Jewish audio on Chabad.org. Today's שיעור will be מסכת בבא קמא דף ו', and we'll start from the top of the עמוד. The גמרא quotes from the משנה: הצד השוה שבהן, the common point in all the אבות נזיקין is, as the משנה says, that all of them are דרכן להזיק, they're all things which their דרך, their custom is that they do damage, ושמירתן עליך, they are all things that you are obligated to watch, and concerning all things the דין is: וכשהזיק חב המזיק לשלם תשלומי נזק במיטב הארץ, that if the damage was caused, then the one that caused the damage is obligated to pay for the damage במיטב הארץ with the best of his fields. And the גמרא asks: לאתויי מאי? What do these words הצד השוה שבהן come to add, come to include? Since the משנה mentioned all the four אבות נזיקין, what was the purpose of the משנה to mention at the end that there is a common point in all the אבות נזיקין? What do we gain by knowing that there is something common in them all? Obviously it is because the משנה wants to tell us that there is another thing in נזיקין, there's another kind of היזק which was not mentioned in the משנה, but after we know that there is a common point in the אבות נזיקין, we could learn out a different type of היזק, too. Because this is usually where we use the term הצד השוה.

Whenever we want to learn out a דין in a certain case from a different דין, and we find a חומרא in that different דין, in the source that we're trying to use, and we say that we cannot learn out the דין in the second place from the first, because the first has a certain חומרא that the second doesn't have, and maybe this is the reason why the דין is so in the first case because of that חומרא, and therefore, since the second doesn't have the חומרא, we cannot apply the same דין to the second, so what we usually do is, if we're able to find another place where the דין is the same and it doesn't have that חומרא, so we try to use that other דין as the source to learn out from there the דין that the same thing would apply here, too. If we find another חומרא in that second דין, too, and therefore we cannot learn out the דין from the second place, because we can ask the same question, that maybe the reason why the דין is so in the second place because of that חומרא, so what we usually would do is we would go back to the first and we say: Look, the first one doesn't have the חומרא the second has, and nevertheless it is חייב, let's say, so obviously the חומרא, this חומרא is not the reason for the חיוב, and we could learn out from that second place to the דין we want to learn out. But then we could ask, but the first place has its own חומרא. But then we say, but look at the second דין, doesn't have that חומרא, so obviously this is not the reason for the דין, not the חומרא that the first one has is the reason for the דין. And that's what we do: We ask a question, the חומרא of the first, and we say the second one will prove that that is not the cause. Then we ask a question on the second, and we go back and we say the first is not the cause. So

obviously, not this חומרא and not that חומרא is the cause for the חיוב, let's say. So what is the cause for the חיוב? So we must say the cause for the חיוב, let's say, is the צד השוה, is the common point between the two, not the חומרא that each one has, but the צד השוה, the common point that both has. And therefore we say that any other place that also has the same as this צד השוה, has the same characteristics as the common point of both, so then we know that the same דין that we find in those two would apply to the third place that we're trying to learn out. So since our משנה uses the term הצד השוה, obviously the משנה is trying to tell us that we have to look at the צד השוה, the common point in these אבות נזיקין, and through knowing that common point, we will be able to learn out another case of נזיקין that should also be חייב. So the גמרא's question is: Which other case does the משנה come to include, come to add, that we will learn out from the צד השוה of these אבות נזיקין? The

גמרא says: אמר אביי, אביי said, לאתויי, this comes to add, אבנו סכינו ומשאו, his stone, or his knife, or his package, שהניחן בראש גגו, that a person left on top of his roof, ונפלו, and they fell down ברוח מצויה with a common wind, והזיקו, and they did damage. So we want to learn out from the משנה that the person who put those things on top of the roof, he is חייב to pay for the damage it caused. And as the גמרא will explain, the only way we could know that the person would be חייב for doing this is only if we have a צד השוה and we learn it out from a common point from two of the אבות נזיקין. And the גמרא explains why. First, the גמרא says, היכי דמי? In which cases are we talking about? אי בהדי דקא אזלא מזיקא, if it caused the damage while it was going, in other words while it was falling off the roof. It hurt somebody, it caused the damage, היינו אש. This is

