do we find</i> a case of Tamun for which one is exempt [according to Rebbi Yochanan]?' The Gemara should have phrased its question, '<i>Why</i> is one exempt for Tamun [according to Rebbi Yochanan]?'
</p><p>
Based on these questions, the Vilna Ga'on explains that the Rambam understood the Gemara differently. The Gemara (61b) teaches that when a person lights a fire in someone else's field, he is not exempt for all items that are Tamun in the field. He is exempt only from paying for anything that is Tamun when he lights the fire in his own field and the fire spreads to someone else's field. The Gemara's question here is that if lighting a fire is like shooting an arrow, then whenever the fire causes damage in another's field it should be as if the person placed the fire in the other field directly, and he should be <i>Chayav</i> for Tamun! When the Gemara concludes that Rebbi Yochanan agrees that Esh is also 'Mishum Mamono,' it means that with regard to this particular point, even though Esh is like shooting an arrow it cannot be considered as though he lit the fire in the other person's field, but rather it is like property of his that wandered into another person's field by itself. The reason for this is that even after the fire is lit the person can enclose his field with a fence such that the fire will not spread to the other person's field.
</p><p>
However, this difference between fire and an arrow applies only with regard to the exemption of Tamun (because of the Gezeiras ha'Kasuv that teaches that one is exempt for Tamun). With regard to the liability for Arba'ah Devarim (and for the Chiyuv Misah for killing someone), the one who lit the fire is liable just as one who shoots an arrow at someone, according to Rebbi Yochanan.
</p><p>
This answers why the Gemara does not give Tamun as the difference between Rebbi Yochanan and Reish Lakish. It does not give Tamun as the difference because Rebbi Yochanan indeed exempts one from <i>all</i> cases of Tamun damaged by Esh.
</p><p>
(e) According to Rashi's first Lashon, all of these questions may be answered in a simple way. See following Insight.
</p><p>


<font><b>2) ONE WHO DAMAGES WITH A FIRE THAT IS NOT HIS</b></font><b>
<br>QUESTIONS:</b> The Gemara concludes that even Rebbi Yochanan, who says 'Isho Mishum Chitzav,' agrees that when the fire that a person lit cannot be compared to an arrow the owner will be liable because Esh is also 'Mamono.' The Gemara asks that if Rebbi Yochanan agrees with Reish Lakish that 'Isho Mishum Mamono,' what is the difference between the views of Rebbi Yochanan and Reish Lakish (see previous Insight)? 
</p><p>
<b>RASHI</b> explains the Gemara's question at length. There are a number of problems with Rashi's explanation in this Sugya.
</p><p>
(a) <b>RASHI</b> (22a, DH Mishum Mamono) writes that the Gemara 'originally thought' that Rebbi Yochanan and Reish Lakish argue with regard to a fire that does not belong to the person who caused it to destroy someone's field. Why does he write that this was the Gemara's 'original' assumption? Rashi himself writes here that even in the Gemara's conclusion, Rebbi Yochanan and Reish Lakish argue about such a case! (<b>MAHARAM</b> to 22a, <b>SHITAH MEKUBETZES</b> to 22a and 23a in the name of <b>GILYON</b>, <b>NIMUKEI YOSEF</b>; see also <b>MAHADURA BASRA</b> of <b>MAHARSHA</b>, <b>PNEI YEHOSHUA</b>, and <b>NACHALAS DAVID</b>.)
</p><p>
(b) Rashi here explains that Rebbi Yochanan uses the word 'Isho' ('his fire,' as opposed to 'Esh,' '[anyone's] fire') because he refers specifically to a fire that belongs to the person who caused the damage. However, Rashi earlier (22a, DH Mishum Mamono) explains that Rebbi Yochanan refers to a person who causes damage with a fire that does not belong to him! (<b>NETZIV</b> in Meromei Sadeh)
</p><p>
(c) Rashi (beginning of DH Mai Beinaihu) explains why the Gemara does not suggest that the difference between Rebbi Yochanan and Reish Lakish is a case in which the fire did not belong to the person who caused it to do damage. Later, however, Rashi (end of DH l'Chayavo) again asks why the Gemara does not give as a difference the case of a fire that did not belong to the person who caused it to do damage! (<b>LECHEM ABIRIM</b>)
</p><p>
(d) What does Rashi mean when he concludes (in DH l'Chayavo) that he prefers the 'Lashon Rishon,' the first Lashon? Rashi makes no mention of two Leshonos!
</p><p>
<b>ANSWERS:</b> The <b>MAHARAM</b> points out that the <b>MAHARSHAL</b> (in Yam Shel Shlomo) quotes a version of Rashi in which Rashi indeed presents two different Leshonos. These two Leshonos are also quoted by <b>RABEINU YESHAYAH</b> in the Shitah Mekubetzes and by the <b>CHIDUSHEI HA'RA'AVAD</b>. The first Lashon of Rashi was that Rebbi Yochanan obligates one only for Esh 'Mishum Chitzav' in a case where the fire belongs to the one who caused it to do damage. If the fire does not belong to him, the fire is not considered 'Chitzav.' According to this understanding, Rebbi Yochanan does not literally compare a fire to shooting an arrow, and in the case of a fire that is not his -- or when someone kills another person with a fire -- Rebbi Yochanan exempts the one who lit the fire, just as Reish Lakish exempts him. Also, Rebbi Yochanan exempts a person from liability for damage done with fire to Tamun, since such damage is not literally like Adam ha'Mazik. It is similar to 'Chitzav' only with regard to paying Arba'ah Devarim (that is, with regard to Arba'ah Devarim it is considered as though the person did the damage directly). The reason why Rebbi Yochanan rules that one is liable for Arba'ah Devarim even though Esh is not considered Adam ha'Mazik in any other way is that the verse which writes the word 'ha'Mav'ir' (Shemos 22:5) implies that there is at least one way in which lighting a fire is comparable to Adam ha'Mazik, to a person who damages directly.
</p><p>
This approach answers all of the questions posed in the previous Insight as well as the questions asked on Rashi here.
</p><p>
(a) Rashi (22a) writes that the Gemara 'originally thought' that Rebbi Yochanan obligates a person to pay for damages that he caused with a fire that does not belong to him. Those words are from Rashi's first Lashon, in which he learned that Rebbi Yochanan -- according to the Gemara's conclusion -- does not obligate one to pay unless the Gacheles belongs to the person who damages with it. (<b>MAHARAM</b>)
</p><p>
(b) The reason why Rashi there writes that Rebbi Yochanan is not necessarily discussing a fire that belongs to the person who damaged with it is that, according to Rashi's first Lashon, even if Rebbi Yochanan is discussing a fire that was not owned by the person who damaged with it, there is a good reason why the Gemara does not give such a case as the difference between Rebbi Yochanan and Reish Lakish. The Gemara's conclusion is that Rebbi Yochanan and Reish Lakish do <i>not</i> argue about such a case, since Rebbi Yochanan agrees that 'Isho Mishum <i>Mamono</i>' as well. 
</p><p>
(c) Apparently, Rashi added his second explanation (the explanation which appears in Rashi DH l'Chayavo) as an alternative approach ('Lishna Acharina') to the Gemara. At that point, Rashi did not yet fully accept the suggestion that Rebbi Yochanan's use of the word 'Isho' implies that he is discussing a case of a fire owned by the person who caused the damage with it. That is why Rashi preferred the first approach, wherein Rebbi Yochanan and Reish Lakish do not argue about an Esh that does not belong to the person who damages with it. (This indeed is the way Rashi's commentary appears in the London and Parma manuscripts.) Later, Rashi decided that it was the more correct approach and that the original approach was incorrect, and he removed his first Lashon (which no longer appears in our text of Rashi) and he rewrote his commentary to the Gemara in accordance with his second, new explanation. It was at that point that he added what he wrote in DH v'Chi Me'achar. (Indeed, the London and Parma manuscripts of Rashi omit his comment of DH v'Chi Me'achar, and in the Rome manuscript, Rashi's comments in DH v'Chi Me'achar are written in a marginal addition.) Our text of Rashi was copied from both the new version of Rashi (the marginal addition in the Rome manuscript) and the old version of Rashi (the London and Parma manuscripts). That is why, in our text, Rashi repeats part of his commentary about 'Isho.' (A similar combination may be found in the Cambridge manuscript of Rashi.)
</p><p>
(d) When Rashi wrote that 'the first Lashon seems correct to me,' he was referring to the first Lashon which no longer appears in our text because Rashi retracted it in favor of the second Lashon, the Lashon that does appear in our text. (Rashi removed, as well, these words of 'Lashon Rishon Nir'eh Li,' but these words were included in our text by the scribes who copied Rashi's words from his Mahadura Kama. Indeed, these words are omitted in the Cambridge manuscript of Rashi, which includes Rashi's final explanation -- the version which appears in our text of Rashi.)
</p><p>
(The manuscript versions of Rashi are printed in Rav Shabse Frankel's <b>SEFER SHINUYEI NUSCHA'OS</b>.)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Is an animal's mouth like the victim's 
               yard, or like the damager's yard?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> If it is like the damager's yard, when 
                    is Shen liable (like the verse says, 'and it 
                    consumed in another's yard')?!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer (Mar brei d'Rav Kahana):</font></b> The animal 
                    scratched against a wall for pleasure, or 
                    dirtied fruits for pleasure.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Question:</font></b> (Mar Zutra): One is liable only 
                    for 'like the Galal (tooth) will totally 
                    consume'!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'>  Answer #1 (Ravina):</font></b> It rubbed against a 
                    wall and rubbed out a picture.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer #2 (Rav Ashi):</font></b> It fell on fruits and 
                    irretrievably buried them in mud.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a man incited a dog or snake to bite, he 
          is exempt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Who is exempt?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The inciter is exempt, but the owner of the 
          dog or snake is liable.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> If an animal's mouth is like the damager's 
          yard, why is the owner liable?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, even the inciter is exempt.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Defense of Answer #1:</font></b> The case (when the owner is 
          liable) is when the animal stuck out its teeth to bite 
          (the damage occurred outside its mouth).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> If Reuven held a snake and made 
          it bite Shimon (and Shimon died), he is liable;
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Chachamim say, he is exempt.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(R. Acha bar Yakov):</font></b> R. Yehudah holds that a snake's 
          venom is already in its teeth, so we kill Reuven, not the 
          snake. Chachamim hold that the snake willingly injects 
          the venom, so we kill the snake, not Reuven.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> If an animal's mouth is like the damager's 
          yard, why is the snake killed? Shimon's hand does not 
          belong there!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> We do not say this regarding death.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> If Reuven entered Shimon's premises 
          without permission, and Shimon's ox killed him, we stone 
          the ox, but Shimon does not pay Kofer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Shimon does not pay Kofer because 
               Reuven had no right to be there. For the same 
               reason, we should not stone the ox!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We do not say so regarding death.
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  	Some goats were damaging Rav Yosef's property. He 
          suggested that Abaye tell the owners to stop them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Abaye:</font></b> They will tell you to put up a fence!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If the victim must put up a fence, when 
               is Shen liable?!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> It is liable when the animal dug under 
               the fence.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2:</font></b> It is liable when the fence fell at 
               night (the animals damaged before it could be 
               fixed).
<br> <b>    <b><font color='darkgreen'>(r)</font></b></b>  	Rav Yosef publicized that is goats left around to be 
          slaughtered on the market day are damaging, we warn the 
          owners two or three times;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they do not listen, we force the owners to 
               slaughter them immediately.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>BECOMING A MU'AD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah) Question:</font></b> What is Tam, and what is Mu'ad?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (R. Yehudah):</font></b> Mu'ad is after witnesses 
          testify that it gored on three days. After three days of 
          not goring (when it could have), it becomes Tam again.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (R. Meir):</font></b> It is Mu'ad after witnesses 
          testify three times that it gored (even on one day). If 
          it does not gore when children play with it, it is Tam.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is R. Yehudah's reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> 'Temol (yesterday)' alludes to one 
          day that it gored. 'Mi'Temol' alludes to a second day. 
          'Shilshom (two days ago)' alludes to a third day. 'And 
          its owner will not guard it' alludes to the fourth goring 
          (i.e. when it starts to pay full damage).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> 'Mi'Temol' alludes to one day (we do 
          not expound anything extra from the prefix 'mi'). 
          'Shilshom' alludes to a second day. 'And its owner will 
          not guard it' alludes to the third goring, when it starts 
          to pay full damage (Rashi; Tosfos - it is Mu'ad after 
          three gorings, but does not pay full damage until the 
          fourth).
<br>

