ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Kama 29
(a) The Beraisa quoting Rebbi Meir, obligates the owner to pay, if his jug
broke or his camel slipped and fell, and he left them lying there. According
to the Chachamim - he is 'Chayav be'Dinei Shamayim, but Patur be'Dinei Adam'
(meaning that he is morally obligated to pay, but Beis-Din cannot force him
to do so).
1. The Chachamim concede to Rebbi Meir that he is liable - if he placed his
stone ... on the roof and they are blown down by a regular wind (in which
case he is negligent).
(c) Having proved that Rebbi Meir and the Chachamim cannot possibly be
arguing over a Bor that was made be'O'nes, Abaye interprets 'Niskaven' (of
Rebbi Yehudah) to mean - that he intended to lower the water-jug from his
2. Rebbi Meir concedes to the Chachamim that he is Patur - if he placed his
jars on the roof and they are blown down by an irregular wind (for which he
is an O'nes).
(d) The Machlokes between Rebbi Meir and the Rabbanan concerning ...
1. ... Sha'as Nefilah is - whether Niskal is Poshe'a (someone who trips or
whose article falls in this manner is negligent - Rebbi Meir), or not (Rebbi
Yehudah, because he considers him an O'nes).
(e) The other Tana'im involved in the same Machlokes later (in Shor
she'Nagach es ha'Parah) are - Rebbi Yishmael and Rebbi Akiva.
2. ... Achar Nefilah is - based on the assumption that the Mazik in our
Mishnah declared his water and broken jar Hefker. Rebbi Meir holds that the
Bor of which the Torah speaks is a Bor in the Reshus ha'Rabim, which is
ownerless (in which case the Mazik will be Chayav in our case too); whereas
Rebbi Yehudah holds that the Bor of the Torah is one where the owner
declared his Reshus Hefker but not his Bor (because otherwise, he will not
be the owner and will not be liable). In our case too, seeing as neither the
Reshus nor the 'Bor' belong to the Mazik, he will be Patur.
(a) Abaye extrapolates from the Mishnah itself that Rebbi Meir and Rebbi
Yehudah are involved in a double Machlokes - from the fact that the Tana
presents two cases, 'Huchlak Echad ba'Mayim' (be'Sha'as Nefilah) 'O
she'Lakah be'Charasis' (le'Achar Nefilah).
(b) The fact that they are, prompts us to say - that the Beraisa ('Nishberah
Kado ve'Lo Silko ... Nafal Gamlo ve'Lo He'emido') also deals with a double
Machlokes (though we cannot deduce this from the twin cases presented used
there - see Tosfos DH 'mi'de'Masnisin').
(c) Seeing as the Beraisa too, refers to a double Machlokes, the case that
we have difficulty in establishing is - that of the camel that damaged
whilst it fell, because we cannot understand how Rebbi Meir can consider the
owner negligent when his camel falls?
(a) Rav Acha tries to establish the Mishnah when the owner led his camel in
an area where the river covered the path, so that the camel could not see
where it was going. The problem with this explanation is - that there is no
room for Machlokes; if there *was* an alternative route, then everyone would
have to agree that the owner was negligent, and if there was not, then
everyone would have to agree that he was an O'nes.
(b) We finally establish our Mishnah - when the owner tripped and pulled his
camel down with him.
(c) Rav Yosef and Rav Ashi explain the 'Miskaven' of Rebbi Yehudah in the
case of le'Achar Nefilah to mean that the owner had the express intention
of retaining ownership of his water and broken pieces of earthenware (to
preclude when he declared them Hefker, in which case he is Patur).
(a) Initially, when Rebbi Elazar says 'be'Sha'as Nefilah Machlokes', we
think that he is coming to restrict the Machlokes between Rebbi Meir and
Rebbi Yehudah to Sha'as Nefilah. What is wrong with saying that le'Achar
1. ... Rebbi Meir concedes that the Mazik is Patur is - that Rebbi Meir
himself specifically obligates him to pay in the Beraisa that we discussed
(b) What Rebbi Elazar really means therefore is - 'Af be'Sha'as Nefilah
Machlokes' (like Abaye).
2. ... Rebbi Yehudah concedes that he is Chayav is - that in the same
Beraisa, the Chachamim (which is synonymous with Rebbi Yehudah) say that he
(a) Rebbi Yochanan says 'le'Achar Nefilah Machlokes'. Apart from the Beraisa
that we discussed earlier, we cannot understand this to mean that be'Sha'as
1. ... Rebbi Meir concedes that the Mazik is Patur - because Rebbi Yochanan
himself will say later that the author of the Mishnah of two potters is
Rebbi Meir, who holds that someone who trips is considered negligent.
(b) When Rebbi Yochanan says 'le'Achar Nefilah Machlokes' - he means to say
that they only argue in a case where the owner declares his article Hefker
after it actually fell (be'O'nes), but not if he threw it down
(be'Peshi'ah). There, Hefker will not help to absolve him from having to
2. ... Rebbi Yehudah concedes that he is Chayav - because we can infer from
that statement that Rebbi Yehudah exempts him.