ממש similar to the damage of אש. We don't have to come on to a צד השוה, to a common point, of more than one of the נזיקין to learn out this דין. This could be learned out directly from אש. This is ממש similar to the היזק of אש, of fire. Because מאי שנא אש? Why is אש different? דכח אחר מעורב בו. What is the characteristic of אש? That there is another power involved. The reason אש travels and causes damage is because there is a wind involved, the wind blows it. וממונך, and also אש is your money, and as תוספות said before, it doesn't mean your money, but it means it's under your control. ושמירתו עליך, and you are able to watch it. And therefore, if you did not watch it and it caused damage, you are חייב. הני נמי, these too, if you left a package or a knife or a stone on top of the roof and it fell down with a common wind, which means you could have expected the wind to come, and it fell down and it caused damage while it was going, so these too, כח אחר מעורב בהן, there is another power involved. What made it fall? The wind. וממונך, it is your property. ושמירתו עליך, its control is upon you, you are able to control it. So you should also be חייב. So in order to be חייב for אבנו, סכינו, ומשאו you put on top of the roof and it caused damage while it was falling, we don't have to come on to a צד השוה, we could learn it out directly from אש. So we cannot say that this is what אביי meant when he said that the צד השוה comes to teach us this דין, because for this, we do not need a צד השוה. אלא, therefore we must say, בתר דנייח, that after you put the, the package, or the stone, or the knife on the roof and it fell down with a common wind, it caused damage after it rested on the floor. In other words, it fell down and someone got hurt by the package laying on the floor. But the גמרא שאלה is, again, we do not need a צד השוה for that. אי דאפקרינהו, if it's a case where you were מפקיר it, you gave up the ownership over these objects, so then בין לרב בין לשמואל, according to רב and according to שמואל, היינו בור, this is בור. This has the same דין as a pit and could be learned out directly from בור. And as we learned in the גמרא before, that there's a מחלוקת between רב and שמואל concerning if you leave something in the street and it caused damage, whether we learn it out from בור or not. And the גמרא says there, that if it's a package or anything that you left on the street that is not yours, you gave up your ownership, you were מפקיר it, then everyone agrees, רב and שמואל agree, that this is learned out from בור, and has the exact same דין as the בור, as the pit. The only מחלוקת is if you were not מפקיר it, if you did not give up ownership. Then there is a question whether we learn it out from בור or not, and the reason is because בור doesn't belong to the person. When a person digs a pit in the street, it is not his pit. He's only responsible because he caused the damage, he made the hole, but the hole does not belong to him, it's in public property. So therefore, when you leave a package or anything else in the street and it causes damage and it belongs to you, so then according to one opinion, it is not similar to בור because a בור does not belong to you, but the reason you are חייב is because we learn it out from שור, we learn it out from ox. Just like a שור belongs to you and you are חייב for its damage, so too anything that belongs to you that caused damage, you have to pay for. But in the case where you were מפקיר it, so then according to רב and according to שמואל, it is בור. And the גמרא explains why it is like בור. Because מאי שנא בור, why should בור be different? שכן תחילת עשייתו לנזק. One of the characteristics of בור is that from its beginning it is there to cause damage. When you dig a hole, from the beginning of your involvement, from the beginning of making it into a hole, into a pit, it is something that is ready to cause damage. וממונך, and it is your money, and again as we said before, תוספות says it doesn't actually mean it's your money, but it's the one that you did. ושמירתו עליך, and you are obligated to watch it, to control it, and therefore you are חייב for בור. הני נמי, these too, the package that fell down and caused damage after it was on the floor already, also תחילת עשייתו לנזק. From when it rested to the floor, the beginning from it when it became a בור, it was ready to do damage. So it has the same characteristic as בור. And וממונך, it is your money. And even though we are talking about the case when you were מפקיר, you gave up your ownership of the package Nevertheless the גמרא refers to it as ממונך, as your money, because it started off as being your money. ושמירתו עליך, and also you are obligated to watch it. So you are חייב for that, too. In other words, in order to be חייב for these things that fell on the floor and caused damage while it was on the floor, we do not need the צד השוה to tell us that you're חייב. We could learn it out directly from בור. אלא, but you might say, דלא אפקרינהו. It's in the case where you did not give up your ownership over these things. So again, לשמואל, according to שמואל, דאמר that says כולם מבורו למדנו, that we learn all damage that is done through your property, we learn out from בור, even if it is not similar to בור in this one thing, that a בור doesn't belong to you and this does belong to you, nevertheless, שמואל holds we learn it out from בור, so again, היינו בור. So this is like בור. So even if you did not give up ownership over the stone or the knife or the package and it caused damage, we still don't need the צד השוה to tell us you're חייב. We could learn it out directly from בור, as שמואל says that this is בור. So the question is, what did אביי mean when he said that we need the צד השוה to teach us that if you left a stone or a knife or a package on the roof and it fell down with a common wind and caused damage, you're חייב? In which case was that that we need the צד השוה? And the גמרא says, לעולם the truth is I'll tell you דאפקרינהו. It's in a case where you were מפקיר it. In other words, it's a case where it caused damage after it rested on the floor. And it's a case where you were מפקיר it, you gave up your ownership over it. And the question we asked before that why do we need the צד השוה? Why can't we learn it out directly from בור? So he says, ולא דמי לבור, it's not similar to בור. Because we could say, מה לבור, you know why בור is חייב? There is a special characteristic in a regular pit, שכן אין כח אחר מעורב בו, there is no other power involved. As soon as you dig the pit, the pit is there, ready to cause damage. תאמר בהני, but let's speak about these, שכן כח אחר מעורב בהן, that in order for them to cause damage, there has to be another power involved. In other words, the only way this stone or this knife or this package could have caused damage after the person put it down on the roof is only if something else came to it and pushed it down on the floor, and then it turned into בור. So we would say that we cannot learn this out from בור, because it is not similar to בור. If you put down a package directly on the floor, that is ממש like בור. You put down an object which is ready to cause damage, similar to digging a hole in the street. But here, you put down the object on top of the roof. The only way it could turn into a בור is if there is another power that will come, the wind that will come and throw it down. So we would think maybe you are not חייב like בור. In a case like that, you should be פטור. So what do we say? אש תוכיח. We could prove that even though there is another power involved, nevertheless you should be חייב, as we see in אש. Because אש, when you cause damage through fire, it is also through a כח אחר. You start a fire in one place, the wind comes and blows the fire someplace else and causes damage, and you are חייב. So we see from אש that even if the only way it caused damage was through another power, nevertheless, you are חייב. So therefore, we cannot say that in the case of the package or the knife or the stone that was put on top of the roof, you should be פטור because the only way it caused damage was through another כח. Here we see that the fact that another כח caused helped it to cause the damage doesn't make it פטור. But then we could say, how can we learn it out from אש? מה לאש, שכן דרכו לילך ולהזיק. אש, the way אש causes damage is through going and being מזיק, while the case we're talking about here is when it caused the damage after it rested on the floor, so it is not similar to אש. אש caused the damage while it was going, and here we're talking about the stone, the knife or the package that caused the damage after it was laying on the floor and someone got hurt over it, but not that the package or the stone or the knife went to the person to cause him damage. So then maybe you should not learn it out from אש, and maybe you should not be חייב. But then we answer, בור תוכיח. We'll prove it from בור. בור also doesn't go and being a מזיק, and nevertheless you're חייב. So too, in this case, even though it caused the damage not through going, but after it rested, you're also חייב. וחזר הדין, and this דין, this discussion could go back and forth forever. As soon as you answer that we prove from בור that even though it doesn't, it isn't מזיק while it's going, you're חייב, so we will learn it out from בור, we could ask, but בור is not similar either, as we said before, because בור, there is no כח אחר מעורב, there's no other power involved. Then we answer, so we'll prove it from אש. אש does have another power involved, and you're still חייב. Then we ask, but אש is not the same because אש is מזיק while it's traveling, so we answer בור יוכיח, and we constantly go back and forth. And what do we do? We say that this proves that none of these two characteristics is the reason for the חיוב, the reason why you're חייב. So what is the reason why you're חייב by בור and by אש? It's because of the הצד השוה, because of the equal point that both have, the common point that they are both something which are מזיק and you're חייב. So from here, both together we're able to learn out. So too, the knife or the stone or the package that you put on top of the roof, and it fell down and it caused damage after it fell down, you should be חייב because here too you have that common point that בור and אש have, because it is also something that causes damage, so you should be חייב. And this is what אביי says the משנה meant when it added the words הצד השוה comes to add this דין, that from the הצד השוה, from בור and אש, we're able to learn out this דין too. רבא אמר, but רבא says, לאתויי comes to include something else. בור המתגלגל ברגלי אדם וברגלי בהמה, a pit that rolls through the feet of people or through the feet of animals. It doesn't really mean a pit, it means an object which could cause damage, היזק, but it didn't cause the damage in the place where it was put down, but after it was put down it was pushed away through people or through animals, and in the second place it caused damage. And that's what we need the הצד השוה for, that to know that a person who put it down is חייב, we only could know from הצד השוה, but we cannot know it from one of the מזיקים itself. And the גמרא explains: היכי דמי, in which way is it talking about? אי דאפקרינהו, if after the person put it down, he was מפקיר it, he gave up his ownership, so again, בין לרב בין לשמואל, היינו בור, whether according to רב or שמואל this is בור, like we said before, any object if you put down in the street, and you give up ownership, everyone agrees that you're חייב for any damage caused, because it's like בור. מאי שנא בור, why should בור be different? שכן תחילת עשייתו לנזק, that from the beginning when it's done, in other words, from its beginning of becoming a בור, it is able to cause damage, ושמירתו עליך, and you are obligated to watch it, and that's why you're חייב. הני נמי, these too, the object that you put down on the floor that was kicked around, this too תחילת עשייתו לנזק, when you put it down it was ready there to cause damage, ושמירתו עליך, and you're obligated to watch it, so you should be חייב for it because of בור. So we don't need the הצד השוה for that. אלא, so you'll tell me דלא אפקרינהו, maybe it's a case where you were not מפקיר it, you did not give up ownership. But still, לשמואל, according to שמואל, דאמר, he says, כולם מבורו למדנו, that all types of damage that you put in the street even if you did not give up ownership, we all learn it out from בור, היינו בור, so again, it is בור, so we don't need the הצד השוה, we could learn it out directly from בור, that just like digging a hole, you are חייב for any damage caused, so anything that you put down in the street and it causes damage you should be חייב for it. And we do not need the הצד השוה. So what did רבא mean when he said that the הצד השוה comes to add the דין of the thing that you put down in the street that was kicked around and caused damage later? So the גמרא says, לעולם באמת I could tell you דאפקרינהו, that you were מפקיר it. It's a case where you put it down and you gave up your ownership. So the question we asked before, why do we need the הצד השוה, let's learn it out directly from בור, so he says, דלא דמי לבור, it is not similar to בור. And the only way we could know it's חייב is we could learn it out from two מזיקים. Why is it not similar to בור? Because we could say, מה לבור, you know why בור is חייב, שכן מעשיו גרמו לו, because his action caused it. Nothing else happened to it. He made the hole, and that itself caused the damage. A person passed by or something passed by and got hurt, so it's his מעשים, his action that was the direct cause to the damage. תאמר בהני, but let's say about these, the object that was put down and caused damage after it was kicked around, שאין מעשיו גרמו לו, that not his action caused it. In other words, when he put it down, in the place where he put it down, it did not cause any damage. Other people or animals kicked it around and then it caused damage. So it's not his action that caused the damage, because since it caused the damage someplace else, it's not he that put it over there. It came there through some other way. So if we're going to just compare it to בור, we would be able to say that you should not be חייב, because it is not ממש completely similar to בור. So what do we do? So we say, שור יוכיח, we'll prove it from שור. That just like by שור, it is not the מעשים of the person that caused the damage, the שור on his own, the ox on his own caused the damage, it is not the person that caused the damage, and nevertheless you are חייב, so too, by this thing that you put down and it was kicked around and caused the damage further on, even though it is not your action that caused the direct damage, you should also be חייב, similar to שור. But we can't learn it out only from שור because we could ask מה לשור, you know why שור is חייב, שכן דרכו לילך ולהזיק, because his דרך is to go and to be מזיק. The שור on his own goes and could cause damage, but the object you put down that was