sjt:
<p>
<font><b>3) THE MOUTH OF AN ANIMAL</b></font><b>
<br>QUESTION:</b> The Gemara proves that the Mishnah discusses the case of a dog that takes a Chararah and eats it in the Chatzer of the owner of the Chararah. The Mishnah teaches that the owner of the dog must pay for the Chararah because the damage done by the dog is Shen in the domain of the Nizak. The Gemara attempts to prove from here that the mouth of an animal is considered like the Chatzer of the Nizak, in which the animal is standing, and not like the Chatzer of the Mazik who owns the dog. If it would be considered like the Chatzer ha'Mazik, the owner of the dog should not be liable in the case of the Mishnah; he should be able to say to the owner of the Chararah, 'What is your Chararah doing in my dog's mouth?'
</p><p>
The Gemara questions how the mouth of an animal can be considered Chatzer ha'Mazik. If it would be considered Chatzer ha'Mazik, how would one ever be liable for damages of Shen? The Gemara answers that one would be liable for Shen only when the animal damages by causing an object to be consumed without putting it in its mouth (for example, by rubbing its back on a wall and rubbing away the pictures inscribed on the wall, or by rubbing itself on fruits until they are irretrievably lost in the mud). 
</p><p>
Why does the Gemara wait until this Mishnah to discuss whether the mouth of an animal is like Chatzer ha'Mazik or Chatzer ha'Nizak? If the mouth of an animal is not like Chatzer ha'Nizak, one should never be liable for Shen when an animal eats someone else's fruit! The Gemara should be able to prove that the mouth of an animal <i>is</i> like Chatzer ha'Nizak from any of the previous Mishnayos (such as 19b) which mention eating fruit as a description of the damage of Shen.
</p><p>
Moreover, how can the Mazik complain to the Nizak, 'What is your Chararah doing in my dog's mouth,' if his dog entered the Nizak's domain without permission?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS HA'ROSH</b> and <b>TOSFOS RABEINU PERETZ</b> explain that the Gemara originally assumes that one is liable for Shen even when the fruit was not eaten in Reshus ha'Nizak, as long as it was <i>taken</i> from Reshus ha'Nizak. Therefore, even if the mouth of an animal is like the Chatzer ha'Mazik, the owner of the dog will be liable since his dog took the food from Reshus ha'Nizak. 
</p><p>
What, then, is the question of whether the mouth of an animal is like Reshus ha'Nizak? The question would arise in a case where the dog did not take the food from Reshus ha'Nizak, but rather the food was taken by a Cheresh, Shoteh, Katan, or Nochri from the Reshus ha'Nizak and placed into the dog's mouth. (The <b>RASHBA</b> cites the <b>RA'AVAD</b> who suggests that the question would arise in a case where the animal took the food from a third party's Reshus ha'Yachid, and then it ate it in the Reshus of the Nizak.)
</p><p>
If this, however, is the question, then how can the Gemara prove from the Mishnah that discusses a dog that took a Chararah that the mouth of an animal is like the Chatzer ha'Nizak? In the case of the Mishnah, the <i>dog</i> took the Chararah by itself, and thus the owner is certainly liable because the Chararah was taken from the Reshus of the Nizak by his animal!
</p><p>
Tosfos explains that the Gemara's proof is not from the Mishnah but from the short Sugya that precedes this point of the Gemara. The Gemara asks, why is the owner of the dog liable if the dog ate the Chararah in any place other than the Reshus ha'Nizak? The Gemara concludes that the dog indeed ate the Chararah in the Reshus ha'Nizak. From this Sugya it is clear that it does not suffice for the dog to take the Chararah from the Reshus ha'Nizak, but it must also <i>eat</i> the Chararah in the Reshus ha'Nizak in order for the dog's owner to be liable. Thus it is clear that the mouth of the animal is like the Chatzer ha'Nizak.
</p><p>
According to this explanation, the Mishnayos which describe Shen as an animal that eats food in the Reshus ha'Nizak do not prove that the mouth of an animal is like the Chatzer ha'Nizak, since they are discussing an animal that <i>takes</i> the food from the domain of the Nizak. Why does the Gemara ask when will one be liable for Shen if the mouth of an animal is like the Chatzer ha'Mazik? One will be liable for Shen when the animal takes the food by itself directly from the Reshus ha'Nizak, in which case it makes no difference where it eats the food! Tosfos answers that the verse implies that the animal not only takes the food from Reshus ha'Nizak but even eats it there as well. Therefore, the Gemara asks that if the mouth of an animal is considered the Chatzer ha'Mazik, how is one to understand the verse that implies that the owner is liable for Shen when the food is consumed in the Chatzer ha'Nizak.
</p><p>
(b) <b>RABEINU YESHAYAH</b> in the Shitah Mekubetzes explains that the Gemara knows that if one sends his animal into another's Reshus, he is liable even if his animal eats the food in a different Reshus. The question is whether he is liable when the animal goes by itself into another's Reshus. The Gemara proves that one is liable even if the animal goes by itself, because its mouth is like the Chatzer ha'Nizak, from the fact that one is liable when one's dog eats the Chararah (as the Mishnah says). The Mishnah refers to a case in which the dog went by itself and ate the Chararah, as the Mishnah says, 'a dog that <i>took</i> a Chararah....' This is clear from the Gemara which requires that the dog eat the Chararah in the Reshus of the owner of the Chararah in order for the dog's owner to be liable. (If the owner had sent the dog there, he would have been liable regardless of where the dog eats the Chararah, according to Rabeinu Yeshayah.)
</p><p>
When the Gemara asks that if the mouth of the dog is like the Chatzer ha'Mazik, then in what case does the Torah obligate one for damages of Shen, it knows that one would be liable for Shen when he <i>sends</i> his dog into the Chatzer ha'Nizak. The Gemara's question was, as explained earlier (3a), that the Torah obligates him even when he does not send the dog into the Chatzer ha'Nizak but it goes by itself. How, though, can one be liable in that case if the dog's mouth is like Chatzer ha'Mazik? That is the Gemara's question.
</p><p>
The <b>RASHBA</b> cites the <b>RA'AVAD</b> who offers a similar explanation. The Gemara knows that when the animal picks up the food in the Chatzer ha'Nizak, the owner is liable even if the animal eats the food in a different Reshus. The question is whether the owner is liable when the animal takes the food from the Reshus of a different person (who does not own the food) and eats it in the Reshus of the owner of the food. If the mouth of the animal is like Chatzer ha'Nizak, one is liable, but if it is not, one is not liable. The Gemara proves that one is liable when his animal takes the food from a Reshus that belongs to someone other than the owner of the food and eats it in the Reshus of the food's owner (because its mouth is like the Chatzer ha'Nizak) from the fact that one is liable when one's dog eats the Chararah (as the Mishnah says). The Mishnah refers to a case in which the dog took the Chararah from the Reshus of a different person and ate the Chararah in the Reshus of the owner of the Chararah, as the Mishnah says, 'A dog that took a Chararah <i>and went to</i> a Gadish and ate [the Chararah there].' This is clear from the Gemara which requires that the dog eat the Chararah in the Reshus of the owner of the Chararah in order for the dog's owner to be liable. (If the dog had taken the Chararah from the Reshus of the owner of the Chararah, the owner of the dog would have been liable regardless of where the dog eats the Chararah, according to the Ra'avad.)
</p><p>
(This interpretation of the Mishnah answers the first question of <b>TOSFOS</b> DH v'Lechayav, and this might be the intention of <b>RASHI</b> DH Hachi Garsinan and DH v'Lechayav, unlike the <b>BACH</b> #2.)
</p><p>
According to the Ra'avad, when the Gemara asks how is one ever liable for Shen, the Gemara does not know that one certainly is liable when the animal takes the food from the Reshus of the food's owner. The Gemara answers its question according to the understanding of the questioner. 
</p><p>
The difference between Tosfos' explanation (in (a) above) and the explanation of Rabeinu Yeshayah and the Ra'avad is that according to Tosfos, the Gemara concludes that in order for its owner to be liable, the animal must both <i>take</i> the food and <i>eat</i> the food in the Reshus of the Nizak. According to Rabeinu Yeshayah and the Ra'avad, this is not true; the owner could be liable if the animal only <i>takes</i> the food from the Reshus of the Nizak and does not eat it there, when the owner sends the animal there to eat it (Rabeinu Yeshayah), or when the animal takes the food from the Reshus of the Nizak (Ra'avad). (See <b>TOSFOS</b> to 20a, DH Misgalgel.)
</p><p>
(c) The <b>RADVAZ</b> cited by the Shitah Mekubetzes and the <b>MAHARACH <b><b>OR</b></b> ZARU'A</b> (#109) explain that the question of the status of the animal's mouth applies only when the Nizak does not properly protect his fruit from coming into the mouth of the animal. For example, the Gemara teaches (23a) that the owner of the Chararah did not protect his Chararah properly from dogs, since dogs are known to dig under gates (see <b>TOSFOS</b> DH b'she'Shimer). In such a case, the owner of the animal has a valid claim when he says, 'What is your food doing in my animal's mouth?' What he means is that the Nizak should have protected his food from coming into the mouth of the animal of the Mazik. On the other hand, perhaps the mouth of the animal is considered like the Chatzer ha'Nizak, meaning that the Nizak is not responsible for keeping his food out of the Mazik's animal as long as the food is in the Nizak's Reshus.
</p><p>
The Gemara's proof that the mouth of the animal is like the Chatzer ha'Nizak is from the Mishnah which says that the owner of the dog is liable to pay for the Chararah even though the Chararah was not properly protected from dogs. When the Gemara asks how can one be liable for Shen in Reshus ha'Nizak if the mouth of an animal is like Reshus ha'Mazik, the Radvaz explains that the question is that most fields are not properly guarded to prevent animals from entering, and therefore the verse seems to obligate the owner of the animal even if the Nizak does not take proper care to keep the animal out. (The Maharach Or Zaru'a explains that the proof is from Shen b'Reshus ha'Rabim, in which case the Torah teaches that Shen is exempt. Why does the Torah need to teach that Shen is exempt in Reshus ha'Rabim? In any case Shen should be exempt there because the Nizak -- who placed his food in Reshus ha'Rabim -- did not take care to keep it out of the mouth of the Mazik's animal!) 
</p><p>
(d) The <b>TOSFOS RID</b> and <b>RASHI</b> seem to explain the Gemara in its most straightforward sense, that if the mouth of an animal is like Reshus ha'Mazik, one is <i>never</i> liable for what one's animal eats. They may understand that whenever the word 'Achlah' appears in the Mishnah in reference to Shen, it does not refer to consumption through eating but rather to consumption through other means (such as rubbing off inscriptions from walls). The Mishnah, which discusses a dog which takes a Chararah in its mouth and then eats it, implies that even if the animal literally eats it the owner is liable.
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE SOURCE FOR WHAT MAKES A MU'AD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Meir's reason?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> If it becomes Mu'ad after intermittent gorings, 
          all the more so when the gorings are close together!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Chachamim:</font></b> A Zavah (a woman who experienced post-
               menstrual bleeding) disproves this. If she sees 
               blood on three consecutive days, she is a Zavah, but 
               not for three sightings on one day!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Meir:</font></b> The verse 'this is the law of his Tum'ah 
               through his emissions' (mentions emissions three 
               times. This) shows that a Zav (a man who sees Zivah, 
               i.e. emissions of uncooked semen) becomes Tamei 
               through (three) sightings (even if they are in one 
               day), but a Zavah does not (she must see on distinct 
               days. If not for the verse, a Kal va'Chomer would be 
               Metamei a Zavah who had sightings in one day. Our 
               Sugya discusses Tum'ah that persists until seven 
               clean days without sightings. Even a single sighting 
               of blood or Zivah is Metamei for one day.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> How do we know that 'this' excludes a 
               Zavah (from Tum'ah unless she saw on consecutive 
               days)? Perhaps it excludes a Zav from Tum'ah if he 
               sees on consecutive days!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> 'And one who has a flow, a male or a 
               female' equates men and women;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Just like a woman becomes Temei'ah through 
                    sightings on consecutive days, also a man.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Suggestion:</font></b> We should also equate them, and say 
               that just like a man becomes Tamei through sightings 
               on one day, also a woman!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rejection:</font></b> 'This' excludes a woman.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps we should learn oppositely! (A 
               woman becomes Temei'ah through sightings on one day, 
               like a man, and 'this' excludes a man who sees on 
               consecutive days.)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> The verse 'this...' discusses sightings 
               (on one day). It is more reasonable to explain that 
               it excludes sightings (of a woman) on one day, than 
               to say that it exclude sightings (of a man) on 
               consecutive days.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa - R. Yosi):</font></b> An animal is Mu'ad after witnesses 
          testify that it gored on three days. It reverts to be Tam 
          when children play with it and it does not gore;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon says, after witnesses testify three 
               times that it gored, it is Mu'ad;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The relevance of three days to a Mu'ad pertains 
                    to reverting to being Tam (if it doesn't gore 
                    in three days).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> The Halachah is like R. Yehudah 
          regarding a Mu'ad, and like R. Meir regarding a Tam, 
          because R. Yosi agree with them.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Perhaps the Halachah is like R. Meir 
          regarding a Mu'ad, and like R. Yehudah regarding a Tam, 
          because R. Shimon agrees with them!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> I hold like R. Yosi because he 
          has superb reasons and proofs.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHY THREE DAYS ARE NEEDED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Are three days required (to make it a Mu'ad) 
          to establish that the ox gores, or to warn the man?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What difference does it make?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> If three sets of witnesses testify on one 
               day about gorings on three days, this suffices to 
               establish that the ox gores;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It does not suffice to warn the man. He can say 
                    'I learned about the gorings only now.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> An ox becomes Mu'ad only if they 
          testify about it in front of the owner and in front of 
          Beis Din;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If two witnesses testified about the first 
               goring, two about the second, and two about the 
               third, they are three testimonies, but they are 
               considered one testimony regarding Hazamah:
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the first two witnesses were found to be 
               Zomemim (they testified about something they were 
               not present to see), the latter two testimonies 
               stand. The ox is not Mu'ad, and the Zomemim are not 
               punished (for trying to make the ox Mu'ad);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If also the next two witnesses were found to be 
               Zomemim, the last testimony stands. The ox is not 
               Mu'ad, and the lying witnesses are not punished;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If all the witnesses were found to be Zomemim, 
               they are all punished - 'you will do to him like he 
               plotted.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> This is like the opinion that the testimony is to 
               establish the ox to gore.
<br>
<br>

