1)

HOW SHMUEL EXPLAINS THE MISHNAH

(a)

(Rav Yehudah): Shmuel explains the Mishnah to say 'Re'i (the leniency) of an ox (Keren), in which the damager gets no Hana'ah, is unlike that of Mav'eh (Shen), in which the damager gets Hana'ah;

1.

The Re'i of Shen, which has no intent to damage, is unlike that of Keren, which has intent to damage. (Tosfos - he considers lack of Hana'ah or no intent to damage to be leniencies, for it is easier to guard one's animal from damage in these cases. The next question disagrees with Rav Yehudah.)

(b)

Question: We should be able to learn one from the other from a Kal va'Chomer!

1.

One is liable for Shen, which has no intent to damage. All the more so, one should be liable for Keren, which has intent to damage!

(c)

Answer: We cannot learn from a Kal va'Chomer. One might have thought that just like (the master of) a slave is exempt, even though the slave intended to damage, also Keren.

(d)

Objection (Rav Ashi): We would not think so. The only reason one is exempt for his slaves is lest a slave get angry at his master, and decide to cause tremendous damage to trouble him. This reason does not apply to animals!

(e)

Correction: Rather, Re'i, i.e. the stringency of Keren, which has intent to damage, is unlike that of Shen, which has no intent to damage;

1.

The stringency of Shen, in which there is Hana'ah to the damager, is unlike that of Keren, which has no Hana'ah to the damager.

(f)

Question: Did the Tana teach Keren and Shen, and omit Regel?!

(g)

Answer: The Reisha, 'if they damaged, the damager must pay from Meitav land' includes Regel.

(h)

Objection: Regel should have been taught explicitly!

(i)

Answer #2 (to question 4:l, Daf 3b - Rava): 'Ox' teaches Regel, and Mav'eh teaches Shen.

1.

The stringency of Regel, which is common, is unlike that of Shen, which is not common;

i.

The stringency of Shen, in which there is Hana'ah to the damager, is unlike that of Regel, which has no Hana'ah to the damager.

(j)

Question: Did the Tana teach Regel and Shen, and omit Keren?!

(k)

Answer: The Reisha, 'if they damaged, the damager must pay from Meitav' includes Keren.

(l)

Objection: Keren should have been taught explicitly!

(m)

Answer: The Tana only lists explicitly things that are Mu'ad (pay full damage) from the beginning.

(n)

Question: Why didn't Shmuel learn like Rav?

(o)

Answer: A later Mishnah (15b) teaches 'a Mu'ad ox, an ox that damages on the premises of the victim (the one whose property was harmed), and man.' This implies that our Mishnah does not discuss man.

(p)

Question: Why doesn't our Mishnah discuss man?

(q)

Answer: Our Mishnah discusses only damages of a man's property, not of man himself.

(r)

Question: How does Rav explain why the later Mishnah also mentions man?

(s)

Answer: That Mishnah lists all Mu'ad damagers.

2)

HOW RAV EXPLAINS THE MISHNAH

(a)

Question: How does Rav explain our Mishnah (how it explains why an ox and Mav'eh needed to be written in the Torah)?

(b)

Answer: The stringency of an ox, which (i.e. its owner) pays Kofer (ransom when it kills someone), is unlike that of man, who does not pay Kofer;

1.

The leniency of man, who pays four additional damages (pain, medical expenses, Sheves (compensation for total inability to work while sick due to the injury), and embarrassment) is unlike that of an ox, which is exempt from these.

(c)

Question: The Reisha says 'the Tzad ha'Shavah of (what is common to) all the damagers is that it is their nature is to damage.' Is this really true about an ox?!

(d)

Answer: This refers to a Mu'ad.

(e)

Question: Is it really the nature of a Mu'ad to damage?

(f)

Answer: Yes!

(g)

Question: Is it really the nature of a man to damage?

(h)

Answer: This refers to a sleeping man.

(i)

Question: Is it really the nature of a sleeping man to damage?

(j)

Answer: Yes, because he retracts and stretches out his limbs.

(k)

Question: The Mishnah continues, 'you are obligated to guard them.' Regarding man, it should say 'he must guard himself'!

1.

Counter-question: Karna taught that there are four Avos Nezikin, and man is one of them. How does he explain why the Mishnah didn't say 'man must guard himself'?

2.

Answer (R. Avahu): The Mishnah should say (regarding man), 'man must guard himself'.

4b----------------------------------------4b

(l)

Answer: Rav will also say, the Mishnah should say 'man must guard himself'.

(m)

Question (Rav Mari): We should say that Mav'eh is water - "like water Tiv'eh (bubbles) because of fire"!

(n)

Answer: The singular conjugation "Tiv'eh" shows that the verb refers to fire (which makes the water bubble), not Mayim (water, which is plural in Hebrew grammar).

(o)

Question (Rav Zvid): We should say that Mav'eh is fire - "like fire Tiv'eh (makes bubble) water"!

(p)

Answer: This cannot be. Our Mishnah lists Mav'eh and Hev'er (fire).

1.

Suggestion: Perhaps Hev'er explains what Mav'eh is!

2.

Objection: If so, the Mishnah only listed three Avos (but it says there are four)!

3.

Suggestion: Perhaps it counts an ox like two (Regel and Shen, which are Mu'ad from the beginning).

4.

Rejection ((Mishnah): The leniency of an ox and Mav'eh, which are alive, is unlike that of fire.;

i.

Fire is not alive! Also, it says, Mav'eh is not like fire!

3)

OTHER DAMAGERS

(a)

(R. Oshiya): There are 13 Avos Nezikin: a Shomer Chinam (one who guards a deposit for free), a borrower, a Shomer Sachar (he is paid to guard it), one who rents an object; Nezek (lifelong loss in earning potential), pain, medical expenses, Sheves, and embarrassment; and the four Avos of our Mishnah.

(b)

Question: Why did our Tana list only four?

(c)

Answer #1 (according to Shmuel): Our Tana lists only damage of a man's money, not of man himself.

(d)

Answer #2 (according to Rav): Our Tana listed man. This includes all damages of man.

(e)

Question: Why did R. Oshiya list separately these damages of man?

(f)

Answer: He distinguishes a man who damages an animal from a man who damages a man.

(g)

Question: If so, he should also list separately an animal that damages man, and an animal that damages an animal!

(h)

Answer: No. When man damages man, he pays four more damages than when he damages an animal, so there is reason to list them separately;

1.

An animal always pays only Nezek!

(i)

Question: R. Oshiya listed the four Shomrim, which are cases of man damaging animals!

(j)

Answer: He lists overt damage, and damage that happens by itself. The Mishnah lists only overt damage.

(k)

(R. Chiya): There are 24 Avos Nezikin: the double payment of a thief, the payment of four or five times (the value of an animal sold or slaughtered after it was stolen), a thief, a Gazlan (open robber), Edim Zomemim (witnesses who testify about something they were not present to see);

1.

One who rapes or entices (a virgin Na'arah), Motzi Shem Ra (one who falsely claims that the Na'arah he married was not a virgin);

2.

One who is Metamei (e.g. food), one who mixes Terumah with Chulin, one who pours libations to idolatry, and the 13 Avos of R. Oshiya.

(l)

Question: Why did R. Oshiya omit these other 11 Avos?

(m)

Answer: He lists only payments of principal, but not fines.

(n)

Question: He should have listed (the principal paid by) a thief and Gazlan!

(o)

Answer: These are included in the Shomrim.

(p)

Question: Why did R. Chiya list them separately?

(q)

Answer: A Shomer received the property in a permitted way. A thief or Gazlan took it improperly.

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