kicked around, it is not its own דרך to go and to cause damage, it was kicked around by others. So I would say that you cannot compare it to שור. You could say maybe שור is טאקע חייב because that's the דרך to go and to be מזיק, while this is not the דרך. So what do we do? בור תוכיח. We say, let's prove from בור. We see that a בור also the דרך of a בור is not to go and to be מזיק, it's מזיק only in its own place, and nevertheless, you are חייב. So too, the object you put down and it's not its דרך to go and be מזיק, you should also be חייב. But then וחזר הדין, then the דין will go on, the discussion could go back and forth, because after we say בור תוכיח, we could ask the question on בור, that by בור מעשיו גרמו לו, while by these not, and we'll answer שור יוכיח. Then we'll ask again on שור, that by שור it's דרכו לילך ולהזיק, and we'll answer בור תוכיח, and we'll go on and on forever. So this proves that not the idea of דרכו לילך ולהזיק is the reason for its חיוב, because you see בור doesn't have that characteristic and nevertheless you're חייב. Also, not the characteristic of מעשיו גרמו לו by בור is the reason for חיוב, והא ראיה, שור doesn't have that characteristic and he's still חייב. So obviously, the reason you are חייב is because of the הצד השוה, because of the common point between the two, which is that they are both מזיק, וממונך ושמירתן עליך, and you are חייב, so we could learn out from there, so too that that בור, that object that was put down in the street and kicked around ברגלי אדם וברגלי בהמה, that the person who put it down should be חייב. And that's what the משנה meant according to רבא, when the משנה added the words הצד השוה שבהן, etc. Then the