sjt:
<font><b>1) MAKING A 'SHOR' INTO A 'SHOR HA'MU'AD'</b></font><b>
<br>QUESTIONS:</b> The Gemara discusses the mechanism of how three sets of testimony make a Shor into a Shor ha'Mu'ad. Do they serve to make the <i>Shor</i> Mu'ad ('Yi'udei Tora') or do they serve to make the <i>owner</i> Mu'ad ('Yi'udei Gavra')? The practical difference exists in a case in which all three sets of witnesses come on the same day and testify that the Shor gored on three different days in the past. Such testimony can make the <i>Shor</i> a Mu'ad ('Yi'udei Tora') since it proves that the Shor has a tendency to gore. It cannot make the <i>owner</i> Mu'ad ('Yi'udei Gavra') since the owner has not yet ignored Beis Din's warning to guard his Shor three times.
</p><p>
The Gemara proves that the purpose of the testimony is to make the <i>Shor</i> a Mu'ad ('Yi'udei Tora'). It proves this from a Beraisa which teaches that if three sets of witnesses testify that an ox gored on three different occasions, and all of them are found to be Edim Zomemim, all six witnesses must jointly pay the second half of the value of the payment which they wanted to obligate the owner of the Shor to pay (the payment of a Shor ha'Mu'ad), since they all intended to obligate him to pay that payment.
</p><p>
How does the Beraisa know that the witnesses intended to cause the owner to have to pay damages caused by a Shor ha'Mu'ad? Perhaps each set intended to cause him to pay for damages caused by a Shor <i>Tam</i> (i.e. Chatzi Nezek). It must be that all three pairs of witnesses came together to testify that the Shor was a Mu'ad as a result of three gorings that occurred on different days in the past, as Rashi explains.
</p><p>
If such testimony is accepted, it must be that the witnesses are accomplishing 'Yi'udei Tora,' since the Shor becomes a Mu'ad even though the owner was not warned on three separate occasions.
</p><p>
The Gemara asks that even if the testimony accomplishes 'Yi'udei Tora,' why should the third set of witnesses have to share in the payment of the Mu'ad-half of the payment? Why can they not claim that they were not aware that the Shor had gored two times in the past, and they came only to make the owner liable (Chatzi Nezek) for the goring which they saw on this occasion? 
</p><p>
Ravina answers that the third set of witnesses testify that they saw one of the owner's oxen gore, but they are not sure which one it was. If the Shor is a Tam, the owner will not have to pay at all since one pays only 'mi'Gufo' for damages of a Tam (and one of the oxen of the flock died or ran away after the time of the goring and before the testimony, and thus the owner can claim that it was the Shor that gored that died or ran away, as Tosfos writes). Therefore, it must be that the witnesses intended to make the Shor into a Mu'ad and make the owner pay Nezek Shalem ('Min ha'Aliyah' and not 'mi'Gufo'). 
</p><p>
Two basic problems in this Sugya must be addressed.
</p><p>
<b>RASHI</b> (DH Kulan) clearly writes that after the three sets of witnesses testify, the owner must pay Nezek Shalem for the third goring. Why should the Shor become a Mu'ad on the third goring? Earlier (23b), Rashi explains that Rava and Abaye argue about whether a Shor pays Nezek Shalem for the third goring (Rava) or only for the fourth goring (Abaye). How does Abaye explain the Beraisa here which says that the Shor becomes a Mu'ad on the third goring?
</p><p>
Moreover, if the third set of witnesses are not sure which ox gored, how can they make the Shor into a Mu'ad to pay Nezek Shalem? They cannot prove that the ox that gored this time already gored two times in the past!
</p><p>
<b>ANSWERS:</b> The Rishonim suggest two completely different ways to explain the Sugya. Those two ways are based on the two ways they explain the argument between Rava and Abaye earlier (23b). Rashi there explains, as mentioned above, that Rava makes the animal a Mu'ad on the third goring, and Abaye makes it a Mu'ad only on the fourth. Consequently, when the Gemara (24a) says that 'Yi'udei Tora' can be accomplished when three sets of witnesses come in one day, it must mean that the set which obligates the owner to pay for the animal's damage as a Shor ha'Mu'ad can also come on the same day as the first two sets of witnesses. It is not necessary to prove that the Shor has the nature of a Mu'ad before the goring occurs for which the owner must pay Nezek Shalem. If that were not the case, then according to Rava (whose opinion is the Halachah) the Gemara should say that two sets of witnesses come on one day, and if the ox gores afterwards the owner pays for it as a Mu'ad. 
</p><p>
<b>TOSFOS</b> (23b, DH v'Lo) and the Rishonim point out that this explanation is not consistent with logic or with the verse. Logically, the reason why the Shor must be made into a Mu'ad is to warn the owner to guard his Shor properly. The reason the owner pays Nezek Shalem if he does not guard it is that he did not heed the warning of Beis Din. If three sets of witnesses testify in court on the same day that there were three gorings, the owner has received no warning to guard his ox. Why, then, should he pay Nezek Shalem (even according to the view of 'Yi'udei Tora')? 
</p><p>
Moreover, the verse says, 'v'Hu'ad b'Va'alav v'Lo Yishmerenu,' which implies that the owner was warned to watch the ox but did not watch it.
</p><p>
Perhaps Rashi understands that according to the view that requires 'Yi'udei Tora,' it is not necessary that the owner receive an official warning from Beis Din to watch his ox. Rather, the very fact that his ox gored is enough to obligate him to watch his ox, since the owner is responsible to know whether or not his ox has an irritable temperament. Therefore, even if the witnesses testified in court on the same day about three gorings, the owner could have prevented the third goring and he must pay Nezek Shalem for any damages that were caused. 
</p><p>
Tosfos and the other Rishonim disagree with Rashi's interpretation of Rava's view. They write that both Abaye and Rava agree that the owner begins to pay Nezek Shalem only from the <i>fourth</i> goring onward. (Some say that Abaye and Rava argue only about 'Mashma'us Dorshin,' how to expound the verse, and there is no practical difference between them.) Tosfos writes that Rashi himself later retracted what he wrote here and explained the Gemara in this manner. According to this interpretation, when the Gemara says that 'Yi'udei Tora' is accomplished by three testimonies on the same day, it does not mean that the owner must pay Nezek Shalem for the third goring but that from now on the owner must pay Nezek Shalem for any subsequent gorings. As mentioned above, both logic and the verse imply that the owner must be warned to watch his ox before the ox gores in order to be obligated to pay Nezek Shalem.
</p><p>
As mentioned above, these two approaches have major implications for understanding the Gemara's proof from the Beraisa for the view of 'Yi'udei Tora.'
</p><p>
(a) <b>RASHI</b> here explains that the Beraisa indeed follows the opinion of Rava, who maintains that if the testimony accomplishes 'Yi'udei Tora,' then the owner pays Nezek Shalem on the third goring even though he was never brought to court prior to this goring. This explains the Gemara's proof from the Beraisa for the view of 'Yi'udei Tora.' If the three testimonies obligate the owner to pay Nezek Shalem, then according to the opinion that says 'Yi'udei Tora' it easily can be proven that the first two sets of witnesses wanted to make the Shor into a Mu'ad, for otherwise why would they have come to court for the third person whose ox was gored? If they wanted only to make the owner of the ox pay Chatzi Nezek, they should have come to court with the person whose ox was gored previously, which they witnessed, since he is the one who will receive the Chatzi Nezek. This is the Gemara's proof for 'Yi'udei Tora.'
</p><p>
The Gemara asks that even if the testimony accomplishes 'Yi'udei Tora,' why should the <i>third</i> set of witnesses share in the payment of the Mu'ad-half of the damages? They should be able to claim that they were not aware that the Shor had gored two times in the past and that they came only to make the owner obligated to pay Chatzi Nezek for the goring that they saw (since they are brought by the person whose ox was gored, which they witnessed).
</p><p>
Ravina answers that the third set of witnesses admit that they do not recognize the ox, and therefore they cannot obligate the owner to pay Chatzi Nezek mi'Gufo. It must be that they are coming to obligate him to pay Nezek Shalem <i>Min ha'Aliyah</i>. How can they make the Shor a Mu'ad if they do not know if it is the same one that gored in the past? The answer is that the Shor is already a Mu'ad because of the first two gorings (according to the way Rashi learns Rava), since the witnesses that testified about the first two gorings <i>did</i> recognize the ox. 
</p><p>
This still does not completely answer the question. How does the third set of witnesses know that the ox that gored is the Mu'ad ox and not another ox which is a Tam? Some explain that the third set of witnesses testify that at the time of the goring they recognized it to be the same one that gored in the past, and it was only later that this ox wandered into the flock and became unidentifiable.
</p><p>
The problem with this explanation is that it does not explain the meaning of the last line of the Gemara, where the Gemara asks, 'How could [the witnesses] make a Shor into a Mu'ad [with such testimony]?' The Gemara answers that the witnesses testify, 'You have in your flock a Shor that gores, and therefore you must guard your entire flock.' According to Rashi, what the owner must guard <i>in the future</i> has no bearing on this case, since this case involves only the payment for the third goring which already occurred (before the ox became mixed in with other oxen). The <b>DIBROS MOSHE</b> (end of #15) suggests that for this reason Rashi might not have had this last part of the Gemara in his Girsa.
</p><p>
Perhaps Rashi understood Ravina's answer differently. Ravina means that after the first two gorings, and before the third, the Shor ha'Mu'ad became mixed in with other oxen (or with an identical ox) in such a way that no one could possibly distinguish between the oxen.
</p><p>
The Gemara is asking that if the witnesses are not sure that the Shor ha'Mu'ad is the one that gored, how can they make the owner pay Nezek Shalem? The Gemara answers that when the oxen became mixed up, the owner himself could not identify which ox is the Mu'ad. Since he knew that there was a Mu'ad in the flock, he became responsible to watch the entire flock as if each ox was a Shor ha'Mu'ad. Therefore, even if the ox that gored the third time was not the same ox as the earlier one (or ones) that gored, the owner is responsible to pay Nezek Shalem because he was forewarned to guard that particular ox as well. This is in accordance with what we explained above, that even according to Rashi a Shor becomes a Mu'ad only because the owner should have watched it and he failed to do so. (Alternatively, since it is known that one ox is a Mu'ad and that, at present, this particular ox gored, it is assumed that this ox is the Mu'ad and not that there is a second ox in the flock that gores. See <b>TOSFOS RABEINU PERETZ</b>.)
</p><p>
Why does the Gemara not explain that the witnesses recognized the ox at the time of the goring, and the ox became mixed up only afterwards, and that is how it is known that the Mu'ad caused the damage? The answer is that if the third set of witnesses once recognized the ox, they still may claim that they wanted to make the owner pay Chatzi Nezek at a later time when they would recognize the ox that they originally saw. It must be that the third set of witnesses never recognized which ox gored in the first place.
</p><p>
(b) <b>TOSFOS</b> explains that the three gorings in the case of the Beraisa only make the Shor a Mu'ad such that it will pay Nezek Shalem when it gores a <i>fourth</i> time. Why do the Edim Zomemim need to pay for the Mu'ad damages if the Shor is not yet a Mu'ad? Tosfos (end of DH v'Lo) gives two explanations. In his first explanation, Tosfos says that they pay the damage of a Mu'ad if the Shor eventually does damage a fourth time, since the earlier testimony is what caused it to be obligated for Mu'ad damages. Alternatively, Tosfos says that even if the ox does not gore a fourth time, it is now worth less on the market as a result of becoming a Shor ha'Mu'ad, and it is that loss of value for which the three sets of witnesses have to compensate when they are found to be Edim Zomemim.
</p><p>
The Gemara proves from the Beraisa the view of 'Yi'udei Tora,' since it is only when the three sets of witnesses come together that Beis Din can be sure that the first two sets wanted to make the Shor into a Mu'ad and not just a Tam. How can their coming together prove that they wanted to make the Shor a Mu'ad since, in any case, they testified <i>before</i> the Shor gored a fourth time -- before its owner became obligated to pay for it as a Mu'ad? (Tosfos maintains that the Shor must become a Mu'ad <i>before</i> the fourth goring.) The witnesses did not come to court with the owner of the ox that was damaged by a Mu'ad, but rather they came to court with the owner of an ox that was damaged by a Tam!
</p><p>
Tosfos (24b, DH Leimru; see <b>MAHARAM</b>) explains that the very fact that the witnesses did not come to court immediately but they waited for the third goring shows that they were trying to make the Shor into a Mu'ad.
</p><p>
When Ravina explains that the third set of witnesses must have intended to make the Shor a Mu'ad because they testified that they did not recognize the ox that caused the damage, he means that the witnesses <i>did</i> recognize the ox at the time that it caused the damage, but it became mixed up with the other oxen before the time of the testimony. The witnesses are trying to make the owner have to pay Nezek Shalem <i>if</i> it later becomes clear which of the oxen was the original Mu'ad, and if it causes damage a fourth time.
</p><p>
Tosfos asks that if the only way for the witnesses to make the ox a Mu'ad is by later distinguishing which ox was the one that gored, the original question returns -- perhaps they wanted to make the Shor a Tam to obligate the owner to pay 'mi'Gufo' when that ox is identified as the one that gored!
</p><p>
Tosfos answers that if the witnesses wanted to make the owner pay Chatzi Nezek, they should have waited until they could distinguish which ox gored. Why did they testify before they knew which ox gored? It must be that they wanted to make the Shor into a Mu'ad and obligate the owner to pay Nezek Shalem, and the owner only pays Nezek Shalem if he was warned to watch his ox <i>before</i> the fourth goring. That is why the witnesses came to court immediately, before waiting until they recognized which Shor gored.
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> If we need three days to warn the man, why are 
               the first two pairs of witnesses punished? They can 
               say ('we didn't intend to make it Mu'ad.) We didn't 
               know that more witnesses would come!'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Kahana):</font></b> We can ask similarly if the 
          testimony is to establish the ox to gore!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The witnesses about the last goring can say 'we 
               came only to obligate the owner half-damage. We 
               didn't know why the other witnesses were in Beis 
               Din! (Rashi - the case is, the third victim asked 
               all six witnesses to testify. The witnesses about 
               the first gorings know that he wants to make the ox 
               Mu'ad. Tosfos - the case is, the witnesses about the 
               previous gorings testified only after the witnesses 
               about the last goring. Surely, they wanted to make 
               it Mu'ad! Ra'avad - even the witnesses about the 
               last goring can claim that they came only to 
               obligate half-damage.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The witnesses gestured to each other. (Rashi 
          - this (and the coming) answers are like the opinion that 
          the testimony is to establish the ox like a gorer; Tosfos 
          - the answers are valid also for the opinion that the 
          testimony is to warn the man.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> The witnesses came together.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Ravina):</font></b> The witnesses do not know which ox 
          gored (so they cannot obligate half-damage), but they 
          know whose ox gored.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If so, how can they make it Mu'ad?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> They say that since the man has a goring ox, he 
          must guard his whole herd.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>INCITEMENT TO GORE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If Levi incited Reuven's dog to bite Shimon, 
          what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Surely, Levi is exempt (he merely caused damage). 
               Is Reuven liable?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Can he say 'I didn't do anything!'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Or, since he knows that his dog can be incited, 
               he should not have such a dog!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (R. Zeira - Mishnah):</font></b> If an animal does not gore 
          when children play with it, it is Tam;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Inference):</font></b> If it gores other oxen (when incited 
               by children), it is liable!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> No. If it gores when incited, it is 
          Mu'ad, but it is exempt for that goring.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a man incited a dog or snake to bite, he 
          is exempt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Who is exempt?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The inciter is exempt, but the owner 
               of the dog or snake is liable.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> No, even the inciter is exempt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rava):</font></b> Even if you will say that when Levi incited 
          Reuven's dog to bite Shimon, Reuven is liable, but if it 
          bit Levi, Reuven is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because if one party does something 
               abnormal, and another party acts abnormally and 
               damages the first, the second party is exempt.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> Reish Lakish supports Rava.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> If a cow was crouching in a 
               Reshus ha'Rabim, and another cow was walking, and 
               the walking cow kicked the crouching cow, it is 
               exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the crouching cow kicked the walking cow, it is 
               liable.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rava):</font></b> I say that even in the first case, it is 
          liable. The walking cow has the right to walk over the 
          crouching cow, but it may not kick it.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>KEREN IN THE VICTIM'S PREMISES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> What is the law of an ox that damaged in the 
          victim's premises?
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If it gored, pushed, bit, crouched or kicked in Reshus 
          ha'Rabim, it pays half-damage;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	In the victim's premises, R. Tarfon obligates full 
          damage;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Chachamim say, it pays half-damage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Tarfon:</font></b> In a Reshus ha'Rabim, the Torah is 
               lenient to exempt Shen and Regel, but they pay full 
               damage in the victim's premises. Keren pays half-
               damage in a Reshus ha'Rabim. All the more so it pays 
               full damage in the victim's premises!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Chachamim:</font></b> Dayo (we cannot learn from a Kal 
               va'Chomer more than the source). Just like Keren 
               pays half-damage in a Reshus ha'Rabim, also in the 
               victim's premises.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Tarfon:</font></b> I need not learn Keren from Keren. I 
               can learn Keren from Regel!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In a Reshus ha'Rabim, the Torah is lenient to 
                    exempt Shen and Regel, but Keren pays half-
                    damage. In the victim's premises, where Shen 
                    and Regel pay full damage, all the more so 
                    Keren pays full damage!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Chachamim:</font></b> Dayo. It pays only half-damage, like 
               in a Reshus ha'Rabim.
<br>

sjt:
<p>
<font><b>2) 'YI'UDEI TORA' AND 'YI'UDEI GAVRA'</b></font><b>
<br>QUESTION:</b> The Gemara discusses the mechanism of how three sets of testimony make a Shor into a Shor ha'Mu'ad. Do they serve to make the <i>Shor</i> Mu'ad ('Yi'udei Tora') or do they serve to make the <i>owner</i> Mu'ad ('Yi'udei Gavra')? The Gemara proves that the purpose of the testimony is to make the <i>Shor</i> a Mu'ad ('Yi'udei Tora'). It proves this from a Beraisa which teaches that if three sets of witnesses testify that an ox gored on three different occasions, and all of them are found to be Edim Zomemim, all six witnesses must jointly pay the second half of the value of the payment which they wanted to obligate the owner of the Shor to pay (the payment of a Shor ha'Mu'ad), since they all intended to obligate him to pay that payment.
</p><p>
How does the Beraisa know that the witnesses intended to cause the owner to have to pay damages caused by a Shor ha'Mu'ad? Perhaps each set intended to cause him to pay for damages caused by a Shor <i>Tam</i> (i.e. Chatzi Nezek). It must be that all three pairs of witnesses came together to testify that the Shor was a Mu'ad as a result of three gorings that occurred on different days in the past, as Rashi explains. If such testimony is accepted, it must be that the witnesses are accomplishing 'Yi'udei Tora,' since the Shor becomes a Mu'ad even though the owner was not warned on three separate occasions.
</p><p>
The Gemara asks that even if the testimony accomplishes 'Yi'udei Tora,' why should the third set of witnesses have to share in the payment of the Mu'ad-half of the payment? Why can they not claim that they were not aware that the Shor had gored two times in the past, and they came only to make the owner liable (Chatzi Nezek) for the goring which they saw on this occasion?
</p><p>
The Gemara first answers that the witnesses gestured to each other. Rav Ashi answers that the three sets of witnesses came to court together. Ravina answers that the witnesses testify that they saw one of the owner's oxen gore, but they are not sure which one it was. (See previous Insight.)
</p><p>
Are these answers attempts to explain the Beraisa according to the view of 'Yi'udei Tora,' or do they also answer the Beraisa according to the view of 'Yi'udei Gavra'? (As explained above, the view of 'Yi'udei Gavra' must explain that the three sets of witnesses came on three separate occasions and not at the same time.) 
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> explains that these answers explain only how the Beraisa knows that the third set of witnesses intended to make the Shor into a Mu'ad, according to the opinion of 'Yi'udei Tora.' The first answer says that the first two pairs of witnesses gestured to the third pair to come and testify. Accordingly, the third pair must have known that two sets of witnesses testified previously.
</p><p>
Rav Ashi answers that the three sets of witnesses walked into Beis Din together, which clearly shows that they knew what each other would testify.
</p><p>
Ravina answers that the third set of witnesses could not identify which ox did the damage. (Rashi explains that this answer, too, does not suffice according to the view of 'Yi'udei Gavra.')
</p><p>
(b) <b>TOSFOS RABEINU PERETZ</b> explains that Ravina's answer applies even according to the opinion of 'Yi'udei Gavra.' Ravina means that each of the three sets of witnesses testified that they do not remember which ox it was that gored. If they later identify the ox and it gores a fourth time, the owner will have to pay damages of a Mu'ad. How does Beis Din know that they intend to identify the Shor later and make it into a Mu'ad, and not to make it merely a Tam now? Their intention must be to make the Shor into a Mu'ad because, otherwise, they would wait to come to court until they could identify the Shor, since they accomplish nothing by testifying before they can identify the ox (as mentioned in the end of the previous Insight).
</p><p>
(c) <b>TOSFOS</b> cited by Tosfos Rabeinu Peretz (see Tosfos DH b'Makirin) and the <b>ME'IRI</b> explain that not only does Ravina's answer address the view of 'Yi'udei Gavra,' but the first answer of the Gemara does as well. When the Gemara says that they gestured to each other, it means that each time one set of witnesses came to court the other sets stood in court and winked at them, gesturing in such a way to show that they are plotting together.
</p><p>
However, the answer of Rav Ashi -- that all of the witnesses came together -- obviously maintains that the testimony accomplishes 'Yi'udei Tora' since the witnesses are coming on the same day. 
</p><p>
(d) <b>RABEINU CHANANEL</b> cited by Tosfos Rabeinu Peretz explains that even Rav Ashi's answer explains the Beraisa according to the view of 'Yi'udei Gavra': If all three sets came together when the third set came to Beis Din, that alone shows that they must have plotted together, for otherwise why did the first two sets return to Beis Din?
</p><p>
The <b>RA'AVAD</b> makes a similar suggestion, but he explains that Rav Ashi means that all three sets came to Beis Din <i>each</i> time, on each occasion when one of the sets of witnesses came to testify. This is the implication of the words of Rabeinu Chananel as printed in our text. (See also <b>MAHARSHA</b> in <b>MAHADURA BASRA</b> to Tosfos DH Ela.)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DAYO</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Does R. Tarfon not apply Dayo? Dayo is 
          mid'Oraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'If (Miryam's) father would spit at 
               her, she should be shut up for seven days' - all the 
               more so, she should be shut up for 14 days when the 
               Divine Presence is angry at her!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> However, due to Dayo, she will be shut up for 
               seven days.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> He agrees to Dayo when it still allows 
          something to be learned from the Kal va'Chomer;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> No verse teaches that she should be shut up seven 
               days due to the Divine Presence. A Kal va'Chomer 
               teaches 14, and Dayo says that we may only learn 
               seven.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding Keren, the verse that teaches half-
               damage also applies to the victim's premises. If we 
               apply Dayo, the Kal va'Chomer will not teach 
               anything!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, 'She will be shut up seven days' 
               already teaches seven days due to the Divine 
               Presence (and even so, we say Dayo)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Tarfon says, that verse teaches Dayo. Without 
               it, we would have said that she will be shut up 14 
               days!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Chachamim:</font></b> Another verse teaches that - 'Miryam 
               was shut up (...seven days)'!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> R. Tarfon says, that teaches that we generally 
               say Dayo (if there is no other Chidush of the Kal 
               va'Chomer). One might have thought that Dayo applied 
               only to Miryam, due to Moshe's honor.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>TANA'IM WHO ARGUE ABOUT DAYO</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> The following Tana who does not 
          apply Dayo even when it would not cause that nothing is 
          learned from the Kal va'Chomer!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> What is the source that semen of a Zav 
               is Tamei? We learn from a Kal va'Chomer.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Tahor emissions of a Tahor person (e.g. his 
                    spit), such emissions of a Tamei person (e.g. a 
                    Zav) are Tamei. Emissions of a Tahor person 
                    that are Tamei (e.g. his semen), all the more 
                    so from a Tamei person they are Tamei! 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Summation of question:</font></b> He learns (that a Zav's 
               semen has all the Tum'ah of his spit, i.e.) Maga 
               (through touching) and Masa (through moving). He 
               should learn only Tum'as Maga. Dayo should prevent 
               him from learning Tum'as Masa!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> We do not need a Kal va'Chomer for 
               Maga. The verse that teaches Tum'ah (of Maga) of 
               semen applies also to a Zav!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> That verse says 'a chance happening of 
               the night.' One might have thought that this does 
               not apply to a Zav, for his semen has a cause (his 
               malady)! We need the Kal va'Chomer to teach that 
               this is not so.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The verse does not say that the semen 
          has no cause (we do not need the Kal va'Chomer for Tum'as 
          Maga).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Which Tana holds that semen of a Zav has 
          Tum'as Masa? This is unlike R. Eliezer and unlike R. 
          Yehoshua!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer):</font></b> The semen of a Zav has 
               Tum'as Maga, but not Masa;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehoshua says, it has even Masa, for it surely 
               has drops of Zivah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yehoshua says that it has Tum'as Masa only 
                    because it has drops of Zivah, but semen itself 
                    lacks Tum'as Masa!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> It is the following Tana:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Stricter Tum'os, i.e. the Zivah, spit, 
               semen and urine of a Zav, and the blood of a Nidah, 
               Tum'as Maga and Masa.
<br>
<br>

