How do we view indirect damage – is it like keren and does it have all the criteria of keren or is it like regel and it has the criteria of regel? Or does it depend of whether the indirect damage was done in a typical way or an atypical way?
The first perek ends with statements about the importance of doing acts of kindness and learning Torah. The next perek begins with details of regel – damaging with ones feet and the sibcategories of regel. The law of tzrorot is brought up – indirectly causing damage and there is a debate between the rabbis and Sumchus about whether or not one pays full damages or half damages.
The mishna lists 5 cases of a shor tam and 5 cases of muad and a list of animals who are always considered muad. There are various problems in the simple reading of the mishna which leads to 4 different interpretations offered in the gemara for understanding it. A lion is considered muad for certain behaviors and not for others according to Shmuel. This assumption of his is questioned as it seems to contradict a tannatic source.
The gemara continues to explain the mishna – who can function as a beit din, who cannot testify, how we know that women are responsible for damages as men, in what way does the one whose property was damaged also have to “pay”? In a case where an animal damages violently (keren) and is a shor tam (hasn’t done this yet 3 times), the owner needs to pay half damages. there is a basic disagreement about the nature of the payment of half damages- is it a monetary obligation and we only make the owner pay half since it was unexpected or is the owner supposed to be entirely not responsible but in order to incentivize owners to watch their animals, the Torah instituted a fine that they pay half the damages? There are attempts to bring sources to find the answer and in the end the gemara concludes that it is a fine/penalty. Since by law, only in Israel can the courts rule on penalties, cases of shor tam cannot be ruled on in Babylonia. However if the damages person were to seize payment from the damager, the courts leave it in his hands.
What are the levels of responsibility in a commonly owned property. What if it was commonly owned for produce but not for animals? The next mishna lists conditions for how the money gets paid. The terms in the mishna are very unclear and the gemara works on explaining them.
The gemara analyzes the meaning of 3 statements of the mishna that delineate the cases in which one is obligated in damages – items not responsible for meila, items of those part of the covenant, and items that are designated (to a specific owner).
In what way is the ox more stringent/unique than the other cases? In what way is the pit more stringent? And in what way is fire more stringent? If you are partially responsible for damages, you need to pay full damages. What case is this referring to? A braita explains: if one digs a pit 9 handbreadths deep and someone digs it one more handbreadth and then an animal falls in and dies, only the last person is responsible. What about other similar cases? Why aren’t they listed? Various cases are brought in which there is similar possible joint responsibility and it is discussed who is the one who is responsible, including a case where 10 people hit someone else and cause his death.
Abaya brings different cases about someone who buys land from someone who bought liened property. Can he take the property from either one? Rav Huna says one who needs to pay damages can pay either with money or property. Rav Asi says the same thing but the gemara first challenges that assumption and tries to explain Rav Asi’s statement in a different manner. The gemara (on the new mishna) brings a braita which compares fire to the ox and pit cases and distinguishes between them according to law. The gemara tries to establish what the case is in order to understand why the law is different.
Is the term “best land” relative to the world or relative to one’s own land? various sources are brought to attempt to resolve this question. If one sells 3 different types of property to 3 different people either all on the same day or on separate days, does the one claiming the land in return for a loan, ketuba, or damages claim it based on the order in which it was sold (they get the last property sold) or do they claim it based on the type of land – poor quality, middle or best)?
The gemara tries to understand what Rabbi Akiva meant by kal vahomer lehekdesh. What is the case of hekdesh? Abaye brings a contradiction – on the one hand one needs to pay from the best of his land. On the other hand a braita says that he can even pay from bran. Four possible answers are brought – the first 3 are rejected.