גמרא continues, רב אדא בר אהבה אמר, רב אדא בר אהבה said that the words of the משנה, הצד השוה שבהן, לאתויי הא דתניא, comes to add something else: we learn in a ברייתא, כל אלו שאמרו פותקין ביבותיהן, all those that they said that are allowed to open their gutters, וגורפין מערותיהן, and they're allowed to sweep their cave, sweep their cellars, בימות החמה אין להם רשות, summertime they have no permission, בימות הגשמים יש להם רשות, in the wintertime they do have permission. This means that when the חכמים said that a person is allowed to open up the pipes, the gutters where the water is and to let out his water, dirty water, into the street, or a person is allowed to sweep his cellar, sweep his cave, and sweep it out into the street, this was only said in wintertime, but not in the summertime. And the reason for that is because in summertime, the street is very nice, and by letting the dirty water and putting the dirt into the street, you will spoil the view of the street, but wintertime, since it is dirty anyway, the חכמים said that a person has a right to put all those things into the street. Nevertheless, it says אף על פי שברשות,

even if a person did it with permission, in other words, if he did it during the wintertime, אם הזיקו, if this caused damage, חייבין לשלם, you have to pay. So רב אדא בר אהבה says this is what the משנה comes to add with the words הצד השוה שבהן, comes to include that if a person opened up his gutter and let his water out and it caused damage in the street, so he is obligated to pay. And the only way we could know that a person is חייב to pay for this, only if we learn it out from הצד השוה, but not from one of the אבות נזיקין, and the גמרא will explain. היכי דמי, what is this talking about? אי בהדי דקאזלא ומזקא, if it causes the damage while it's going, while he's sweeping it out, while he's letting it out, that's when it caused the damage, כוחו הוא, that is his כוח, his power, so you should be חייב because it is אדם המזיק, it is like the person himself caused the damage, because the דין is when a person himself causes damage he's חייב, as we learned before, but it doesn't only mean if he actually causes damage with his own hands. If he does something that directly from what he did there is a damage, he is חייב. For instance, when a person shoots an arrow, and that arrow causes damage, he is חייב, even though that that arrow was not his hand itself, but since it came directly from his כוח, from his power, he is חייב. So here too, if he

sweeps his dirt out into the street, and while he's sweeping it out, he caused damage, then he should be חייב because it was he that caused the damage, so he should be חייב for אדם המזיק. So we don't need הצד השוה for that, we could learn it out directly from אדם. אלא, so we must say, בתר דנייח, that means that it caused damage after he swept it out and it rested, then someone slipped over it and got hurt. היכי דמי, again, in which way is it talking about? אי דאפקרינהו, if he gave up his ownership, he was מפקיר it, so בין לרב בין לשמואל היינו בור, so according to רב and according to שמואל, it is a בור, and you should be חייב just because of בור. Because מאי שנא בור, why should בור be different? שתחילת עשייתו לנזק, its original becoming בור was was directly a source of היזק, וממונך, that it's your money, ושמירתו עליך, and its watching is upon you, you are obligated to watch it. הני נמי, these things too, תחילת עשייתן לנזק, from the beginning, when it was made, when you swept it out, it was already there ready to cause damage, וממונך, that it's your money, ושמירתן עליך, and you are obligated to watch it, so you should be חייב for that because of בור. אלא, so you'll tell me דלא אפקרינהו, it's a case where you did not give up your ownership. So again, לשמואל דאמר כולם מבורו למדנו, according to שמואל who says that anything that you put into the street that causes damage, we learn out from בור that you are חייב, so again, היינו בור. So this case too, it is like בור. So we can learn out that a person should be חייב for sweeping out his dirt into the street and causing damage, he should be חייב for בור, and we do not need הצד השוה. The גמרא answers, לעולם, the truth is, I'll tell you דאפקרינהו, and it's a case where it caused damage after it rested, and it's a case where you were מפקיר it, you gave up your ownership. And the question we asked before, that

why do we need הצד השוה to tell us you are חייב? Why can't we learn it out directly from בור? So he says, ולא דמי לבור, it is not similar to בור, because we could say that בור is different: מה לבור שכן שלא ברשות, you know what why בור is חייב, because when you made the בור, it is without permission. Because you were not allowed to make that pit, and maybe that's why you're חייב. תאמר בהני, but let's say by these, דברשות, that you did it with permission, because we said before that you are חייב even if you had permission to put it out, even if you did it in the wintertime when the חכמים gave the person permission to do it, so maybe if you did with permission, you should be פטור, so we cannot learn it out from בור. So what do we say? שור יוכיח, שור could prove. A שור goes in the street with permission, and nevertheless, if he causes damage, the person is חייב. So too here, even though you put it out with permission, if it caused damage, you are חייב. But then we say, we cannot learn it out from שור either, because there is something else in שור which is a reason for it to be חייב: מה לשור, you know why שור is חייב, שכן דרכו לילך ולהזיק. The דרך of a שור is to go and to be מזיק. But the things you put out in the street, it is not the דרך to go. In other words, it was מזיק while it was laying in its place, and someone slipped over it. But it didn't go to the thing and cause a damage. So maybe we cannot learn it not from שור, because it is different than שור. So we answer בור יוכיח, בור will prove. You see, בור doesn't have the characteristic of going to the person and causing him damage, and nevertheless you are חייב. וחזר הדין, this could turn and go on and on, because after you prove it from בור, we could ask the question on בור that you, בור is different because it's done without permission. And then we answer שור יוכיח, that שור will answer that question. And then we ask a question on שור again, that שור is דרכו לילך ולהזיק, and we answer בור יוכיח, and we go on and on. And that proves that not the reason for being חייב by בור is because שלא ברשות, as we see שור doesn't have that characteristic and is חייב. The reason for שור cannot be because דרכו לילך ולהזיק, because see, בור doesn't have the characteristic and still is חייב. So what must be the reason for the חיוב? הצד השוה, the common point that, as the משנה says, it is the דרך to be מזיק, and you have to watch it, etc. So from here we could learn out that so too, if you sweep out your garbage or you let your water from your pipes from your gutter out and it caused damage, you are חייב, because this case also has the same צד השוה that those two have. רבינא אמר, רבינא says, לאתויי הא דתנן, it comes to include, to add, the משנה with the words הצד השוה comes to add a different thing. We learn in a משנה: הכותל, the