sjt:
<font><b>1) THE ISOLATION OF MIRIAM</b></font><b>
<br>QUESTION:</b> The verse teaches a logical reason, based on a Kal va'Chomer, for why Miriam was sent out of the encampment of the Jewish people for seven days: 'v'Aviha Yarok Yarak b'Faneha ha'Lo Sikalem Shiv'as Yamim' -- 'If her father would have rejected her, would she have not been scorned (and isolated) for seven days' (Bamidbar 12:14), then certainly when Miriam was rejected by the Shechinah she should be isolated for seven days (but not for fourteen days, because of the rule of 'Dayo la'Vo Min ha'Din Liyihos k'Nidon'). It is clear from the verse that it was already known that a person must be isolated for seven days when his father rejects him. Where, though, was this concept mentioned elsewhere in the Torah? What is the source for this form of chastisement?
</p><p>
<b>ANSWERS:</b> It is clear from the context of the verse that the seven-day rejection period to which the verse refers is not related to the appearance of Tzara'as, but to the fact that Hash-m showed disfavor towards Miriam. The reason Miriam would have to remain in isolation had her father shown her disfavor seems to be related to the laws of Niduy and Cherem, forms of excommunication. The <b>DA'AS ZEKENIM MI'BA'ALEI HA'TOSFOS</b> (Bamidbar 12:14) suggests two sources in the Torah for a seven-day period of isolation for a person who was placed in Cherem. 
</p><p>
(a) One who is excommunicated is treated like an Avel, a mourner (see Moed Katan 15b), who mourns for seven days. The Torah mentions such a mourning period after the death of Yakov Avinu (Bereishis 50:10). Although the Halachah of seven days of Aveilus cannot be learned from Yakov Avinu since those days were observed before the giving of the Torah (as the <b>RAMBAM</b> writes in the beginning of Hilchos Aveilus), nevertheless the Rambam writes that Moshe Rabeinu instituted seven days of Aveilus for the Jewish people. The Midrash (Bereishis Rabah 100) mentions an allusion to these days of mourning from Moshe Rabeinu's instructions to Aharon after the death of Nadav and Avihu (Vayikra 8:33, 35). Accordingly, it was already known that a Menudeh, like an Avel, must remain in isolation for seven days.
</p><p>
(b) The Gemara in Sotah (13a) explains that Miriam prophesied before Moshe was born that her mother would beget a child who would grow up to be the leader of the Jewish people and lead them out of Mitzrayim. When the family was forced to send away Moshe in a small vessel on the river, Amram, Miriam's father, tapped her on the head and rebuked her, saying, 'Now what will be with your prophecy?' The Gemara there concludes that this is what the verse means that 'his sister (Miriam) stood from afar to know what would happen to him (Moshe)' (Shemos 2:4).
</p><p>
The Ba'alei ha'Tosfos explain that since Miriam's father was the leading sage of the generation (as the Gemara there says), when he rebuked her she accepted upon herself the state of 'Nezifah,' to conduct herself like a person who was shunned by a leading Torah authority. (Nezifah is a less-severe form of isolation than Cherem. The Gemara in Moed Katan (16a) in fact derives the laws of Nezifah at the hands of a Chacham from the verse describing Miriam's isolation.) When the verse says that Miriam 'stood from afar,' it describes the way that Miriam conducted herself during her period of Nezifah: she isolated herself. The other case in which the Torah mentions that someone must stand from afar is the case of a Metzora who is sent away from his home (Vayikra 14:8) for seven days during the process of becoming Tahor from his Tum'ah. Therefore, Miriam also stayed away from her home for seven days. This is the source that the Nezifah of a Chacham lasts for seven days.
</p><p>
The Ba'alei ha'Tosfos add that according to this explanation the words of the verse are very clear. Why does the verse say that if one's <i>father</i> is upset with him, he must be isolated for seven days? If it is alluding to the Nezifah of a Chacham, it should say that if one's <i>teacher</i> is upset with him, he must be isolated. In its straightforward reading, the word 'father' may need to be interpreted as 'teacher' (as the verse uses the term with regard to Eliyahu ha'Navi; see Melachim II 2:12). However, according to the second explanation of the Ba'alei ha'Tosfos, it indeed is appropriate for the verse to mention Miriam's father, since he was the Chacham who gave her Nezifah and sent her away for seven days.
</p><p>


<font><b>2) ISOLATION FOR BEING SHUNNED BY THE SHECHINAH</b></font><b>
<br>QUESTIONS:</b> The verse teaches a logical reason, based on a Kal va'Chomer, for why Miriam was sent out of the encampment of the Jewish people for seven days: 'v'Aviha Yarok Yarak b'Faneha ha'Lo Sikalem Shiv'as Yamim' -- 'If her father would have rejected her, would she have not been scorned (and isolated) for seven days' (Bamidbar 12:14), then certainly when Miriam was rejected by the Shechinah she should be isolated for seven days.
</p><p>
The Gemara explains that a Kal va'Chomer is necessary in order to teach that not only when a Chacham is upset with someone must the person stay away for seven days, but even when Hash-m is upset with someone, he must 'stay away' for seven days. It is clear from this Gemara that had the verse not learned this through a Kal va'Chomer (or, according to the Chachamim who argue with Rebbi Tarfon, from the words 'Sikalem Shiv'as Yamim'), one would not have known that a person must conduct himself in Nezifah when the Shechinah shows disfavor to him.
</p><p>
(a) Why is a verse needed to teach that the Shechinah is the same as a Rav or Chacham? Why would one have thought that the Halachah of Nezifah is limited to a mortal master? Hash-m is everyone's Master, and thus the Halachah of Nezifah from the Shechinah should be known without a Kal va'Chomer! (<b>LECHEM ABIRIM</b>, Mahadura Kama)
</p><p>
(b) Why was it necessary to derive through a Kal va'Chomer that Miriam must remain outside of the camp for seven days because the Shechinah was upset with her? She should have had to remain outside of the camp even if the Shechinah did not shun her, because she was a Metzora as the verse describes! (<b>CHIDUSHEI RABEINU MOSHE KAZIS</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) Perhaps the Gemara assumes that Nezifah is a practical reaction only to being shunned by a mortal Chacham. As a result of Nezifah, one must distance himself from the Chacham for seven days. A person cannot distance himself from the Shechinah, since wherever a person goes he remains in the presence of the Shechinah. Therefore, one might have thought that it is not necessary for one to distance himself from the people around him either. The Gemara therefore derives through a Kal va'Chomer that if a person is punished with isolation when he is shunned by a mortal Chacham, then certainly he deserves to be punished when he is shunned by the Shechinah.
</p><p>
(b) <b>RABEINU MOSHE KAZIS</b> answers that if not for the fact that Miriam deserved to be isolated due to the honor of the Shechinah, Hash-m would have healed her before any Kohen (or Hash-m Himself; see Zevachim 102a) would have pronounced her to be a Metzora. In such a case, a person does not have to be isolated and none of the Halachos of Metzora apply. The Kal va'Chomer explains why Hash-m decided to let her remain a Metzora and become declared as a Metzora Musgar and, as a result, be isolated for seven days. Hash-m made her a Metzora in order to have her suffer the isolation for being shunned by the Shechinah.
</p><p>
Alternatively, even though Miriam became a Metzora Muchlat (as the Gemara in Zevachim 102a implies), Moshe Rabeinu immediately prayed for her (Bamidbar 12:13) and she was healed as a result. The Halachah is that when a Metzora who was Muchlat loses the Simanei Tum'ah that made him Muchlat (see Background to Kidushin 35:23), he immediately becomes permitted to re-enter the camp and he may start the seven day process of becoming fully Tahor. (The Mishnah teaches that he is required to remain only outside of his place of residence, as derived from Vayikra 14:8.) (M. Kornfeld)
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps the Tana only says so because semen 
          has drops of Zivah in it!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> If so, he would have taught semen next to 
          Zivah. Rather, it was taught next to spit, for he learned 
          it from a Kal va'Chomer from a Zav's spit.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE TUM'AH OF A MAT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Acha mi'Difti):</font></b> The Tana of the following 
          Beraisa does not apply Dayo even when it would not cause 
          that nothing is learned from the Kal va'Chomer!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A Kal va'Chomer teaches that a mat can 
               receive Tum'as Mes (i.e. of a corpse). Small flasks 
               do not receive Tum'ah from a Zav (the opening is too 
               small to stick his finger inside), but they receive 
               Tum'as Mes;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A mat receives Tum'ah from a Zav, all the more so 
                    it receives Tum'as Mes!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Summation of question:</font></b> The Tana learns both 
               Tum'as Erev (for which it suffices to immerse it in 
               a Mikvah, and it is fully Tahor at nightfall), and 
               seven-day Tum'ah (which requires sprinkling with 
               water with ashes of the red heifer)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He should say learn Tum'as Erev from the Kal 
                    va'Chomer, and Dayo should prevent learning 
                    seven-day Tum'ah!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> Really, the Tana learns that a mat 
          receives Tum'as Erev from Sheratzim (rodents) from the 
          Kal va'Chomer:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Small flasks do not receive Tum'ah from a Zav, 
               but they receive Tum'as Sheratzim (since very small 
               rodents can enter them);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A mat receives Tum'ah from a Zav, all the more so 
                    it receives Tum'as Sheratzim!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> From where does he learn Tum'as Mes of a mat?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> It says 'a garment or leather' regarding Tum'as 
          Sheratzim and also regarding Tum'as Mes. Just like a mat 
          receives Tum'as Sheratzim, it receives Tum'as Mes.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Assertion:</font></b> We must say that the words 'a garment or 
          leather' are extra only to teach the Gezeirah Shavah. If 
          not, we could refute the teaching!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A lentil's volume of a Sheretz is Metamei, but an 
               olive's volume of a Mes is needed to be Metamei 
               (this shows that Tum'as Sheratzim is broader. 
               Perhaps mats only receive Tum'as Sheratzim, but 
               Tum'as Mes.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Confirmation:</font></b> Indeed, the words are extra.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Sheratzim are equated to semen 'a man who will 
               have a seminal emission... a man who will touch a 
               Sheretz.'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> It says about semen 'any garment and any 
          leather that semen it will be on (will be Tamei).' Why 
          did the Torah write 'a garment or leather' regarding 
          Sheratzim? (We could have learned from semen!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The words 'a garment or leather' written 
          regarding Sheratzim are free for the Gezeirah Shavah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> We showed that 'a garment or leather' written 
          regarding Sheratzim is extra. This suffices for the 
          opinion that does not challenge a Gezeirah Shavah if (the 
          word(s) of) one side is extra;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that challenges it 
               unless both sides are extra, how can we answer?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The words 'a garment or leather' written 
          regarding Tum'as Mes are also free.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Tum'as Mes is equated to semen - 'anyone who will 
               touch someone who is Tamei Mes, or a man who will 
               have a seminal emission';
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> It says about semen 'any garment and any 
          leather that semen will be on it (will be Tamei).' Why 
          did the Torah write 'a garment or leather' regarding 
          Tum'as Mes?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The words are free for the Gezeirah Shavah.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> This is like the opinion that when we learn a 
          law from another topic, the law is governed by rules of 
          its own realm. (I.e. when we learn from semen (Rashi, 
          according to Maharsha; Maharshal - from Sheratzim) that 
          Tum'as Mes applies to a mat, we say that it is like all 
          things that receive Tum'as Mes, it can receive seven-day 
          Tum'ah);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that when we learn a law 
               from another topic, we totally learn from that topic 
               (i.e. when we learn from semen or Sheratzim that 
               Tum'as Mes applies to a mat, we learn only Tum'as 
               Erev, which applies to Sheratzim), how do we learn 
               seven-day Tum'ah?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> 'You will wash your clothing on the 
          seventh day' - no Tum'ah of Mes is less than seven days.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>SHEN AND REGEL ARE EXEMPT IN A RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Suggestion:</font></b> A Kal va'Chomer should obligate Shen and 
          Regel in a Reshus ha'Rabim!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Keren only pays half-damage in the victim's 
               premises, and it is liable in a Reshus ha'Rabim. 
               Shen and Regel pay full damage in the victim's 
               premises. All the more so they should be liable in a 
               Reshus ha'Rabim!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'It will consume in another's field' - not 
          in a Reshus ha'Rabim.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>VERSES THAT TEACH NOT TO MAKE A KAL VA'CHOMER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> We wanted to show that Shen and Regel should 
          pay half damage, not full damage! (Perhaps the verse 
          teaches that they pay full damage only in the victim's 
          premises!)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> 'They will divide its value (of an ox that 
          gored, to pay half-damage)', not of another (i.e. Shen or 
          Regel).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Suggestion:</font></b> A Kal va'Chomer should teach that Shen and 
          Regel pay only half-damage in the victim's premises!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Keren is liable in a Reshus ha'Rabim, yet it only 
               pays half-damage in the victim's premises. Shen and 
               Regel are exempt in a Reshus ha'Rabim, all the more 
               so they should pay only half-damage in the victim's 
               premises!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'He will pay' - full payment.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Suggestion:</font></b> A Kal va'Chomer should exempt Keren in a 
          Reshus ha'Rabim!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shen and Regel pay full damage in the victim's 
               premises, yet they are exempt in a Reshus ha'Rabim. 
               Keren pays only half-damage in the victim's 
               premises, all the more so it should be exempt in a 
               Reshus ha'Rabim!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection (R. Yochanan):</font></b> 'They will divide' - half-
          damage (of Keren) is the same in a Reshus ha'Rabim and in 
          the victim's premises.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Suggestion:</font></b> A Kal va'Chomer should teach that man pays 
          Kofer (when he kills)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An ox does not pay the four damages (other than 
               Nezek, i.e. pain,...), yet it pays Kofer. Man pays 
               the four damages. All the more so he should pay 
               Kofer!
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Rejection 'Like all that will be placed on him (a man 
          whose ox killed, but Kofer is)', not (placed) on a 
          murderer.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Suggestion:</font></b> A Kal va'Chomer should teach that an ox 
          pays the four damages!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Man does not pay Kofer, yet he pays the four 
               damages. An ox obligates its owner to pay Kofer, all 
               the more so it should be liable in the four damages!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection:</font></b> '(The four damages are for) a man (who 
          damages) his fellowman', not for an ox that damages a 
          man.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IS THERE KOFER FOR REGEL?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If an animal trampled on a baby in the 
          victim's premises, does it pay Kofer?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we equate it to Keren? After an animal gores 
               two or three times, this becomes its nature, and it 
               pays Kofer. It is an animal's nature to trample, so 
               there is Kofer also for this!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps Kofer applies only to Keren, in which 
               it intended to damage?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Beraisa - R. Tarfon):</font></b> If Reuven brought his ox 
          into Shimon's yard without permission, and it killed 
          Shimon, the ox is killed. Reuven pays full Kofer, whether 
          the ox was Tam or Mu'ad.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> From where does R. Tarfon learn full Kofer 
          (for a Tam in the victim's premises)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He holds like R. Yosi ha'Glili, who 
               says that a Tam pays half-Kofer in a Reshus 
               ha'Rabim. A Kal va'Chomer from teaches that it pays 
               full Kofer in the victim's premises.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This shows that Kofer applies to Regel! (He 
               learns from Regel, which is exempt in Reshus 
               ha'Rabim, and pays full Kofer in the victim's 
               premises.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Simi of Nehardai):</font></b> No, the Kal va'Chomer 
          is from (standard) damages of Regel.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> We cannot learn from damages of Regel, for 
          damages apply to fire (and Kofer does not)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from damages of Regel for concealed 
          things. Fire is exempt for such damage.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> We cannot learn from damages of Regel of 
          concealed things, for such damages apply to a pit (and 
          Kofer does not)!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from damages of Regel to Kelim. A pit 
          is exempt for such damages.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Such damages apply to fire (like we asked 
          above)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from damages of Regel to concealed 
          Kelim (such damages do not apply to pits or fires).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection:</font></b> Such damages apply to man (who does not pay 
          Kofer)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Indeed, he learns from Kofer of Regel. This 
          teaches that Kofer applies to Regel.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Support (R. Acha mi'Difti):</font></b> Presumably, this is 
          correct. If we learned from damages of Regel, we could 
          ask that Kofer does not apply to Regel!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>UNINTENTIONAL DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Man is always Mu'ad, whether he damaged 
          b'Shogeg or b'Mezid (with or without intent), awake or 
          asleep;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If (b'Shogeg) he blinded a man's eye, or broke 
               Kelim, he pays full damage.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> The Mishnah teaches about blinding 
          an eye, similar to breaking Kelim. Just like the four 
          payments do not apply to Kelim, also to blinding 
          (b'Shogeg)!
<br>
<br>

