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Bava Kama 31

BAVA KAMA 31 - - dedicated by Reb Gedalia Weinberger of Brooklyn, N.Y. in memory of his father, Reb Chaim Tzvi ben Reb Shlomo Weinberger (Yahrzeit: 18 Adar). Reb Chaim Tzvi, who miraculously survived the holocaust, always remained strongly dedicated to Torah and its study.



(a) The Tana of our Mishnah says that if two potters were walking one behind the other, and the first one tripped and fell, and the second one tripped over him and fell and injured himself - the first one is liable to pay the damages of the second.

(b) At first glance, the author of our Mishnah appears to be Rebbi Meir, who holds 'Niskal Poshe'a' (falling is considered negligent). Rebbi Yochanan however, establishes our Mishnah like Rebbi Yehudah, who holds that it is O'nes - because it is not for falling that he was liable, but for not getting up when he should have done.

(c) Rav Nachman bar Yitzchak goes one step further. According to him, the first potter would have been liable even if he had not been able to get up. He would nevertheless be held liable - for not shouting a warning to the man behind him.

(d) Rebbi Yochanan disagrees. He maintains - that someone who is busy untangling himself is not expected to have the presence of mind to shout out a warning.

(a) In the following Mishnah, the Tana obligates the owner of a beam to pay the owner of a barrel, if he stopped in the street and the barrel crashed into his beam and broke.
1. The assumption that the former stopped to adjust his beam presents Rebbi Yochanan with a Kashya - because if someone who is busy adjusting his beam is expected to warn the person behind him, the same will apply to someone who is busy trying to stand up.
2. Establishing the Mishnah when he stopped to rest will resolve the problem - because, since people have no authority to use the public street as a rest-house, it is obvious that he has to warn the person behind him to avoid being liable.
(b) The Tana nevertheless switches in the Seifa to when the owner of the beam warned the owner of the barrel to stop, rather than present a case when he stopped to adjust his beam (even without warning the man behind him) - because he considered it necessary to inform us the Chidush that warning absolves from liability, even after having stopped illegally.

(c) In a Beraisa which reiterates the Din of our Mishnah, the Tana discusses three potters or glaziers who are walking one behind the other. The Tana says - that in a case where first the first one, then the second, warned the one behind him, before he too, fell - they are both Patur from paying.

(d) We initially think that this presents a Kashya on Rebbi Yochanan - because, if, as we currently believe, they were unable to get up, then, according to him, since they were busy trying to untangle themselves, they should have been Patur from paying even if they had not warned the one behind.

3) Once again, we refute the Kashya by establishing the Mishnah when they were able to get up. Nevertheless, in the Seifa, the Tana switches to when they warned each other, rather than present a case when they were unable to get up (even without warning the men behind them) - because the very fact that they can be Patur from paying by means of a verbal warning, even when they are able to get up, is in itself a Chidush.


(a) Rava comments on the above Beraisa that the first Mazik is liable for damage done to the second man, irrespective of whether the injury was caused by his body or by his vessels - whereas the second Mazik is only liable for damage caused by his body, but not for damage caused by his vessels.

(b) The reason for this distinction is - because the first Mazik is considered Poshe'a, in which case his vessels are considered to be his Bor; whereas the second Mazik who tripped over the first Mazik be'Ones, is not liable for the damage caused by his vessels, for which he does not bear responsibility

(c) The second Mazik nevertheless liable to pay for the damage done to the third man with his body - because he should have got up.

(d) In all these cases, the basic difference between damage caused by the Mazik and damage caused by his vessels is - that the former (which is Chayav because of Adam ha'Mazik) is liable not only for damage done to the person himself, but also for damage done to his vessels; whereas the latter (which is Bor) is liable for damage done to the person exclusively.

(a) Despite what Abaye said above, that according to the Chachamim of Rebbi Meir, 'Niskal La'av Poshe'a', Rava considered the first Mazik to be a Poshe'a - because he disagrees with Abaye (who establishes the Machlokes Tana'im in two points). According to *him*, they both agree that Niskal Poshe'a (see Gilyon ha'Shas, and Tosfos DH 'Amar Rava's) ...

(b) ... and they argue over whether Mafkir Nezakav le'Achar *Nefilas Peshi'ah* is Chayav or not.




(a) When the Tana of the Beraisa writes 'Kulan Chayavin al Nizkei *Gufan*, u'Peturin al Nizkei *Mamonam*' - he means that either his body or his vessels or clothes injured the person behind him (like Rava [at this point]).