wall, והאילן, and the tree, שנפלו לרשות הרבים, that fell into the street, והזיקו, and they caused damage, פטור מלשלם, you are פטור from paying, because it's not your fault, it fell down and you are not responsible. נתנו לו זמן לקוץ את האילן ולסתור את הכותל, if the בית דין gave the person a specific time when he must cut off his tree or when he must knock down the wall—the בית דין saw that his wall was falling, his tree was falling, so they said to him, "We give you a time, by then you must cut off your tree and you must knock down your wall"—so the דין is that if נפלו בתוך הזמן והזיקו פטור, if they fell down during that time, he is פטור, because he still had time to do it. But if it fell down לאחר הזמן, after the time, he was already supposed to get rid of it and he didn't, so then if it fell down, you are חייב. Since you should have gotten rid of it already, because it's already after the time, and you didn't, so you are חייב. And this is what he says the משנה meant with the words הצד השוה, it comes to add this דין, that if you were given a time when you must knock down your tree and knock down the wall, and you didn't, the time passed and it's caused damage, you are חייב. And the גמרא is going to explain why we need הצד השוה. But before we go into that, it's important to explain that when the גמרא says here that the damage was caused by the tree or by the wall that fell down, when did it cause the damage? Did it cause the damage while it was falling, or did it cause the damage after it fell down? And תוספות goes into the details and explains that באמת we could say that the גמרא refers to both, whether it caused damage while it was falling, or it caused damage after it fell down. The only question we could ask, if we're talking in a case where it caused damage while it fell down, how could the גמרא compare it later on to בור? Since a בור causes damage in one place, and this caused damage while it was going. And תוספות says that that doesn't matter, because a fact that this caused damage while it was going is not a קולא but a חומרא. On the contrary, that certainly you should be חייב. If you are חייב for בור that causes damage while standing in one place, certainly you should be חייב for something that caused damage while it was going to the thing that it caused the damage to. So it certainly could be learned out from בור with even a קל וחומר. And therefore we could say, תוספות says, that it's speaking about both. It's speaking about the damage that it caused during its falling, it also is speaking about the damage it could have caused after it fell down, that for that too you're חייב. And both of these cases, the גמרא means we learn out from the הצד השוה from the משנה. And the גמרא is going to explain why we have to have a צד השוה. And the גמרא says, היכי דמי, what is the case talking about? אי דאפקרינהו, if he was מפקיר, he gave up ownership over the tree or over the wall and that's when it caused damage, בין לרב בין לשמואל היינו בור. Whether according to רב or according to שמואל, we could learn it out from בור. מאי שנא בור? Why should it be different? Why should בור be different? דהזיקא מצוי, the characteristic of בור is that its damage is common, ושמירתו עליך, and you are obligated to watch it, הני נמי these too, הזיקא מצוי its damage is common, ושמירתן עליך, and you have to watch it, so you should be חייב for this too. And even though the גמרא said before that רגל is considered הזיקא מצוי, that only the damage of רגל, the damage of an ox through its feet is considered הזיקא מצוי because it constantly walks and steps on everything that's in its way, and therefore that's called הזיקא מצוי, but בור is not considered הזיקא מצוי. So רש״י explains that

רגל is definitely הזיקא מצוי. בור is not as מצוי, not as common as רגל, but nevertheless it is מצוי. And therefore we could consider it as a characteristic of בור, a fact that it is הזיקא מצוי. And that's what the גמרא says, that just like בור is הזיקא מצוי, its damage is common, and you are obligated to watch it, and if you didn't and it caused damage you are חייב, so too these things הזיקא מצוי, especially that you were told to knock them down earlier and you didn't, so definitely the היזק that it could cause is מצוי, is common, and you are obligated to watch it, so here too you should be חייב, similar to בור. So we don't need a צד השוה to tell us that you are חייב for this wall or tree that caused the damage, we could learn it out directly from בור. אי דלא אפקרינהו, and if it's a case where you did not give up your ownership, again, לשמואל דאמר כולם מבורו למדנו, according to שמואל who says that any damage that's caused by something you put into the street we learn out from בור, היינו בור, so again, this is בור, and we do not need a צד השוה. And the גמרא answers, לעולם, the truth is I'll tell you, דאפקרינהו, it's a case where you were מפקיר it, and therefore it should be בור according to everybody. But still we need a צד השוה because ולא דמי לבור, it is not similar to בור 100%, because we could ask a question, מה לבור, you know why בור is חייב, שכן תחילת עשייתו לנזק. From when it was put down, it could be a source of נזק, it is right away something that could cause damage. But these things, the wall and the tree, when it was put down, it wasn't for damage. A wall stood to whatever it was supposed to do, the tree was not for damage, so maybe here you should not be חייב? And the גמרא answers, שור יוכיח, we'll prove from שור. You see, שור, and even though it is not תחילת עשייתו לנזק, from when it's there, it is not לכתחילה something that could cause damage, and nevertheless you're חייב. So this too, the wall and the tree, even though that it's not תחילת עשייתו לנזק, still you should be חייב if it causes damage. But then we could ask that you cannot learn it out from שור either because מה לשור, you know why שור is חייב, שכן דרכו לילך ולהזיק, because its דרך is to go and to be מזיק, while this wall its דרך is not to go and to be מזיק. So we say בור יוכיח, בור will prove that even though its דרך is not to go and be מזיק, nevertheless you're חייב, so for this too you should be חייב. וחזר הדין, and you could go back again, and you could ask a קשיא, that how could we learn it out from בור when בור is תחילת עשייתו לנזק and this is not, and we'll answer שור יוכיח. And then we'll ask the same question on שור, שכן דרכו לילך ולהזיק, and then we'll answer בור יוכיח, we'll go on and on forever, and that shows that not the ענין of תחילת עשייתו לנזק is the reason why you're חייב for בור, not the ענין of דרכו לילך ולהזיק is the reason why you're חייב for שור. So what is the reason why you're חייב for בור and שור? It is the צד השוה, the common point, that it's דרכו להזיק, its דרך is to be מזיק. It could cause damage, and you are obligated to watch it, and since you didn't watch it, you are חייב. So, too, this wall that fell down, and this tree that fell down, since you were obligated to watch it and it could cause damage, you are חייב. And this is what the משנה meant when it said הצד השוה שבהן, which came to include a new דין of נזק, it meant this דין. This is the סברא that רבינא said. Then the גמרא continues, it said in the משנה, כשהזיק חב המזיק, that if he caused damage, then the מזיק, the one that caused the damage, is obligated to pay. But the term that the משנה uses is not the common term. Usually, when we want to say that someone is obligated to pay, we say he is חייב, ח-י-י-ב. But here the

