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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).
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).
(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 shoulders.

(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).
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.
(e) The other Tana'im involved in the same Machlokes later (in Shor she'Nagach es ha'Parah) are - Rebbi Yishmael and Rebbi Akiva.
(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 Nefilah ...
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 above.
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 is Patur.
(b) What Rebbi Elazar really means therefore is - 'Af be'Sha'as Nefilah Machlokes' (like Abaye).



(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 Nefilah ...
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.
2. ... Rebbi Yehudah concedes that he is Chayav - because we can infer from that statement that Rebbi Yehudah exempts him.
(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 pay.
(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.
2. ... argue in the Chachamim - whether they exempt Mafkir Nezakav Achar Nefilas Peshi'ah or not.
(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 really Hefker.

(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 subsequent damages.

(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.

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