sjt:
<font><b>1) THE EXEMPTION FOR 'ADAM HA'MAZIK' FROM PAYING 'KOFER'</b></font><b>
<br>QUESTIONS:</b> The Gemara derives the exemption of a person who kills another person from paying Kofer from the verse, 'Kofer Yushas Alav' (Shemos 21:30), which teaches that one pays Kofer only when his ox kills a person but not when a person kills a person. <b>RASHI</b> writes that the Gemara refers to a situation in which one person killed another person b'Mezid, intentionally, but he did not receive Hasra'ah (warning from witnesses) before the act and, therefore, he is not Chayav Misah or Chayav Galus.
</p><p>
Rashi seems to be bothered by the obvious question: why would one think that a person is liable to pay Kofer for killing someone if he is Chayav Misah? The rule is that when a person is Chayav Misah he is exempt from any concomitant monetary obligations because of the rule of 'Kam Lei bid'Rabah Minei.'
</p><p>
Rashi answers that there are times when a person who kills is not Chayav Misah or Galus. 'Kam Lei bid'Rabah Minei' applies only when the person actually receives the punishment of Misah or Galus, but not when the person <i>could</i> have been punished had he done the act b'Mezid with Hasra'ah.
</p><p>
Rashi's words are difficult to understand for a number of reasons.
</p><p>
Later in Bava Kama (35a), Tana d'Vei Chizkiyah teaches that whenever a person commits a sin which would have caused him to be killed had he done it b'Mezid and with Hasra'ah, he is exempt from any concomitant monetary obligations even though, in this instance, he did it b'Shogeg without Hasra'ah and is not actually killed. Rashi himself cites Tana d'Vei Chizkiyah in a number of places in Bava Kama (53b, DH O Dilma Bor; 61b, DH Hayah Gedi). (<b>TOSFOS RABEINU PERETZ</b>)
</p><p>
Moreover, Rashi later (53b, loc. cit.) seems to ignore this Gemara and writes instead that a person is exempt from paying Kofer because of Tana d'Vei Chizkiyah's principle and 'Kam Lei bid'Rabah Minei,' and not because of the verse of 'Alav'! (See also <b>RIVA</b> as cited by Tosfos to 4a, DH k'Re'i.) (<b>PNEI YEHOSHUA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> writes that Rashi here explains the Gemara according to those who do not accept the ruling of Tana d'Vei Chizkiyah (see Rashi to 42a, DH Atu b'Ason) because according to Tana d'Vei Chizkiyah it is not necessary to derive from 'Alav' that Adam ha'Mazik does not pay Kofer. When Rashi later (53b) cites 'Kam Lei bid'Rabah Minei' as the reason for why a person who kills is exempt from Kofer, he is explaining the source according to Tana d'Vei Chizkiyah (whose opinion is accepted as the Halachah). 
</p><p>
(b) The <b>PNEI YEHOSHUA</b> writes that Rashi maintains that 'Kam Lei bid'Rabah Minei' cannot exempt a person from a payment that is a Kaparah, an atonement, but only from a payment that is an ordinary payment of compensation. (Such a view is recorded by <b>TOSFOS</b> to Kesuvos 30b, DH Zar.) Rashi explains that at this point the Gemara thinks that the payment of Kofer is a payment of Kaparah, atonement, and therefore the rule of 'Kam Lei bid'Rabah Minei' and Tana d'Vei Chizkiyah cannot exempt a person from such a payment. That is why the verse of 'Alav' is necessary to exempt a person who killed from paying Kofer.
</p><p>
Why, then, does Rashi find it necessary to explain that the Gemara is discussing a case of a person who is not punishable with death or Galus for his act of killing? Even if he would be punishable, he still should pay Kofer! The Pnei Yehoshua answers that Rashi considers it illogical to suggest that a person should be killed or sent to Galus and still be required to pay Kofer for atonement. Killing, or Galus, already provides atonement (see Makos 2b). That is why Rashi explains that the Gemara assumes that a killer pays Kofer only if he receives no other punishment.
</p><p>
The Pnei Yehoshua explains that according to this interpretation, the Gemara concludes that a killer <i>is</i> exempt from Kofer because Kofer indeed is comparable to a monetary obligation and is not just an atonement, and therefore the rule of 'Kam Lei bid'Rabah Minei' applies. That is why Rashi later (53b) writes that it is the rule of 'Kam Lei bid'Rabah Minei' which exempts a killer from paying Kofer; 'Alav' teaches that 'Kam Lei' applies in such a case.
</p><p>
<b>TOSFOS</b> (DH v'Yehei, and 4a, DH k'Re'i) and other Rishonim explain the Sugya differently from Rashi. They explain that 'Kam Lei bid'Rabah Minei' cannot exempt a person from Kofer because it exempts a person only from payments that are not related to the sin for which the person is punished with Misah. Kofer is paid as compensation for the life of the person who was killed, and therefore the Chiyuv Misah for killing that person cannot cancel the obligation of payment that the killing incurred.
</p><p>
Several reasons may be given to explain why Rashi does not accept this interpretation. First, the Gemara in Kesuvos (37b) asks why a verse is needed to exempt a killer from Kofer, and why the exemption is not derived from the rule of 'Kam Lei bid'Rabah Minei.' The Gemara there clearly implies that one is exempt from Kofer even in the event of a Chiyuv Misah (see Tosfos here, DH Alav).
</p><p>
Second, the Gemara (4a) explains that the Mishnah means that had the Torah written 'Shor' one would not have been able to learn from it that Adam ha'Mazik is liable to pay for damages, since the obligation incurred by the damages done by a Shor is more severe than that of an Adam ha'Mazik, because one pays Kofer for a death caused by a Shor but not for a death caused by an Adam. If an Adam does not pay Kofer only because of the verse written with regard to Shor, then the Gemara's logic is circular: had the Torah written only Shor, from which we would have derived that Adam ha'Mazik is liable, the laws of Adam would have been exactly like the laws of Shor and Adam would <i>not</i> have been excluded by the verse of 'Alav,' as <b>TOSFOS RABEINU PERETZ</b> asks. According to Rashi's approach, the Gemara there follows the opinion of Tana d'Vei Chizkiyah, and it states that even if the obligations of Adam are derived from Shor, a man who killed would not be liable to pay Kofer because of Tana d'Vei Chizkiyah. (See Tosfos there, DH k'Re'i, in the name of the Riva.)
</p><p>


<font><b>2) THE EXEMPTION FOR OTHER 'MAZIKIN' FROM PAYING KOFER</b></font><b>
<br>QUESTION:</b> The Gemara explains that Adam ha'Mazik who kills another person does not pay Kofer because the verse of 'Alav' excludes Adam. The Gemara asks whether or not one pays Kofer for a death caused by Regel.
</p><p>
What is the Gemara's question? The Gemara has already derived from 'Alav' that one pays Kofer only for a Shor that kills with Keren, and not for any other type of damage.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ROSH</b> (2:15) explains that 'Alav' certainly excludes from the obligation of Kofer any damage not caused by a person's <i>animal</i>. The Gemara's question is whether 'Alav' excludes even animals that damage in a way other than Keren, or whether it excludes only non-animal Mazikin, but one <i>does</i> pay Kofer for Shen and Regel just as one pays Kofer for Keren. The Gemara's question applies to Shen as well as to Regel (see also Rashi, DH mi'Kal va'Chomer). This is also the intention of Tosfos (DH Regel).
</p><p>
(b) <b>RASHI</b> in a number of places clearly disagrees with the answer of the Rosh. According to the Rosh, Esh and Bor are excluded from the payment of Kofer because of the verse of 'Alav.' Rashi (10a, DH Mah) writes that Esh is exempt only because of 'Kam Lei bid'Rabah Minei.' (This follows the view of Rebbi Yochanan that 'Isho Mishum Chitzav,' lighting a fire is like shooting an arrow, and a person is Chayav Misah if his fire kills someone (see 22b), as the <b>TOSFOS RABEINU PERETZ</b> and <b>RASHASH</b> (10a) point out. According to this interpretation, it seems that Reish Lakish -- who maintains that 'Isho Mishum Mamono' -- would learn that the Beraisa exempts Esh from Kofer only when the person who was burned was not bound and was able to run away. Since he could have run away but did not, the one who lit the fire is not responsible for killing him; see Rashi to 10a, DH Mah.) 
</p><p>
With regard to Bor, Rashi writes in a number of places (see end of 9b; 28b, DH Shor; 53b, DH Adam) that one is exempt from Kofer when his Bor kills a person only because of the verse that teaches ''Shor'' v'Lo Adam.' (This answers the questions of Tosfos to 9b, DH Mah, and 10a, DH she'ha'Shor.)
</p><p>
It seems that Rashi learns that the Derashah of ''Alav' v'Lo Al ha'Adam' excludes <i>only</i> Adam from paying Kofer; it does not exclude any other Mazik from Kofer. It is clear, therefore, why the Gemara asks whether one pays Kofer for Regel, since 'Alav' certainly is not excluding Regel from Kofer. The question is only whether the obligation of Kofer for Regel can be learned from Keren through a Meh Matzinu.
</p><p>
Why, according to Rashi, does 'Alav' exclude only Adam from Kofer? Where does the verse imply that it excludes Adam and not other Mazikin? Rashi (DH Alav) seems to address this question. Rashi writes that 'Alav' teaches that one pays Kofer for Shor, but for Adam one does not pay Kofer 'but rather Misah or Galus.' Rashi's words are difficult to understand. Why does Rashi write that one is punished with Misah or Galus instead of Kofer? Rashi earlier explains that 'Alav' is needed to teach that Adam does not pay Kofer only when he is <i>not</i> Chayav Misah or Galus! Why, then, does Rashi mention here that the verse excludes Adam from Kofer because Adam receives Misah or Galus?
</p><p>
It seems that Rashi understands that 'Alav' teaches that the obligation of Kofer is given only for the type of killing which never can incur any other punishment. Hence, it can be learned from 'Alav' that Adam -- whose act of killing <i>can</i> incur Misah or Galus -- cannot incur Kofer. However, for Bor and Regel, which do not bear the punishment of Misah or Galus, it is possible for one to be obligated to pay Kofer.
</p><p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Chizkiyah):</font></b> 'A wound Tachas (in place of) a 
          wound' obligates for Shogeg like for Mezid, for Ones like 
          for willing.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> We need that verse to obligate for pain, even 
          when paying Nezek (loss in permanent earning potential)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Had it said 'Petza b'Patza' (a wound for a 
          wound), we would have learned only one thing. Rather, it 
          says 'Petza Tachas Patza', to teach both.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rava):</font></b> If a man did not know that there was a stone in 
          his lap, and he stood up, and it fell:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding damage, he pays Nezek, but not the four 
               damages (pain, medical expenses, Sheves, and 
               embarrassment);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding Shabbos, the Torah forbade only 
               intended Melachah;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Regarding exile (if it killed a man), he is 
               exempt;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Regarding his slave (if the stone destroyed a 
               limb of the slave), R. Shimon ben Gamliel and 
               Chachamim argue about this.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> If a slave asked his master (a doctor) 
                    to paint his eye (to cure it) or dig around his 
                    tooth, and the master blinded the eye or 
                    knocked out the tooth, the slave goes free;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  R. Shimon ben Gamliel says, 'and he will 
                    destroy it' he goes free only if the master 
                    intended to destroy it.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	If a man knew about the stone in his lap, but forgot 
          and stood up, and it fell:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding damage, he pays Nezek, but not the 
               other four damages;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding exile, he is exiled - 'bi'Shgagah' 
               implies that he once knew;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Regarding Shabbos, he is exempt;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Regarding his slave, R. Shimon ben Gamliel and 
               Chachamim argue.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	If a man intended to throw a stone two Amos and it went 
          four Amos:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding damage, he pays Nezek, but not the four 
               damages;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding Shabbos, the Torah forbade only 
               intended Melachah;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Regarding exile, 'who did not lie in wait', 
               excludes this case (from being executed; rather, he 
               is exiled; alternatively - he is not exiled).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Regarding his slave, R. Shimon ben Gamliel and 
               Chachamim argue about this.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	If a man intended to throw a stone four Amos and it 
          went eight Amos, the law is the same as above, except for 
          Shabbos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding Shabbos, if he did not care where it 
               lands, he is liable. If not, he is exempt.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>IS ONE LIABLE FOR DAMAGING SOMETHING DESTINED TO BREAK?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If Reuven threw a Kli off the roof, and Shimon 
          broke it in mid-air with a stick, Shimon is exempt, for 
          it was already (destined to be) broken.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If Reuven threw Levi's Kli off the roof, and 
          there were pillows on the ground, and David removed the 
          pillows, or even if Reuven removed them, he is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> When he threw it, his arrows ceased (it was not 
          destined to break, therefore, he is exempt. Rashi - 
          removing the pillows is Gerama (causation), which is 
          exempt. Magid Mishneh - Rabah did not discuss David's 
          liability.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If Reuven threw a baby off the roof; and 
          Shimon killed the baby in mid-air with a sword, R. 
          Yehudah ben Beseira and Chachamim argue about this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If 10 men hit Reuven, each with a 
               different stick, and he died, whether they hit him 
               at the same time or one after the other, they are 
               exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah ben Beseira says, if they hit him one 
               after the other, the last one is liable, for he made 
               him die sooner.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PEOPLE WHO FELL AND DAMAGED OR WERE DAMAGED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	If the baby landed on the horns of an ox and died, R. 
          Yishmael (son of R. Yochanan ben Berokah) and Chachamim 
          argue about whether or not the owner pays Kofer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'He will give redemption of his soul' 
               - the value of the victim (here, since the baby was 
               destined to die, he has no value, so there is no 
               Kofer);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yishmael says, the owner of the ox pays his 
               own value (so he pays Kofer).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If a man fell off a roof (in a normal wind) 
          and landed on a woman, he pays four damages. If she was 
          his Yevamah (and he had Bi'ah due to the fall), he does 
          not acquire her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He pays Nezek, pain, medical expenses and 
               temporary Sheves, but not embarrassment.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> One pays for embarrassment only if he 
                    intended to damage.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If one fell off a roof in an abnormal wind and 
          damaged, he pays Nezek, but not the four damages. If he 
          fell in a normal wind, he pays four damages, but is 
          exempt for embarrassment;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he turned (in midair to land on the person), 
               he is liable even for embarrassment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Obviously, 'she stuck out her hand' to 
               grab (the private parts of the man fighting her 
               husband)! It says 'and grabbed' to teach that intent 
               to damage obligates payment for embarrassment, even 
               without intent to embarrass.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LIABILITY FOR BURNING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If Reuven put a coal on Shimon's heart, and 
          Shimon died from it, Reuven is exempt (because Shimon 
          should have removed it).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he put it on Shimon's clothing and they were 
               burned, Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rava:</font></b> We learn both of these from Mishnayos:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven held Shimon in a fire or in 
               water so that Shimon could not escape, Reuven is 
               liable;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he pushed him in, and Shimon could have 
                    escaped, Reuven is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven told Shimon 'tear my 
               garment' or 'break my jug', and Shimon did so, he is 
               liable;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he said 'on condition that you will be 
                    exempt', he is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question #1 (Rabah):</font></b> If Reuven put a coal on the heart 
          of Shimon's slave; and the slave died, is this like 
          putting the coal on Shimon, or like on Shimon's money?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question #2 (Rabah):</font></b> If it is not like putting the coal 
          on Shimon, if he puts it on Shimon's ox, what is the law?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> The slave is like Shimon (for he knows 
          to remove it). The ox is like his money (it lacks 
          understanding).
<br>
<br><b>PEREK HA'MENI'ACH</b>
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>INTERCHANGEABLE WORDS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven left his Kad (jug) in a Reshus 
          ha'Rabim, and Shimon came and tripped on it, and it 
          broke, Shimon is exempt from paying for it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon was hurt by it, (Reuven,) the owner of 
               the Chavis (barrel) must pay the damage.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question #1:</font></b> Why does it first call it a jug, 
          and then call it a barrel?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question #2 (Mishnah #2):</font></b> If Levi was walking with a 
          barrel, and Yehudah with a beam, and the jug broke when 
          it hit the beam, Yehudah is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There it calls it a barrel, and then a jug!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question #3 (Mishnah #3):</font></b> If Levi was carrying a barrel 
          of wine and Yehudah was carrying a jug of honey, and 
          Yehudah's barrel cracked and Levi spilled out his wine 
          and saved the honey, he is paid only like a worker (he is 
          not compensated for the wine he sacrificed).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> First it calls it a jug; and later it calls it a 
               barrel!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Papa - to all three questions):</font></b> The two 
          words are interchangeable.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why does the Tana bother to teach this?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It pertains to commerce.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If in this place a jug is not called a barrel, 
               nor vice-versa, one must give what the buyer 
               requested!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, most people call a jug 'Kad' and a 
          barrel 'Chavis'. A minority of people call a barrel 'Kad' 
          and a jug 'Chavis'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that we follow the 
               majority (i.e. a buyer who asked for a Chavis may 
               demand a barrel);
<br>
<br>