(b) Taking 'Kulan' literally, we initially understand the Beraisa to mean - that even the first Mazik is Patur for the damage done by his vessels, because the Tana holds 'Niskal La'av Poshe'a'.

(c) To conform with Rava's statement, Rav Ada bar Ahavah attempts to interpret 'Kulan' to mean - all the *Nizakin* (to preclude the first man, who is a Mazik, not a Nizak).

(d) We reject this explanation however, on the grounds - that, seeing as there are only *two* Nizakin, unless the Tana comes to include the Mazik, he should not have used the word 've'Chulan' at all.

(a) So we attempt to reinterpret Rava statement. When he says that the first Mazik is Chayav 'Bein be'Nizkei Gufo, Bein be'Nizkei Mamono', whereas the second one is only Chayav by Nizkei Gufo, but not by Nizkei Mamono - he is referring to the respective bodies of the Mazikin damaging the respective body or vessels of the Nizak. As far as their vessels is concerned, neither are Chayav (because he holds that 'Niskal La'av Poshe'a').

(b) The reason for this is because, even though both Mazikin are Onsin) the first one is more negligent than the first, and therefore when he failed to get up, Chazal gave him the Din of Adam ha'Mazik, whereas the second one (a pure O'nes), they gave the Din of Bor.

(c) This explanation will only work however, according to Rav, who considers every obstacle a 'Bor'. It is unacceptable according to Shmuel - because there is no way that a person, to whom the term 'Hefker' is not applicable, can be considered a 'Bor'.

(a) In the final analysis, Rava really means - what we originally understood in his words (that the first Mazik is Chayav for damage done to the second man, irrespective of whether the injury was caused by his body or by his vessels - whereas the second Mazik is only liable for damage caused by his body, but not for damage caused by his vessels).

(b) To reconcile Rava with the Beraisa, Rav Ada bar Minyumi qualifies the Beraisa, which states 'Kulan Peturin al Nizkei Mamonan' - by restricting it to damage done to the Nizak's *vessels* (whereas Rava is referring to injuries sustained by the Nizak himself).

(c) According to Rav - the first Mazik will be Patur for the damage done by his vessels to those of the Nizak, irrespective of whether the Mazik declared them Hefker or not; whereas according to Shmuel - he will only be Patur if he declared them Hefker.

(d) The second person however - is not liable for the injuries sustained by the third person according to Rav, because he was an O'nes, as far as they were concerned, so whether he declared them Hefker (and they had a Din of Bor), or not (and they had a Din of Shor), he will be Patur, because one is not liable for damages caused by one's Mamon be'O'nes.

(a) We learned in the Beraisa quoted on the previous Amud that if the second and the third men both tripped over the first one, then he is liable. The problem with this statement is - how it is possible for the third man to have tripped over the first man and not the second.

(b) Rav Papa answers that the Beraisa speaks when he was sprawled across the street like 'a Shelda' - which is a carcass.

(c) Rav Z'vid explains - that he was sprawled across the street like a blind man's stick.

(d) The difference between the two answers (Tosfos explains) is - that according to Rav Z'vid, the Tana is speaking specifically when the first man stretched across the street at an angle (which is the way that a blind man would hold his stick); had the stick been straight (like Rav Papa explained), he would not be Chayav, because the third man should have been aware of the danger when he saw the second man fall.

(a) In a case where a man carrying a beam and a man carrying a barrel collide head-on in the street, and the barrel breaks the Tana of our Mishnah rules - the former is Patur, because he had as much right to walk in the street as the latter.

(b) Where the man with the beam is walking in front of the man with the barrel ...

1. ... and the barrel smashes into the beam and breaks - the former is Patur (even assuming that slowed down slightly).
2. ... and the barrel smashes into the beam and breaks, but after the man with the beam stopped suddenly - he is liable (for not warning the man behind him of his intention to stop).
(c) And in a case where the man with the barrel is walking in front of the man with the beam ...
1. ... and the beam smashes into the barrel and it breaks - the Tana rules that he is Chayav to pay (even assuming that the man with the beam slowed down slightly).
2. ... and the beam smashes into the barrel and it breaks, but after the man with the barrel stopped suddenly - the former is Patur.
3. ... in the latter case, if the latter warned the former that he was about to stop - then the former is liable.
(d) A case of one man walking with a lamp and the other, with a bundle of flax - will follow the same pattern as the above.
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