משנה uses the לשון, כשהזיק חב המזיק, and skips the י-י, and it just uses the ח-ב. So the גמרא asks, חב המזיק, the לשון in the משנה, the expression in the משנה is חב המזיק, חייב המזיק מבעיא ליה, didn't he have to say the לשון, חייב המזיק? אמר רב יהודה אמר רב, so רב יהודה said in the name of רב, האי תנא ירושלמי הוא, the תנא of this משנה is from ירושלים, דתני לישנא קלילא, that he learned an easy לשון. In ירושלים, they used to speak easier, which means they would condense certain words, and therefore, instead of using the word חייב, he used the word חב. Then the גמרא continues and quotes from the משנה. It said in the משנה, לשלם תשלומי נזק, that if the person is obligated to pay for the נזק, for the damage, he has to pay, the משנה said, ממיטב הארץ, from the best of the fields. So the גמרא says, תנו רבנן, the רבנן learned, the פסוק says that when you pay for the damage, מיטב שדהו, the best of his field, ומיטב כרמו, the best of his vineyard, ישלם, he should pay. The גמרא explains it, מיטב שדהו של ניזק, the best of the field of the ניזק, of the one that got the damage, ומיטב כרמו של ניזק, and the best of the vineyard of the ניזק, דברי רבי ישמעאל, that's what רבי ישמעאל holds. And as רש״י explains, at this point the גמרא feels that the פשט in the words of רבי ישמעאל is that if one's animal ate up a plant of somebody else, so then you don't have to pay the amount that that plant was worth. You go into the field of the ניזק, and you see how much is his best plant worth, and that's how much you would have to pay, even if the animal ate up not the best, ate up a much weaker one, but nevertheless, you have to pay the amount that his best is worth. That's what רבי ישמעאל holds. רבי עקיבא אומר, but רבי עקיבא says, לא בא הכתוב, the פסוק did not come, אלא, but, לגבות לניזקין מן העידית. All that comes to tell us is that when you pay for ניזקין, you pay for damages, you have to pay with the best, which means the best of the מזיק, the best of the person who caused the damage. That if a person wants to pay with real estate, with property, instead of paying with money, so then he has to give the best field. If he has a few kinds of fields, different quality, he has to pay with the best of his fields. That's all it means. And then רבי עקיבא adds, וקל וחומר להקדש, and certainly בהקדש, certainly when you come to pay to הקדש, you have to give your best. And the גמרא will explain later on what he meant with these words, וקל וחומר להקדש. Then the גמרא asks, ולרבי ישמעאל, and according to רבי ישמעאל, אכל שמנה משלם שמנה? We understand that if he ate a fat one, he ate a good plant, you pay for the worth of a good one. אכל כחושה משלם שמנה? If he ate a skinny one, a weak one, do you also pay for the fat one? As we said before, the גמרא thought that according to רבי ישמעאל, you always look at the best plants of the ניזק, and that's how much the מזיק would have to pay. So it comes out that even if we know that the animal only ate from a skinny plant, which was worth less, nevertheless, you have to pay for a fat one. And as the גמרא's קושיא, that doesn't make any sense. How can we say that according to רבי ישמעאל, if you ate a weak one, you ate a skinny one, you still have to pay as if he would have eaten a fat one, you have to pay more? אמר רב אידי בר אבין, so רב אידי בר אבין said, הכא במאי עסקינן, that we're talking about a case כגון שאכל ערוגה בין הערוגות, that the animal ate a plant that was among the plants, ולא ידעינן, we do not know, אי כחושה אכל, if it ate a skinny one, אי שמנה אכל, or if it ate a fat one. So since we don't know which one it ate, דמשלם שמנה, that's why you have to pay a fat one. If you would have

known that it ate a skinny one, you only pay as much as that one was worth. But if you do not know, then you have to pay for a fat one, you have to pay more. אמר רבא אמר רבא, so רבא said, this also doesn't make sense: ומה אילו ידעינן, let's say had we known דכחושה אכל, that it ate a skinny one, לא משלם אלא כחושה, you would only have to pay for a skinny one. השתא, now, דלא ידעינן, that we do not know אי כחושה אכל אי שמנה אכל, whether it ate a skinny one or a fat one, משלם שמנה, you have to pay for a fat one? המוציא מחבירו עליו הראיה, the one that's trying to take out from his friend, he's the one that's supposed to prove it. The דין is whenever one claims money from another, he has to prove that the money is owed to him. As long as he doesn't prove it, he doesn't get it. And here too, he wants to claim the fat one, he wants the person to pay more, and we do not know whether he owes him more or not. So as long as he doesn't prove that he owes him more, he doesn't have to give it to him. So why do we say that if it ate one that we do not know whether it was a skinny one or a fat one, you pay for the fat one? The דין should be that as long as you cannot prove that it ate a fat one, you do not have to pay for that. The גמרא says, אלא אמר רב אחא בר יעקב, so רב אחא בר יעקב said that the פשט is completely different, not the way we thought before the פשט in the words of רבי ישמעאל. But both רבי ישמעאל and רבי עקיבא hold that you never have to pay more than the damage was. The

only argument is that since the תורה says that if you want to pay with property, then you have to pay with the best of the property, the question is, what is considered best of the property? And as the גמרא will explain, do we consider best the best of the מזיק, or is best considered the best of the ניזק? And the גמרא explains, הכא במאי עסקינן, we're talking in a case כגון שהיתה עידית דניזק כשזיבורית דמזיק, the best of the ניזק was worth the same as the worst of the מזיק. The מזיק had two types of fields: the מזיק had very good quality fields, and he had bad quality of fields. The ניזק, his best quality of fields was worth as much as the worst of the מזיק. Now the question is, which field is he obligated to give? Can he give his worst because לגבי דניזק it's considered the best because the ניזק doesn't have any better, or must he give his best because we have to judge it based on the מזיק's quality of the field? ובהא פליגי, and this is what their argument is about. רבי ישמעאל