sjt:
<font><b>1) HASTENING A DEATH</b></font><b>
<br>QUESTION:</b> The Gemara teaches that Rebbi Yishmael (beno Shel Rebbi Yochanan ben Berokah) and the Chachamim disagree in a case in which a person throws a Tinok from a roof and it becomes imbedded upon the horns of an ox before it reaches the ground. Rebbi Yishmael, who maintains that the payment of Kofer (which is paid when one's animal kills a person) is 'Demei Mazik' (the value of the life of the Mazik), will rule that the owner of the ox is liable to pay for the life of the Tinok. The Chachamim, who maintain that Kofer is 'Demei Nizak' (the value of the life of the victim), will rule that the owner of the ox is exempt. <b>RASHI</b> explains that according to the Chachamim, the owner of the ox is exempt from Kofer because the Tinok has no value; even if the ox would not have killed it, it would have died upon hitting the ground, and thus it was considered dead at the time that the ox gored it.
</p><p>
Why, though, should the owner of the ox be liable even according to Rebbi Yishmael? The Gemara earlier states that if a Tinok is thrown from a roof and it falls upon a sword held by a person, the Chachamim exempt the person holding the sword because he merely hastened the death of the Tinok; without him, the Tinok still would have died. The law is that whenever the owner of an ox would be exempt from Misah for killing in a certain way, an ox which kills in that manner is also exempt from Misah (44b). Rabah teaches (43a) that whenever the ox is exempt from Misah, the owner is exempt from Kofer. How can Rabah himself, who is the one who teaches the ruling here, state that according to Rebbi Yishmael the owner of the ox <i>will</i> be liable to pay Kofer even though the ox merely hastened the death of the Tinok, and it was not the primary cause of the death? (<b>SHITAH MEKUBETZES</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SHITAH MEKUBETZES</b>, <b>TALMID HA'RASHBA</b>, <b>PNEI YEHOSHUA</b>, and <b>RASHASH</b> explain that according to Rashi, Rabah must be expounding upon the opinion of Rebbi Yehudah ben Beseirah who argues with the Chachamim and maintains that one <i>is</i> Chayav Misah when one kills the Tinok while it is falling.
</p><p>
(b) <b>RABEINU CHANANEL</b> suggests an entirely different explanation for the words of Rabah, according to which the question does not begin. Rabeinu Chananel explains that it is not the Chachamim who exempt the owner of the ox from Kofer in the Gemara's case, but rather it is <i>Rebbi Yishmael</i>, who maintains that Kofer is 'Demei Mazik,' who exempts the owner of the ox from Kofer. He explains that according to Rebbi Yishmael, Kofer is necessary only when -- had the owner of the ox did what the ox did -- he would have been Chayav Misah. Since the owner of the ox would not have been Chayav Misah for killing the Tinok (as Rabah said in the previous statement, according to the Chachamim who argue with Rebbi Yehudah ben Beseirah), when his ox kills in such a manner he is exempt from Kofer. However, according to the Chachamim who maintain that Kofer is 'Demei Nizak,' Kofer is not related to the sin of the owner of the ox, but rather it is compensation for the Nizak who was killed (this follows the view of Rav Chisda in Makos (2b), and not Rav Papa who maintains that even if Kofer is 'Demei Nizak' it is still an atonement for the sin). Therefore, according to the Chachamim, it will be necessary to pay Kofer even though the act that the ox did by killing the baby is not one that makes the owner Chayav Misah.
</p><p>
(According to this approach, it must be that Rabah, who rules (43a) that the owner does not pay Kofer when the ox is exempt from Misah, follows the opinion of Rebbi Yishmael that Kofer is a Kaparah, an atonement, and that Kofer is paid based on the value of the Mazik. See <b>CHAZON ISH</b>, Bava Kama 2:15.)
</p><p>


<font><b>2) A 'BI'AH' WITHOUT INTENTION</b></font><b>
<br>QUESTION:</b> Rabah teaches that if a man falls from a roof onto his Yevamah, he is not Koneh her. <b>RASHI</b> explains that although Bi'as Shogeg is Koneh a Yevamah, since the man in this case had no intention for an act of Bi'ah at all, he is not Koneh her. Consequently, if one of the other brothers of the man does Ma'amar with the Yevamah, she becomes prohibited to the first brother since he was never Koneh her. 
</p><p>
Why is this the only practical difference that Rashi can find -- that the Ma'amar of the second brother prohibits the Yevamah to the first brother? Rashi should give a more basic practical difference: since the first brother was not Koneh her, any other brother is permitted l'Chatchilah to be Koneh her with Yibum since she is not an Eshes Ish! If none of the other brothers want to perform Yibum, one must perform Chalitzah since the first brother was not Koneh her with his act, and it is not necessary for the first brother to give her a Get. (<b>BIRKAS AVRAHAM</b>)
</p><p>
<b>ANSWER:</b> The Gemara in Yevamos (96b) teaches that the Bi'ah of a nine year-old boy is considered like Ma'amar, even though he is a Katan and cannot have Kavanah for Yibum. Perhaps Rashi learns that the Bi'ah of a nine year-old is also without intention for Bi'ah, since a Katan is unable to have intention for Bi'ah. Nevertheless, the Bi'ah has the status of Ma'amar (which is like a Yibum mid'Rabanan). Rashi therefore learns that when a man falls off a roof onto his Yevamah, that Bi'ah without intention is also considered no less than Ma'amar. Consequently, it will not be permitted l'Chatchilah for any of the other brothers to perform Yibum with her since one brother has already done Ma'amar. Also, it will not suffice to send her away with Chalitzah since, after Ma'amar, a 'Get Yivmin' is required, in addition to Chalitzah. Therefore, Rashi writes that the practical consequence of the man not being Koneh the Yevamah is that if another brother does Ma'amar (or if another brother gives her a Get, Chalitzah, or does Yibum; see Yevamos 50a), she becomes prohibited to the first brother.
</p><p>
Why does Rashi not say that the practical consequence is that she is not Chayav Kares (or Chayav to bring a Chatas) if she lives with someone else after the Yavam falls upon her? The answer is that the Gemara uses the words 'Lo Kanah,' implying that there is a practical consequence regarding the <i>Kinyan</i> of the Yevamah. If the only consequence was the status of the woman, the Gemara would have said that when the man falls upon her, 'she does not become an Eshes Ish.'
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Mishnah teaches that this is not so. In 
               monetary matters, we do not follow the majority.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHEN IS ONE LIABLE FOR TRIPPING?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon came and tripped on it, and it 
          broke, he is exempt from paying for it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why is Shimon exempt? He should look where he 
          walks!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> The case is, Reuven filled the Reshus 
          ha'Rabim with jugs.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> The case is, it was dark.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #3 (R. Yochanan):</font></b> The jug was around a corner, 
          out of his sight.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> The wording of the Mishnah is 
          unlike Rav's explanation!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Rav, why does the Mishnah say 'he 
               tripped'? He should be exempt even if he  broke it 
               b'Mezid!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Zvid):</font></b> Indeed, even if he breaks it, he is 
          exempt. The Mishnah discusses tripping, so the Reisha can 
          teach that if Shimon (tripped and) was hurt, Reuven must 
          pay.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon (intentionally) broke it and got hurt, 
               Reuven would be exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> He brought the damage on himself.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Since the Reisha discusses tripping, also the 
               Seifa discusses tripping.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #4 (R. Aba):</font></b> Shimon is exempt, because normally 
          people do not look where they walk.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	A case occurred in Neharda'a, and Shmuel obligated one 
          who tripped to pay. A case occurred in Pumbedisa, and 
          Rava obligated one who tripped to pay.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Shmuel is consistent with his explanation of the 
          Mishnah.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Inference:</font></b> We can deduce that Rava holds like Shmuel.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection (Rav Papa):</font></b> Perhaps he holds like R. Aba. He
          ruled in a case of Kelim left near the corner of the olive-
          press;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since the owner was allowed to leave his Kelim 
               there (such is the custom), one who walks must watch 
               his step. Since he did not, he must pay.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>WHEN MAY ONE TAKE THE LAW INTO HIS OWN HANDS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> The custom is, one who kicks someone with 
          his knee must pay three Sela'im (for embarrassment 
          alone). For kicking with the foot, he pays five Sela'im; 
          for hitting him with a donkey's saddle, he pays 13.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Chisda):</font></b> How much must one pay for 
          hitting with the handle or blade of a shovel?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection (Rav Nachman):</font></b> We do not obligate 
               people to pay fines in Bavel! What case (do you ask 
               about)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Chisda):</font></b> There were two partners in a 
               pit of water. Each day, one of them would water his 
               field from it. One day, one was using it on his 
               partner's day.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The partner protested, to no avail. He hit the 
               one using it with the handle of a shovel.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> He can hit him 100 times, and he 
          is exempt!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even the opinion that forbids taking the law into 
               one's own hands, admits that one may do so to avoid 
               a loss.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> One may not take the law into his own 
          hands;
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> One may do so.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	All permit when needed to avoid a loss. They argue 
          about when there is no loss;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Yehudah forbids, for he can go to Beis Din!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Nachman permits. Since he acts properly, he 
               need not exert himself to go to Beis Din.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Kahana - Beraisa - Ben Bag Bag):</font></b> Do not 
          enter your friend's property to take what is yours 
          without permission. Perhaps you will appear like a thief 
          to him! Rather, blunt his teeth and say 'I am taking what 
          is mine!'
<br>