(a) As we have just seen, Rebbi Yochanan and Rebbi Elazar argue over Mafkir
Nezakav Achar Nefilah. We reject the proposal that the one who says Chayav
holds like Rebbi Meir, and the one who says Patur, like Rebbi Yehudah. In
fact, they do ...
1. ... do not argue in Rebbi Meir - according to whom the Mazik is
definitely liable even after Nefilas O'nes.
(b) Rebbi Elazar says in the name of Rebbi Yishmael - that a Bor in the
Reshus ha'Rabim and Chametz on Pesach are considered to be in Reshus of the
'owner' (to be liable and to transgress, respectively) even though they are
2. ... argue in the Chachamim - whether they exempt Mafkir Nezakav Achar
Nefilas Peshi'ah or not.
(c) We try and prove from here - that Rebbi Elazar is the one to say that
Mafkir Nezakav is Chayav.
(a) We refute the previous suggestion from a statement of Rebbi Elazar, who
establishes the Mishnah later 'ha'Hofech es ha'Galal bi'Reshus ha'Rabim,
ve'Huzak Bahen Acher, Chayav be'Nizko' - when he intended to acquire the
manure, but not otherwise.
(b) This proves that Rebbi Elazar holds 'Mafkir Nezakav, Patur' (and this
conforms with the final outcome of the Sugya).
(c) Rav Ada bar Ahavah tries to answer the discrepancy (in Rebbi Elazar) by
establishing the Mishnah when he replaced the manure, because then, he
argues, it is as if he did not create the Bor. Ravina illustrated this with
a Mashal - of someone who found an open it, covered it and opened it again.
(d) Mar Zutra B'rei de'Rav Mari disagrees. This case is worse he says,
because when he picked up the manure, the original pit no longer existed.
And he proves his point by comparing it - to someone who found an open pit,
filled it in and re-dug it.
(a) In any event, we are left with a discrepancy in Rebbi Elazar. In order
to reconcile Rebbi Elazar's statement there with his other statement where
he holds 'Mafkir Nezakav Chayav', Rav Ashi establishes the Mishnah (of
'ha'Hofech es ha'Galal'), Rav Ashi establishes the Mishnah - when the Mazik
picked up the manure less than three Tefachim (in which case, it is as if it
was not moved at all).
(b) Despite the fact that he did not lift up the manure three Tefachim, he
is subsequently Chayav if someone hurts himself on it, because by picking
it up, he acquired it, in which case, it was *his* manure that did the
damage. One acquires something, even if one does not lift it up three
Tefachim - either by lifting it up one Tefach, or according to those who
hold that one acquires Hefker by merely looking at it.
(c) What prompts Rebbi Elazar to establish the Mishnah when he did not lift
up the manure three Tefachim, forcing him to add that he *specifically
intended to acquire it*, rather than establish it when he lifted it up more
than three Tefachim, in which case he will be Chayav even if *he did not* -
is the fact that the Tana speaks about someone who turns over manure, and
not someone who lifts it up.
(d) Rebbi Yochanan must therefore hold - 'Mafkir Nezakav, Patur'.
(a) Our Mishnah says - that someone who hides a thorn or a piece of glass in
the street or who makes a fence of thorns bordering the street is liable for
(b) The third case mentioned by the Tana is - a wall that fell into the
street and caused damage.
(c) Rebbi Yochanan qualifies the case of a fence of thorns - absolving the
Mazik from liability in the event that he ensured that none of the thorns
protrude into the street.
(d) We initially think that he is Patur - because it is a Bor bi'Reshuso,
implying that, according to Rebbi Yochanan, the Chiyuv of Bor is in the
Reshus ha'Rabim. But did we not just conclude that Rebbi Yochanan must hold
'Mafkir Nezakav, Patur'?
(a) We refute this suggesting however, by insisting that Rebbi Yochanan
holds 'Mafkir Nezakav Patur', and he exempts Metzamtzem (not because he
holds 'Hifkir Reshuso ve'Lo Hifkir Boro Patur', but) - because people do not
tend to walk so close to the side of the street that they scratch against
the walls (so one is not liable to pay the damages of someone who did).
(b) The (S'tam) Mishnah in 'Shor she'Nagach es ha'Parah' says - that someone
who digs a pit in the Reshus ha'Rabim is Chayav.
(c) Bearing in mind that Rebbi Yochanan always rules like a S'tam Mishnah,
this forces us to finally conclude - that Rebbi Yochanan is the one who
holds 'Mafkir Nezakav, Chayav', whereas Rebbi Elazar holds Patur.
(d) To reconcile this with Rebbi Elazar's quotation from Rebbi Yishmael, who
holds that a pit that one dug in the Reshus ha'Rabim is considered as if it
was his (and he is liable for all subsequent damages), even though it is
not - we must establish this statement as a quotation from his Rebbe, with
which he personally disagrees.