סבר, רבי ישמעאל so holds, בדניזק שיימינן, you judge it, we estimate it by the ניזק, by the one that damage was caused to. And therefore רבי ישמעאל holds that the מזיק could give his worst fields even though the תורה says you have to give your best, but this is considered best because we judge best based on what types of fields the ניזק has. And since his worst is the best of the ניזק, he could give his worst. But רבי עקיבא סבר, רבי עקיבא holds, בדמזיק שיימינן, we judge it, we estimate it by the מזיק. And since by the מזיק this is his worst, the מזיק has to give his best. But how much does the field have to be worth? Everyone agrees it only has to be worth the amount of the damage. You never have to pay more than the amount of the damage was worth. The only question was, do you give a bigger field of the worser one or can you give a smaller piece of field of the better one? And that is the מחלוקת. That in the case where the זיבורית of the מזיק is worth the same as the best of the ניזק, can you give the worst, a bigger piece of your worst because after all it is the best of the ניזק? Or must you give your best, a smaller piece of your best, because we judge it by the מזיק? And the גמרא explains, מאי טעמא דרבי ישמעאל, what is the reason of רבי ישמעאל? Why does רבי ישמעאל hold that we judge it by the ניזק? Because, he says, נאמר שדה למטה, it says the word שדה, field, lower down, that is the פסוק we mentioned before, מיטב שדהו, it says the best of his field, so the תורה uses the term שדה. ונאמר שדה למעלה, it says the word שדה earlier. It says ובער בשדה אחר, that if the animal will come in and destroy in someone else's field, so there too it uses the term שדה. So we say מה שדה האמור למעלה, just like the word שדה that says earlier is דניזק, refers to the ניזק, because the תורה says clearly ובער בשדה אחר, that if his animal will destroy in someone else's field, that means that he will enter the field of the other person and cause damage in that field. So that word שדה refers to the field of the ניזק, so אף שדה האמור למטה דניזק. So too, the word שדה that it says later on, that you have to pay the best of your שדה, so which שדה does he mean? דניזק, the same שדה as he mentioned earlier in the פסוק, which was the ניזק. And therefore רבי ישמעאל holds that when the תורה says you must give the best of your field that means best based on the fields of the ניזק. But רבי עקיבא, רבי עקיבא says, no, מיטב שדהו ומיטב כרמו ישלם, the תורה says you pay the best of his field and you should pay the best of his vineyard, דהאי דקא משלם, of the one that is paying. In other words, the simple פשט in the פסוק is, he pays the best of his field, the best of his vineyard, that means the best of the one that's paying. And therefore רבי עקיבא holds that you pay the best based on the fields of the מזיק. Then the

גמרא asks a קשיא on רבי ישמעאל: According to רבי ישמעאל, how does he learn פשט in the פסוק? Isn't the simple פשט in the פסוק that you have to pay the best of his field, the best of his vineyard, of the one that's paying? So רבי ישמעאל says, אהני גזירה שוה ואהני קרא. The גזירה שוה helps, and the פסוק helps. In other words, they are both true. When the גזירה שוה teaches us that you pay based on the value of the ניזק, that is true in one case, and when the פסוק says that you pay the best of the מזיק, that is true in a different case. And he explains how: אהני גזירה שוה, the גזירה שוה that says that it's to be based on the ניזק, that helps כי דקאמינא, as we said before, in a case where the מזיק has עידית and זיבורית, and the worst of the מזיק is worth as much as the best of the ניזק, that's where we use the גזירה שוה, and he could give his worst, because it is worth as much as the best of the ניזק. ואהני קרא, the פסוק that tells us that he has to give his best, the best of the מזיק, that also helps. כגון, for instance, in a case דאית ליה למזיק עידית וזיבורית, that if the מזיק has better quality fields and worse quality fields, ועידית לניזק, and the ניזק has good quality fields, but וזיבורית דמזיק, the worst quality fields of the מזיק, לא שויא כעידית דניזק, is not worth as much as the best of the ניזק. Now here, the question is, which one should he give? Since we say that in normal circumstances you give the best of the ניזק, but let's say the מזיק's worst are not as good as the best of the ניזק. So on one hand, he cannot give his worst because they're not as good as the best of the ניזק, and since we have to base it on the ניזק, so he cannot give his worst. On the other hand, if we'll tell him that he's going to have to give his best, that means that he's going to give a type of field which is better than the best of the ניזק, and since we have to judge it based on the ניזק, maybe he shouldn't have to give his עידית. So which one do you give? So here the פסוק that tells us that you have to give your best, the best of the מזיק, comes in a case like this that tells us דמשלם ליה, he has to pay him ממיטב דידיה, his best. That even though his best is better than the best of the ניזק, but since his worst is worse than the best of the ניזק, he has to give his best. ולא מצי אמר ליה, and he cannot tell him, תא גבי מזיבורית, come and take from my worst, because my best is better than your best, he can't say that to him. אלא גבי ממיטב, but he has to make him collect from the best. And this is what the פסוק means when the פסוק says that you have to give him your best. In a case like this, you must give him your best. But under normal circumstances, where the מזיק does have fields which are worth as much as the best of the ניזק, even though they are not his own best, he is able to give them to the ניזק because normally we say בדניזק שיימינן, we base it on the ניזק.

Concerning what we learned before, that one of the תירוצים in the גמרא, what the משנה meant with the צד השוה, was the case of כל אלו שאמרו פותחין ביבותיהן וגורפין מערותיהן, that when the חכמים said that you're allowed to empty, open up the gutters, you're allowed to sweep out the caves into the street, but if it caused damage you are חייב to pay for the damage. And the גמרא said that for that you have to have the צד השוה. And the reason why we needed צד השוה, and we couldn't learn it out from בור itself, the גמרא said because we could ask that בור was made without רשות, without permission, but these things were put out with permission, as the ברייתא says that during winter they have רשות, there is permission, the חכמים gave permission to put it there. So we would think that you would be פטור. And the answer is שור יוכיח. שור has permission to go, and nevertheless he's חייב. So we see that even though you have permission, you're still חייב. But then we ask that we cannot learn it out from שור either, and we said בור יוכיח, as we learned in the גמרא before. So here תוספות asks a very strong קשיא. We