sjt:
<p>
<font><b>3) FOLLOWING A 'ROV' FOR MONETARY MATTERS</b></font><b>
<br>QUESTION:</b> The Gemara teaches that 'Ein Holchin b'Mamon Achar ha'Rov' -- we do not follow the majority -- for monetary matters. Accordingly, if most people call a jug, 'Kad,' and a barrel, 'Chavis,' and a seller tells a purchaser that he is selling to him a 'Chavis' and then delivers only a jug ('Kad'), the seller may claim that he calls a jug a 'Chavis' even though most people do not call it such. Elsewhere (46b), the Gemara teaches that Rav and Shmuel disagree about whether we follow Rov in monetary matters. Shmuel teaches that we do not follow Rov for monetary matters. (See <b>TOSFOS</b> and Rishonim here who explain that even Rav agrees that in the case of the Gemara here we do not follow Rov.)
</p><p>
Why should we not follow Rov for monetary matters? The Torah teaches that we follow Rov with regard to all questions of Isur, and even with regard to questions of Dinei Nefashos (taking someone's life) (Chulin 11a, Sanhedrin 69a). Why should Dinei Mamonos be different? (<b>TOSFOS</b>, DH Ka Mashma Lan, and <b>TOSFOS</b> to Sanhedrin 3b, DH Dinei Mamonos)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> in Sanhedrin answers that the Rov which the Gemara here discusses is not as strong as the other instances of Rov which apply even in cases of Dinei Nefashos. If we follow the stronger type of Rov in order to execute a person, we certainly may take someone's money based on that Rov. The Rov of the Gemara here, however, is weaker, and it cannot be used to kill a person or take money. It can be used only to establish the presence or absence of an Isur.
</p><p>
Why, though, is this Rov weaker than a normal Rov?
</p><p>
The <b>SHEV SHEMAITSA</b> (4:6) cites the <b>RAMBAN</b> in Kidushin (50a) who writes that a Rov based on a natural phenomenon is stronger than a Rov based on the way a person chooses to act, because a person can choose to act like the minority. For example, the Gemara teaches that most women are not born sterile, that most oxen are not born as Tereifos, and that most women give birth after nine months and not after seven. All of these cases of Rov are part of the nature of the world and do not depend upon a person's choice. In contrast, the Rov that most people call a jug a 'Kad,' or that most people buy oxen for plowing and not for slaughter, can be superseded by a person's choice, when a person decides that he does want to call a jug a 'Chavis' or to buy an ox in order to slaughter it. The Ramban writes that the Rabanan normally relied even on the weaker type of Rov with regard to Isurim (except under certain circumstances, such as when it is a question of Isur Eshes Ish).
</p><p>
The Shev Shemaitsa explains that this is what Tosfos here means as well. The only Rov that does not affect monetary matters is the weaker Rov, which depends on a person's choice. Such a Rov is also not taken into consideration with regard to Dinei Nefashos. (In 4:7, the Shev Shemaitsa points out that this answer of Tosfos does not seem fully consistent with the Gemara in Bava Basra (93a) which relates the opinion of 'Ein Holchin b'Mamon Achar ha'Rov' to the fact that most animals give birth to live offspring and not to stillborns, which is a natural Rov.) 
</p><p>
(b) <b>TOSFOS</b> here seems to maintain that even when we <i>do</i> rely on a Rov for Dinei Nefashos, we do <i>not</i> rely on it with regard to monetary matters, because with regard to monetary matters a Chezkas Mamon (of the person who is presently in possession of the money) cancels out the Rov of the person trying to take the money.
</p><p>
The Shev Shemaitsa (4:8) asks in the name of his brother why we do not apply the same logic to Dinei Nefashos, since the person being judged has a Chezkas ha'Guf that he is alive and thus deserves to continue in that state, which counters the Rov that says that he is Chayav Misah. (See the answer of the Shev Shemaitsa there.)
</p><p>
Perhaps the Chezkas ha'Guf that the person is alive cannot counter the Rov that says that he is Chayav Misah, because the judges do not decide directly whether he is to be killed or not. Rather, they decide whether or not he did an Aveirah (for which he is Chayav Misah). The fact that he is alive has no bearing on whether he did an Aveirah or not. After the judges determine, based on the Rov, that he committed an Aveirah, with the authority of Beis Din they rule that he is to be killed for committing that Aveirah. Even a Chezkas Mamon cannot negate the ruling of a Beis Din, as Tosfos himself proves from the fact that the Beis Din is able to take money from someone based on the ruling of most (a Rov) of the judges. In contrast to Dinei Nefashos, for monetary matters the Chezkas Mamon comes into account when the judges decide whether or not the person must pay, since the judges' decision centers on whether money should be paid or not (and not on whether a certain act was done or not); they are ruling on the question of 'does this person owe money or not' and not on the question of 'did this person commit a certain act or not.' Therefore, the Chezkas Mamon must be taken into account at the time the judges make their decision, and thus it is able to override the Rov and cause the judges to decide in favor of the one who has the Chezkas Mamon.
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN MAY ONE TAKE THE LAW INTO HIS OWN HANDS? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> Ben Bag Bag holds like Rav 
          Nachman. Chachamim argue, and hold like me!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #2 (R. Yanai):</font></b> 'Blunt his teeth' means legally 
          (in Beis Din)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objections:</font></b> If so, why does it say 'say to him'? It 
          should say 'we say to him'! Why does it say 'I take what 
          is mine'? It should say 'he is taking what is his'!
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	This is left difficult.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven's ox came upon Shimon's 
          ox to kill it, and Shimon removed his ox from underneath, 
          and Reuven's ox fell and died, Shimon is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The case is, Reuven's ox is an 
               established gorer. Shimon did not stand to lose 
               money, for Reuven would have been liable to pay full 
               damage (and still, he may take the law into his own 
               hands)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> No, Reuven's ox is Tam, so Shimon stood to 
          sustain a loss. He would receive only half the damage.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> If Shimon knocked Reuven's ox off 
          Shimon's ox, and Reuven's ox died, Shimon must pay.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven's ox is Tam, why must Shimon pay? (All 
               agree that one may take the law into his own hands 
               to avoid a loss!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> There was no need to knock off Reuven's ox. 
          Shimon should have removed his own ox.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven filled Shimon's courtyard 
          with jugs of wine and oil, Shimon may break jugs on his 
          way out and on his way in. (This shows that one may take 
          the law into his own hands!)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Nachman bar Yitzchak):</font></b> No. It means that he 
          may break jugs on his way to Beis Din, and he may break 
          them when he goes to obtain proofs that he will need in 
          Beis Din.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> (In Yovel (the 50th year), every 
          Yisrael slave goes free, even if his ear was bored 
          through.) If such a slave did not want to leave, and his 
          master was trying to force him to leave, and injured him, 
          the master is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We read 'do not take ransom Lashuv (to return)' 
               like 'la'Shav' (for one who should return. This 
               shows that one may take the law into his own hands!)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the slave is a thief (so perhaps 
          the master will lose).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection:</font></b> Until Yovel, the master had no problem. 
          Suddenly, the slave became a thief?!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Yes! Until Yovel, the slave feared his 
          master. Once Yovel came, he became legally free, so he no 
          longer fears his master.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman Bar Yitzchak):</font></b> The case is, the 
          master married his Yisrael slave to his Shifchah 
          Kena'anis;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Until Yovel, the Yisrael slave was permitted to 
               her. Now he is free, and he is forbidden to her, so 
               the master may act to stop him from sinning.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If Reuven left his jug in a Reshus 
          ha'Rabim, and Shimon came and tripped on it, and it 
          broke, Shimon is exempt from paying for it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If Shimon broke it b'Mezid, he must 
               pay. (This shows that one may not take the law into 
               his own hands!)
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer (Rav Zvid):</font></b> No. Even if he breaks it, he is 
          exempt. The Mishnah wanted to teach in the Seifa that if 
          Shimon tripped and got hurt, Reuven must pay;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon broke it and got hurt, Reuven would be 
               exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> He brought the damage on himself.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Since the Seifa discusses tripping, also the 
               Reisha discusses tripping (but the same applies to 
               breaking).
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> 'You will cut off her hand (of one 
          who grabbed a man by his private parts to save her 
          husband)' means that she must pay.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The case is, she had no other way to 
               save her husband. (This shows that one may not take 
               the law into his own hands.)
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, the case is, she could have saved in 
          another way.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If you will say that if she had no 
               other way to save her husband, she is exempt, why 
               does the Seifa expound 'she sent her hand' to exempt 
               the hand of a Shali'ach of Beis Din? We could have 
               given a case when even she is exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> That is what the Beraisa teaches! It 
               means, if she has no other way to save, her hand is 
               like the hand of a Shali'ach of Beis Din, and she is 
               exempt.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>FIGHTING THE PUBLIC</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If a public path passed through 
          Reuven's field, and Reuven set aside the end of his field 
          for people to walk on, intending to take over the area of 
          the old path, the new path also becomes a Reshus 
          ha'Rabim, and Reuven may not take the area he wanted.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one may take the law into his own hands, he 
               may take a stick and hit anyone who walks on his 
               original property!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav Zvid):</font></b> Chachamim decreed that he does 
          not get back his original property, lest he give a 
          crooked path in its stead.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Rav Mesharshiya):</font></b> The case is, he gave them 
          a crooked path in its stead.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi):</font></b> Any replacement path he gives is 
          considered a crooked path, for it is closer for some 
          people, but further for others.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why does he lose the path he gave? He 
          may say 'take your path, and give me back mine!'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Yehudah taught that one may not damage any 
          public path.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If a farmer left Pe'ah (a corner of 
          the field that one leaves unharvested, for the poor) on 
          one side of his field, and poor people took from the 
          other side, what they took is Pe'ah, and also what he 
          left is Pe'ah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one may take the law into his own hands, let him 
               take a stick and hit anyone who takes the Pe'ah he 
               left! (Tosfos - he planned that if they take 
               elsewhere, it will not be Pe'ah.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Indeed, the Pe'ah he left is his! The 
          Beraisa says 'it is Pe'ah' to teach that it is exempt 
          from Ma'asros;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one was Mafkir his vineyard, and 
               promptly harvested it, he must leave Peret (grapes 
               that drop during harvesting), Olelos (deficient 
               clusters), Shichechah (what is forgotten during 
               harvesting) and Pe'ah for the poor, but he is exempt 
               from Ma'asros.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DAMAGERS LEFT IN THE RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven's jug broke in the Reshus 
          ha'Rabim, and Shimon slipped on the water or was damaged 
          by the shards, Reuven is liable;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, if he intended (this is explained 
          below), he is liable. If not, he is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Rav):</font></b> This applies only if the water dirtied 
          Shimon's clothes;
<br>
<br>

sjt:
<font><b>1) HITTING A PERSON TO STOP HIM FROM SINNING</b></font><b>
<br>OPINIONS:</b> The Gemara teaches that if an Eved Ivri who was Nirtza refuses to leave his master's home upon the arrival of the Yovel year, and the master hits and wounds him in order to make him leave, the master is exempt from liability. The Gemara initially assumes that the master is exempt because he is allowed to take the law into his own hands and make someone leave his house even when he would otherwise incur no loss (since the Eved, if he stays in the master's home, will have to pay the master for any benefit he receives from the master after his term of servitude has ended).
</p><p>
The Gemara concludes that this Halachah is unrelated to taking the law into one's own hands. Rather, during the Eved's term of servitude, the master gave the Eved a Shifchah Kena'anis, and the Eved now wants to remain with her. It is forbidden mid'Oraisa for a freed Eved to live with a Shifchah Kena'anis. The master, therefore, is allowed to hit him in order to chase him away to prevent him from transgressing an Isur d'Oraisa of living with a Shifchah Kena'anis (<b>RASHI</b> DH Isura).
</p><p>
Does this mean that the Halachah permits one to stop any Jew from doing an Aveirah even if it involves physically harming the Jew? If such conduct is permitted, how does the Halachah prevent an unscrupulous Jew from indiscriminately hitting another Jew, claiming that he saw him transgress an Isur?
</p><p>
(a) The <b>ROSH</b> (3:13) concludes, based on this Sugya, that one is permitted to hit another Jew in order to prevent him from transgressing an Isur. Therefore, if one sees a Jew chasing another Jew to hit him, he may use physical force in order to stop the perpetrator. The ruling of the Rosh is cited by the <b>REMA</b> (CM 421:13).
</p><p>
The <b>TERUMAS HA'DESHEN</b> (#414) presents a similar ruling and permits a Jew to hit his or her spouse in order to prevent the spouse from cursing his or her parents. The <b>REMA</b> cites this ruling as a 'Yesh Omrim' (EH 154:3).
</p><p>
This seems to be the opinion of the <b>SHE'ILTOS</b> (#27) who writes that if one sees someone who is not acting properly, he is permitted 'to hate him, to curse him, and to do physical acts to him.' It seems clear from the She'iltos that not only is one permitted to hit a person who is doing an Aveirah now in order to stop him, one is also permitted to hit him in order to prevent him from returning to that Aveirah in the future. This is also clear from the words of the Terumas ha'Deshen. This is also implied by the Gemara here, since the Eved merely <i>wants</i> to reunite with the Shifchah, and the Gemara permits the master to hit him in order to prevent him from performing that Aveirah in the future. This also seems to be the intention of <b>RASHI</b> in Erchin (16b, DH Yachol Lo Yakenu).
</p><p>
According to this view, when the Gemara in Kesuvos (86a) states that if a person refuses to build a Sukah or hold a Lulav on Sukos, 'they beat him until his soul departs,' the Gemara does not refer only to Beis Din. Rather, any person may take such measures in order to stop a person from transgressing a Mitzvah. This is how the <b>NESIVOS HA'MISHPAT</b> (CM 3:1) explains the Gemara. (When the Gemara says 'until his soul departs,' it does not mean that one may actually kill him, since the person is not doing an Aveirah for which one must die instead of transgressing. It means that one may beat him until he is on the verge of death. However, the Nesivos himself in <b>CHAVOS DA'AS</b> (YD 161:6), cited by <b>RAV SHMUEL ROZOVSKY</b> (Chidushim to Bava Basra 10:2) interprets that Gemara as referring specifically to Beis Din, and that it allows them to beat the person to death.)
</p><p>
However, this is not an absolute sanction to hit anyone who acts improperly. The Terumas ha'Deshen permits only a master (in the case of a slave), or someone who is responsible for someone else's actions, to hit the person under his jurisdiction who is acting improperly (when all other measures have been of no avail).
</p><p>
The <b>MAHARSHAL</b> (Yam Shel Shlomo 3:9) writes that only a person who is 'Muchzak b'Kashrus,' well-known to be upright and G-d-fearing, is permitted to use physical force to stop another person from sinning. This may be based on the same principle as described above; a person who is known to be upright, to whom others look for guidance, has a responsibility to ensure that the people around him act properly. 
</p><p>
Why, then, does the Rosh permit hitting someone who is chasing another person to harm him? The Maharshal explains that when the Aveirah that is being done is Bein Adam l'Chaveiro, anyone is permitted to stop the sinner (for the benefit of the person who is being harmed).
</p><p>
How does the Rosh understand the Gemara's proof that a person may take the law into his own hands from the case of the woman who hurts someone who is trying to harm her husband? The Gemara should answer that there, too, the woman is permitted to hurt the person trying to harm her husband only to stop the perpetrator from transgressing the Isur of hitting another Jew!
</p><p>
<b>CHIDUSHEI RAV SHMUEL ROZOVSKY</b> (Bava Basra 10:5) points out that the Rosh himself divides, into two cases, the Halachah of hitting another Jew to prevent him from causing harm to a third Jew. The first case involves a person who sees someone hitting his father, children, or brother, in which case he is allowed to hit the person if he cannot stop him in any other way, because we rule that it is permitted <i>for one to take the law into his own hands</i>. The Rosh continues and says that, similarly, if one sees one Jew trying to harm another Jew and he has no other way to stop him, he is permitted to hit the perpetrator <i>in order to prevent him from doing an Isur</i>. Why does the Rosh give a different reason to allow one to use force in order to save one's close relative? In that case, too, he should say that one is permitted to hit the perpetrator in order to prevent him from doing an Isur! It must be that the Halachah of preventing one from doing an Isur applies only when one derives no personal gain from hitting the perpetrator. When one derives personal gain, such as when the sinner is trying to hit one's close relative (or is trying to hit the person himself), one is <i>not</i> permitted to hit him in order to prevent him from doing an Isur, since it will not be clear that the person's intentions are pure. (That is, even to prevent an Isur Bein Adam la'Chaveiro, there are limitations as to who is allowed to stop another person by force.)
</p><p>


Rav Shmuel Rozovsky points out that this distinction may be derived from the words of Rashi (DH Isura) who specifies that one is permitted to hit someone to prevent him from doing an Isur since 'he is not doing it for his own self (for his own benefit).' This is the intention of the Gemara's question from the case of a woman who hits another man to save her husband. Since she does so to save her close relative (her husband), she is not permitted to do so in order to prevent the other person from doing an Isur.
</p><p>
(b) The <b>KETZOS HA'CHOSHEN</b> (in Meshovev Nesivos 3:1) rules that one is permitted to hit another Jew only if he is involved in an Aveirah at that moment. One is not permitted to physically harm him in order to prevent him from performing an Aveirah in the future, for otherwise the law would not require Mumchin (expert judges) to force a man to agree to give a Get when the circumstances require it (see Gitin 88b, and Tosfos to Sanhedrin 2b). Similarly, the Gemara in Kesuvos (86a) permits only <i>Beis Din</i> to beat a person to force him to agree to fulfill a Mitzvas Aseh, since the person is not presently involved in the Isur that they are trying to prevent him from doing. (According to the Rishonim mentioned above, forcing a person to give a Get is different and requires Mumchin because a Get requires 'Ratzon' -- he must give it willingly and not just because he is forced. Alternatively, when a person is doing what is clearly an Aveirah, anyone may stop him with physical force, but in a situation where Beis Din is required to determine what the person must do, only the law-enforcement agents (Shotrim) may use physical force to compel someone to do what the Beis Din of Mumchin requires him to do. See <b>CHASAM SOFER</b>, CM 177, DH Gimel.) 
</p><p>
(c) When the <b>RAMBAM</b> (Hilchos Avadim 3:5) cites the Gemara, he does not write that the master is <i>permitted</i> to hit the Eved to prevent him from transgressing the Isur, but rather <i>if</i> he hits the Eved he is exempt from damages. The <b>NETZIV</b> (in <b>HA'EMEK SHE'EILAH</b> 27:6) infers from this that the Rambam does not permit one to hit another Jew, l'Chatchilah, even to prevent him from transgressing an Isur. The <b>SHA'AR HA'TZIYUN</b> (OC 608:8) makes a similar inference from the Rambam in Hilchos De'os (6:8), where he discusses the Mitzvah of Tochechah (rebuke) and writes that one may rebuke a known sinner and disgrace him, but he does not write that one may hit him (as the She'iltos writes). In fact, in Hilchos De'os (6:5) the Rambam cites the Gemara from which Rashi learns that one is permitted to hit someone as a form of rebuke, but he explains the Gemara differently. According to the Rambam, the Gemara does not refer to rebuke at all. Rather, it means that if a person hits his friend out of hatred he does not transgress the Isur of 'Lo Sisna Es Achicha bi'Lvavecha' -- 'Do not hate your brother in your heart' (Vayikra 19:17), since he is <i>expressing</i> his feelings of hatred and not hiding them in his heart.
</p><p>
How does the Rambam understand the Gemara in Kesuvos which teaches that one may use physical force to make a person build a Sukah or hold a Lulav? In fact, the Rambam himself quotes this Gemara in Hilchos Chametz u'Matzah (6:12). Apparently, the Rambam understands that the Gemara's ruling applies only to Beis Din which, as its role as the overseer of the conduct of the people, has a greater responsibility to ensure that Jews follow the Mitzvos properly. (See the <b>SHA'AR HA'TZIYUN</b>, ibid., in the name of the <b>RAMBAN</b> to Devarim 27:26.) (The Rambam does not necessarily mean that Beis Din is different because the judges are Mumchin; even a Beis Din of judges who are not Mumchin may be permitted to hit a person under such circumstances.)
</p><p>
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon himself was injured, Reuven is exempt. 
               The ground of Reshus ha'Rabim damaged Shimon, and 
               the ground does not belong to Reuven.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Shmuel):</font></b> We learn liability for damage of a 
          stone, knife or load left in the Reshus ha'Rabim from the 
          law of a pit!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Therefore, we apply the law of a pit. He is 
               liable for 'an ox' that fell in, but not for a man. 
               He is liable for 'a donkey' that fell, but not for 
               Kelim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This applies only to death. He is liable for 
               damage to a person, but not to Kelim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> The law of a pit applies only when he was 
          Mafkir his property. If not, it is like his property that 
          damaged (and he pays even for damage to Kelim).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (R. Oshaya - Beraisa):</font></b> 'And fell there an ox 
          or a donkey' - one is liable for an ox, but not for a 
          man, and for a donkey, but not for Kelim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is the source that if an ox fell in and its 
               Kelim broke, or if a donkey fell in and its Kelim 
               tore, the owner of the pit pays for the animal, but 
               not for the Kelim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is like one who leaves his rock, knife or 
               load in a Reshus ha'Rabim, and they damaged.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Interjection:</font></b> We do not learn the law of a pit 
                    from a rock (or knife or load)! To the 
                    contrary, we learn a rock... from a pit!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Correction:</font></b> The Beraisa should say 'what 
                    else has this law? One who leaves his rock... 
                    in a Reshus ha'Rabim, and they damaged.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Therefore, if a flask broke on the rock, the 
               owner of the rock is liable.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Summation of question):</font></b> The Reisha opposes Rav; 
               and the Seifa opposes Shmuel!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Counter-question:</font></b> The Beraisa itself must be 
               altered!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Reisha exempts for damage to Kelim, and the 
                    Seifa obligates!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Rav can fix the Beraisa in a way that 
               fits his opinion, and also Shmuel.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> This law (that the owner is exempt for 
          people and Kelim) is when he was Mafkir his rock...; if 
          not, he is liable for all;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Therefore, if a flask broke on his rock, he is 
               liable.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> A rock... has the law of a pit. 
          Therefore, according to R. Yehudah, who obligates the 
          owner of a pit for damage to Kelim, if a flask broke on 
          the rock, he is liable.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #1 (R. Elazar):</font></b> Reuven is liable for the flask 
          only if Shimon tripped on the rock and the flask broke on 
          the rock;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he tripped on the ground and the flask broke 
               on the rock, Reuven is exempt.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	R. Elazar's teaching is unlike R. Nasan (who says that 
          if an ox pushed an animal into a pit, if damages cannot 
          be collected from the ox's owner, they can be collected 
          from the owner of the pit).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #2 (R. Elazar):</font></b> Do not say that Reuven is 
          liable for the flask only if Shimon tripped on the rock 
          and the flask broke on the rock;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, even if he tripped on the ground and the 
               flask broke on the rock, Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	R. Elazar's teaching is like R. Nasan.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> (If Reuven's flask broke, and Shimon slipped 
          on the water or was damaged by the shards, Reuven is 
          liable.) R. Yehudah says, he is liable only if he 
          intended.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of intent?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> Reuven intended to take the load off 
          his shoulders.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If so, R. Meir (the first Tana, who 
          is more stringent) would say that Reuven is liable even 
          in a case of Ones (beyond his control), e.g. the flask 
          dissolved!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> Yes! R. Meir obligates even if he is 
          holding the handle of the Kli and the Kli dissolved!
<br>

