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1) ANOTHER CASE THE MISHNAH TEACHES

(a) (Mishnah): The Tzad ha'Shavah (common side) among them (their nature is to damage...)
(b) Question: What does this come to include?
(c) Answer #1 (Abaye): One who left a stone, knife or load on top of his roof, and they fell in a common wind and damaged.

1. Question: What is the case?

i. Suggestion: If they damaged as they were falling - this is exactly as fire (i.e. there is no need to learn from a Tzad ha'Shavah)!
ii. These have another power participating, they are your money and your responsibility to guard them - this is just as fire!

2. Answer: Rather, they damaged after they came to rest.
3. Suggestion: If the owner made them Hefker - Rav and Shmuel agree, this is exactly as a pit!

i. They are prone to damage from the beginning, they are your money and your responsibility to guard them - this is just as a pit!

4. Rather, he did not make them Hefker.
5. Question: According to Shmuel, this is exactly as a pit!
6. Answer: Really, he made them Hefker; this is unlike a pit, for another power participated.

i. We need to learn from fire that participation of another power does not exempt.

7. Question: We cannot learn from fire, fire moves and damages!
8. Answer: We learn from a pit that even stationary damagers are obligated.

i. This is the Tzad ha'Shavah of the Mishnah.

(d) Answer #2 (Rava): We learn a pit (i.e. an obstacle) that is kicked around by people and animals.

1. Question: What is the case?
2. Suggestion: If the owner made them Hefker - Rav and Shmuel agree, this is exactly as a pit!

i. They are prone to damage from the beginning, they are your money and your responsibility to guard them - this is just as a pit!

3. Rather, he did not make them Hefker.
4. Question: According to Shmuel, this is exactly as a pit!
5. Answer: Really, he made them Hefker; this is unlike a pit, whose damage is due to the owner's action (digging it);

i. Here, the damage is not due to the owner's action (rather, to whoever kicked it to the place where it damaged!)

6. We learn from an ox that one is obligated even when the damage is not due to the owner's action.
7. Question: We cannot learn from an ox, it normally moves and damages!
8. Answer: We learn from a pit that even stationary damagers are obligated.

i. This is the Tzad ha'Shavah of the Mishnah.

(a) Answer #3 (Rav Ada bar Ahavah): The Mishnah includes the following case.

1. (Beraisa): One is allowed to empty his waste water or the refuse of his cave into the public domain in winter, not in summer;

i. Even though this is permitted, he is responsible for any resulting damage.

2. Question: What is the case?

i. Suggestion: If they damaged before they came to rest - this is a result of his action (i.e. this is a man that damages, there is no need to learn from a Tzad ha'Shavah)!

3. Answer: Rather, they damaged after they came to rest.
4. Suggestion: If the owner made them Hefker - Rav and Shmuel agree, this is exactly as a pit!

i. They are prone to damage from the beginning, they are your money and your responsibility to guard them - this is just as a pit!

5. Rather, he did not make them Hefker.
6. Question: According to Shmuel, this is exactly as a pit!
7. Answer: Really, he made them Hefker; this is unlike a pit, which was forbidden to dig - here, the owner did not transgress!

8. We learn from an ox that one is obligated even when the owner did not transgress.
9. Question: We cannot learn from an ox, it normally moves and damages!
10. Answer: We learn from a pit that even stationary damagers are obligated.

i. This is the Tzad ha'Shavah of the Mishnah.

(b) Answer #4 (Ravina): The Mishnah teaches the following case.

1. (Mishnah): A wall or a tree fell into a public domain and damaged - the owner is exempt;

i. If Beis Din fixed a time by which he must cut his tree or destroy his wall - if they fell within this time, he is exempt; if they fell after this time, he is obligated.

2. Question: What is the case?
3. Suggestion: He made them Hefker - Rav and Shmuel agree, this is exactly as a pit!

i. The damage is common, they are your money and your responsibility to guard them - this is just as a pit!

4. Rather, he did not make them Hefker.
5. Question: According to Shmuel, this is exactly as a pit!
6. Answer: Really, he made them Hefker; this is unlike a pit, which is prone to damage from the beginning; these were not prone to damage from the beginning;

i. We learn from an ox that one is obligated even when they are not prone to damage from the beginning.

7. Question: We cannot learn from an ox, it normally moves and damages!
8. Answer: We learn from a pit that even stationary damagers are obligated; this is the Tzad ha'Shavah of the Mishnah.

(a) (Mishnah): He must pay for the damage...
(b) (Beraisa - R. Yishmael): "From the best of his field and vineyard he will pay" - from land equal to the best land of the damagee;

1. R. Akiva says, the verse teaches that damages are collected from Idis, Kal va'Chomer to Hekdesh.

(c) Question: According to R. Yishmael - will the payments be from high quality land, whether high or low quality land was damaged?!
(d) Answer #1 (Rav Idi bar Avin): The case is, a patch of the field was consumed, we are unsure which one - he pays for a high quality patch.

1. Objection (Rava): If we knew that he ate a low quality patch, he would pay low quality land - now that we are in doubt, the one who wants to collect must bring proof!

(e) Answer #2 (R. Acha bar Yakov): The case is, the Idis of the damagee is as the Ziburis of the damager;

1. R. Yishmael holds, the payments are as the Idis of the damagee; R. Akiva holds, the payments are as the Idis of the damager.

(f) Question: What is R. Yishmael's reason?
(g) Answer: He learns a Gezeirah Shavah "Sadeh-Sadeh" (that the field from which payments are made is as the damaged field).

1. R. Akiva learns "From the best of his field and vineyard he will pay" - the field of the one who pays.
2. R. Yishmael says, we learn from the Gezeirah Shavah and from R. Akiva's verse.

i. We learn from the Gezeirah Shavah - as above;
ii. We learn from R. Akiva's verse - for example, if the damager had Idis and Ziburis, and his Ziburis is worse than the Idis of the damagee - he must pay Idis.