sjt:
<p>
<font><b>2) DAMAGE CAUSED BY PERSONAL OBJECTS LEFT IN RESHUS HA'RABIM</b></font><b>
<br>QUESTION:</b> Rav teaches that when a person leaves his objects in Reshus ha'Rabim and does not make them Hefker, he is liable even for damage which his objects cause to Kelim (unlike a normal Bor). Rav explains that since the owner was not Mafkir the obstacle, it has the status and liability of a <i>Shor</i> and not of a Bor.
</p><p>
Rav's ruling that an object left as an obstacle in Reshus ha'Rabim has the status of a Shor is difficult to understand. Rav apparently compares an obstacle in Reshus ha'Rabim to Keren, and not to Shen and Regel (since one is not liable for Shen and Regel in Reshus ha'Rabim). However, if Rav compares this obstacle to Keren, the owner should pay only Chatzi Nezek, as one pays for Keren!
</p><p>
Moreover, how can Rav compare damage caused by an obstacle, which is inanimate, to damage caused by an animal? A person is more responsible for damage caused by his animal since an animal has 'Ru'ach Chaim' (Mishnah 2a), and is 'Darcho Leilech ul'Hazik' (end of 9b), and an animal which damages with Keren has <i>intent</i> to damage -- 'Kavanaso l'Hazik' (2b, 5b)! An inanimate object has none of these characteristics. (<b>TOSFOS</b> 3b, DH mi'Shoro)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (3b) explains that Rav indeed learns that one is liable for such a form of Bor from the Halachah of <i>Keren</i>. With regard to why one pays Nezek Shalem -- and not Chatzi Nezek as for Keren (Tam) -- for damage caused by his object in Reshus ha'Rabim that he was not Mafkir, Tosfos explains that there is no logical distinction between Tam and Mu'ad for inanimate objects. Therefore, even though one pays Chatzi Nezek for the first damages caused by an animal, and thereafter one pays Nezek Shalem, for damages caused by an inanimate object one pays Nezek Shalem for all damages, even the first. (The <b>RA'AVAD</b> and <b>RASHBA</b> here present a similar argument. They explain that these objects are comparable to a Keren that is a Mu'ad since they are 'Mu'adim l'Hazik' in that they are in a position to do damage from the start.)
</p><p>
How can the liability for damage caused by an inanimate object be derived from Shor, a more stringent form of liability? Tosfos explains that Rav derives the liability for damage caused by these objects from a Mah ha'Tzad between Shor and Bor, similar to the Mah ha'Tzad mentioned in the Gemara earlier (6a). However, Tosfos asks that if Rav derives from a Mah ha'Tzad that one pays for damages of such objects, he should attribute the leniencies of both sides of the Mah ha'Tzad to this object, and the owner should be <i>exempt</i> from damages done to Kelim (like Bor), since the Halachah that is derived cannot be more stringent than either of the Halachos from which it is derived! Tosfos does not answer this question.
</p><p>
The <b>MAHARI KATZ</b> and <b>RABEINU YECHIEL</b> cited by the Shitah Mekubetzes explain that the primary source for the Halachah that one is liable for one's obstacles left in Reshus ha'Rabim, according to Rav, is Shor, and not Bor, and therefore it has all of the stringencies of Shor.
</p><p>
<b>TOSFOS RABEINU PERETZ</b> and others cited by the Shitah Mekubetzes explain this in more depth. Rav does not learn a Mah ha'Tzad from Shor and Bor equally. Rather, Rav learns this Halachah through a Binyan Av from Shor. The only reason not to learn a Binyan Av is the question mentioned earlier (that one's object is not 'Darcho Leilech ul'Hazik' and is not 'Kavanaso l'Hazik'). In order to refute those Pirchos, Rav cites the Halachah of Bor, for which one is liable even though Bor, too, lacks those qualities. Once the Pircha has been refuted, there no longer is a basis to ask that perhaps Bor is more stringent because it has qualities that make the owner more responsible, since it has no such qualities. Accordingly, Bor is used simply to refute a Pircha on the Binyan Av from Shor, and it is used as an active partner in the derivation (through a Mah ha'Tzad) of the Halachah of one's obstacles left in Reshus ha'Rabim. (This is called a derivation learned through a 'Palga d'Dina'; see <b>MAHARSHA</b> to Tosfos 6a, DH Tomar. See also <b>BRISKER RAV</b> to Hilchos Nizkei Mamon, and <b>SHITAH MEKUBETZES</b> in the name of the <b>GILYON</b>, for a different approach.)
</p><p>
(b) <b>TOSFOS RABEINU PERETZ</b> (3b) and the <b>YAM SHEL SHLOMO</b> (#8) explain that Rav learns that one is liable for damages caused to Kelim by such a Bor through a Mah ha'Tzad from <i>Shor</i> and <i>Esh</i>, and not from Shor and Bor. Since Bor is not used to derive the liability for damage caused by these obstacles, there is no reason to exempt the owner from damage they cause to Kelim. The Shitah Mekubetzes in the name of Mahari Katz points out that even according to this approach, one should be exempt for damages caused by such a Bor to items that are <i>Tamun</i>, just as one is exempt for such damages when caused by Esh.
</p><p>
This explains why Rav obligates one to pay Nezek Shalem for such damages, and why no Pircha may be asked from the fact that a Shor is a living being and has intent to damage. However, another Pircha may be asked: both Shor and Esh are 'Darchan Leilech ul'Hazik' -- it is their normal manner to go and cause damage, while the objects to which Rav refers are inanimate and do not move (as the Gemara on 9b indeed considers this a leniency). Why, then, is the liability for damage caused by these objects derived from Shor and Esh?
</p><p>
Perhaps Rav learns like the Ra'avad (9b) who explains the Gemara there differently (i.e. the Gemara does not refer to Keren, but to Regel, and the leniency is that one is exempt for damages of 'Dash b'Niro,' and not that its nature is different from that of Bor). Alternatively, he may learn like the <b>RASHBA</b> (10a, DH v'Lichechah), who explains that the words 'Darcho Leilech ul'Hazik' actually refer to the fact that a Shor has intent to do damage and is a live animal (as the Mishnah says). Accordingly, this Pircha cannot be asked on the Mah ha'Tzad from Shor and Esh.
</p><p>
(c) The <b>RA'AVAD</b> and <b>RASHBA</b> here explain that since the person left his objects in Reshus ha'Rabim knowingly, the damage that they cause is considered done with intent, and thus the owner's liability is as stringent as Shor.
</p><p>
This explains only why no Pircha may be asked from the fact that Shor is 'Kavanaso l'Hazik.' Why can no Pircha be asked from the fact that a Shor has 'Ru'ach Chaim' and is 'Darcho Leilech ul'Hazik'? Perhaps these Rishonim are consistent with their own opinions as expressed earlier (9b), where they do not explain 'Darcho Leilech ul'Hazik' as being a separate stringency (as mentioned in (b) above). 'Ru'ach Chaim' also might not be a Pircha; since it is considered as though these objects cause damage with intent, it is just as stringent as damage caused by a living animal. 
</p><p>
(d) The <b>RA'AVAD</b> adds that perhaps the negligence of the person who places the objects in Reshus ha'Rabim is a strong enough factor to make him liable to pay Nezek Shalem, even in Reshus ha'Rabim.
</p><p>
The Ra'avad apparently understands that the liability for these obstacles is derived from a Shor which causes damage with Regel, which is 'Derech Hilucho,' since these obstacles also cause damage by doing what they normally do (remaining still). Nevertheless, in contrast to Regel, one is not exempt for damage caused by these obstacles in Reshus ha'Rabim, since the negligence of the owner is involved in the damage more than it is involved when one's animal causes damage. Therefore, it is not reasonable to give it the leniencies that apply when a person's animal causes damage.
</p><p>
(e) The <b>SHITAH MEKUBETZES</b> cites <b>TOSFOS TOSFEI HA'ROSH</b> here who explains that the liability for damage caused by objects placed in Reshus ha'Rabim is derived not from Shor but from a Bor which is nine Tefachim deep. The Yerushalmi (5:6; see Insights to 4b) explains that one is exempt from liability for the death caused to a person and for damage caused to Kelim only when it one's ten-Tefach-deep Bor which caused the damage. For one's nine-Tefach Bor, however, for which one is liable for damages done to a person (like one is liable for damages done to an animal), one is also liable for damage done to Kelim. These obstacles are comparable to a nine-Tefach-deep Bor, and that is why one is liable for damage they cause to Kelim. (The <b>RASHBA</b> on 53b, however, points out that the Bavli here and on 35a does not seem to agree with the Yerushalmi.)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE ARGUMENT OF R. MEIR AND R. YEHUDAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection:</font></b> The Torah exempts for Ones - 'you will not 
          punish the Na'arah (who was raped)'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps that applies only to capital 
               punishment, but one is liable for damages, even due 
               to Ones.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Beraisa - R. Meir):</font></b> If his jug broke 
               and he did not clear away the fragments, or his 
               camel fell, and he did not stand it up, he is liable 
               for damage they caused;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, Beis Din does not make him pay, 
               but Heaven holds him accountable.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chachamim admit to R. Meir that if Reuven left a 
                    rock, knife or load on his roof and it fell in 
                    a normal wind and damaged, Reuven is liable.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  R. Meir admits to Chachamim that if he put 
                    bottles on the roof to dry, and they fell in an 
                    abnormally strong wind, he is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #2 (to Question 3:n, 28b - Abaye):</font></b> Chachamim (R. 
          Meir) and R. Yehudah argue in two cases: at the time of 
          falling, and afterwards:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> For damage at the time of falling, they argue 
               about whether or not one who trips is negligent. R. 
               Meir says that he is negligent, and R. Yehudah says 
               that he is not. ('Intent' is when he broke the flask 
               b'Mezid. Without intent is when he tripped and it 
               broke.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> For damage after the time of falling, they argue 
               about one who is Mafkir things that can damage. R. 
               Meir obligates for this, and R. Yehudah exempts.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> How did Abaye know that (in the Mishnah) they 
          argue about two matters?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah gives two cases. Shimon slipped on 
          the water or was damaged by the shards. Seemingly, these 
          are the same!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, they argue about slipping on the water at 
               the time of falling (i.e. before Reuven was able to 
               clean up the water);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They argue about damage through the shards after 
               Reuven fell and was Mafkir the shards.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Since in the Mishnah they argue in two cases, 
          presumably also in the Beraisa they argue in two cases!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, the case of the jug breaking could be at 
               the time of falling, or after.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Granted, the case of the camel falling could be 
               after falling. He was Mafkir the carcass.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> How can they argue about this at the time of 
               falling? He is blameless. Why would R. Meir obligate 
               him to pay?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Acha):</font></b> He led the camel where the river 
          was overflowing. This caused it to fall.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there is another path, he was negligent. Why 
               do Chachamim exempt him?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If there is no other path, he is Ones. Why does 
               R. Meir obligate him to pay?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, the owner tripped, and the camel 
          tripped on the owner.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If he was Mafkir Nezakav (his things that can 
          damage), why does R. Yehudah distinguish between whether 
          or not he intended?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (and Answer #3 to 3:n, 28b - Rav Yosef):</font></b> R. 
          Yehudah agrees that he is liable if he intended that the 
          shards remain his (he was not Mafkir them).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> They argue at the time of falling.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Do all agree after the time of falling?! 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You cannot say that they agree that he is exempt. 
               R. Meir obligates!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> You cannot say that they agree that he is liable. 
               Chachamim exempt!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rather, R. Elazar must mean that they argue even 
               at the time of falling, like Abaye.
<br>
<br>

sjt:
<font><b>1) WHY DOES ABAYE NOT GIVE A SIMPLE ANSWER</b></font><b>
<br>QUESTION:</b> The Mishnah (28a) states that if one's barrel breaks in the public domain and someone either trips on the barrel or slips on the fluid which spilled from the barrel, the bearer of the barrel must pay for the damages. Rebbi Yehudah says that 'with intent' the owner is liable, and 'without intent' he is exempt. 
</p><p>
Rabah (28b) explains that Rebbi Yehudah means that if the bearer of the barrel slipped while unloading the barrel from his shoulder and the barrel fell, broke, and its content spilled out, he is liable for any damage caused by the barrel and its contents. Slipping is considered an act of negligence. 
</p><p>
Abaye asks that Rabah's statement implies that Rebbi Meir (the Tana Kama), who disagrees with Rebbi Yehudah, maintains that the bearer of the barrel is liable even when the barrel breaks due to an unforeseeable cause (for example, it was weak and fell apart). Rabah confirms that this is an accurate inference. Abaye responds that it is not possible that Rebbi Meir would obligate the bearer of the barrel in such a case, because the Torah does not hold one responsible for circumstances beyond one's control.
</p><p>
Therefore, Abaye says that Rebbi Meir and Rebbi Yehudah argue about two separate points. Their first argument involves whether or not one who trips is deemed negligent. Their second argument involves whether or not one is obligated for the damage his objects cause after he makes them ownerless. Rebbi Yehudah maintains that one is obligated for damages caused by his Bor (any potentially harmful object which he placed in Reshus ha'Rabim) only when it belongs to him. According to Rebbi Yehudah, even if he placed the potentially harmful object there deliberately, he is exempt from the damages if he makes them ownerless before they cause damage. 
</p><p>
Why does Abaye need to give all of this information in order to answer his own question on Rabah? He should say simply that Rebbi Yehudah means that one is liable only when he deliberately breaks a barrel and not when he trips!
</p><p>
<b>ANSWER:</b> The <b>PNEI YEHOSHUA</b> answers by pointing out that the Mishnah's choice of terminology is unusual. Rebbi Yehudah does not say merely that 'he is exempt,' the common term used by the Mishnah when two Tana'im argue about a specific case. Rather, he says, 'If he has intent he is liable, if he does not have intent he is exempt.' This phrase must mean that Rebbi Yehudah's statement is not a direct argument with Rebbi Meir. In what way does Rebbi Yehudah argue? 
</p><p>
In order to answer this question, Abaye explains that the statement of Rebbi Meir also implies two rulings in two different cases. Rebbi Yehudah responds to Rebbi Meir accordingly and says that one is never obligated unless he has intent to damage. Moreover, Rebbi Yehudah adds that even in such a case he is liable only if he intends to pick up the pieces or contents of the barrel. This is the meaning of the phrase, 'if he has no intent.' It means that he has no intent to retain the pieces or contents of the barrel, and therefore he is exempt. 
</p><p>
The Pnei Yehoshua says that although this explanation is consistent with the opinion of <b>TOSFOS</b> (DH Pligi b'She'as Nefilah), the <b>RIF</b> apparently understands that Abaye's conclusion is that the primary argument between Rebbi Meir and Rebbi Yehudah involves the ownership of the pieces of the barrel. Accordingly, Abaye cannot say that Rebbi Yehudah refers to a case in which the owner deliberately broke a barrel, because the primary argument involves the ownership of the pieces. This is why, according to the Rif, Abaye does not give a simple answer. (Mordechai Zvi Dicker) 
</p><p>
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