learned earlier in the גמרא that there's a מחלוקת what שור means. Whether שור means בכל מילי דשור, שור means all three אבות of שור: קרן, שן, and רגל, or שור means רגל. And the גמרא said before that according to שמואל, שור means רגל. So תוספות asks, according to שמואל, how can the גמרא say שור יוכיח? When the גמרא asks the question that these things are different than בור because they were with permission, and we answer שור יוכיח, you see שור also had permission and nevertheless he's חייב. But if we hold שור is רגל, how can we say that? Because רגל is only חייב when there is no permission. The דין is that you are חייב for רגל only if the damage was done ברשות הניזק, in the רשות of the person you cause the damage to. If a person's שור causes damage with רגל in the רשות הרבים, you are פטור, as the תורה says, ושלח את בעירה ובער בשדה אחר, it has to be בשדה אחר, in the other person's field. In other words, you are only חייב for רגל if it was done in a place where it did not have the permission to enter. It was done in the other person's רשות. So how can the גמרא say here שור יוכיח, that we can prove from שור, that even though it went in with רשות, nevertheless you are חייב? If שור means רגל, it definitely went in without רשות because you are only חייב if it went into the רשות הניזק without permission. And תוספות answers that this refers to a case where the שור was walking in the street, in the רשות הרבים, where it has permission to go, and it stepped on pebbles, and the pebbles sprayed, flew, and hit something and damaged something in the רשות הניזק, in the other person's רשות, so he is חייב. תוספות says, as the גמרא says later on in the second פרק, that the owner is חייב for רגל even though it happened in the רשות הרבים, but because the damage was done in the רשות הניזק, you are חייב. And this is what the גמרא meant: this is a case of רגל where you are חייב because it was done in the רשות הניזק, and nevertheless the שור had the רשות to go because the שור was walking in the רשות הרבים, in the street, and caused the damage in the רשות הניזק. And this is what the גמרא meant when it said שור יוכיח, that שור will prove that even though it's with רשות, nevertheless you are חייב, according to the מאן דאמר that שור means רגל. But the רא"ש in the beginning of the פרק doesn't learn that way. The רא"ש in the beginning of the פרק quotes the רי"ף. The רי"ף gives a reason why שן ורגל are פטור in רשות הרבים. Why is the דין that if the שור damaged through שן, through tooth, through eating, or through רגל, through stepping, and it did it in the רשות הרבים, you are פטור? So the רי"ף says, because אורחיה, because this is the דרך. This is the common way an animal walks in the street, and therefore would step on anything, it would eat anything that's there, and it's impossible for the owner to watch it. What should we say, that the person should not allow his animals at all in the street? And since a person's allowed to walk in the street, and it's very, very common for this to happen, therefore the תורה said that if the animal damages through שן or through רגל, you are פטור in רשות הרבים. And the רא"ש explains why the רי"ף gave this reason, because the truth is we do not need this reason. We learn it out from a פסוק. The פסוק says ושלח את בעירה ובער בשדה אחר, and as the גמרא said before that from this פסוק ושלח את בעירה ובער בשדה אחר, we learn out שן ורגל. And here the פסוק says clearly ובער בשדה אחר, that it happened in someone else's field. So the תורה tells us clearly that the דין of שן ורגל only applies if it happened in the רשות הניזק. So why does the רי"ף need a reason that why are you פטור in רשות הרבים, because it is אורחיה, it is a דרך? And the רא"ש says that this reason makes a difference, that accepting this reason will have an effect on the דין. And the דין he mentions is, for instance, if an animal was walking in the street and stepped on a long board, and the other edge of the board was in the רשות הניזק, and it caused damage in the רשות הניזק, are you חייב or are you פטור? And he says that if we would only have the פסוק, and since the פסוק says ובער בשדה אחר, that if the damage was caused in the רשות of the ניזק you are חייב, so in this case you would be חייב, too, since לפועל the damage was in the רשות of that person. But now that the רי"ף tells us that there is a reason for this דין, and the reason is because it is the דרך of the animal to walk in the street and we can't stop it, and therefore you're פטור, so in a case like this you should be פטור, because לפועל the animal was walking in the street. And when the animal stepped on the board, it was in the street where its דרך was to go, and even though it caused the damage in the רשות הניזק, but if the reason you are פטור in רשות הרבים is because it is the דרך, in this case, too, it is the דרך of the animal to walk, and therefore the דין would be that he's פטור. And the רא"ש adds that this does not fit to what תוספות said in our סוגיא. Because in our סוגיא we just said before, תוספות says that when the גמרא says שור יוכיח, that שור that will prove that even though it's with רשות, nevertheless you are חייב, תוספות said that refers to the case where it stepped on pebbles and they flew into the רשות הניזק and they were מזיק, and you are חייב there even though it went with רשות. So the רא"ש says this does not fit to what he just said before, because according to the רא"ש, if the animal was in the רשות הרבים and caused damage in the רשות הניזק, you are פטור. And תוספות says that when the גמרא says that שור יוכיח that you're חייב refers to this case, a case where the animal was in the רשות הרבים and caused the damage damage in the רשות הניזק. So the רא"ש says that what he said does not fit to what תוספות said here. But Some מפרשים ask that they don't understand, what is the contradiction? Why what the רא״ש says doesn't fit with what תוספות says? The example the רא״ש gave was the case where the animal walked and stepped on a long board, and the other edge of the board was in the רשות הניזק. The example that תוספות gave was that the animal walked and stepped on pebbles and the pebble flew and was מזיק something in the רשות הניזק. And it makes sense that the case of the pebbles the person should be חייב, while the case of the board should be פטור. And one of the differences given in some of the מפרשים is, that in the case of the board, when the animal stepped on the board, and that same board, while it stepped on the board, did damage in the רשות הניזק, so the damage came directly from his stepping in the street, because it's all one thing. It's all one long board. And therefore, since the animal walked in the street, and in the street you are פטור, because it's the דרך of the animal to walk in the street, so you are פטור, even though the damage was caused in the רשות הניזק. But the case of תוספות is a case where it stepped on pebbles, and the pebbles flew into the רשות הניזק, so when it came into the רשות of the ניזק, at that point, it wasn't connected to the stepping of the animal directly that happened in the רשות הרבים. And therefore it's a separate היזק that happened in the רשות הניזק, and in a case like that, you should be חייב. So according to this, what תוספות says could fit with what the רא״ש says. But obviously the רא״ש himself doesn't learn that way. He learns that we cannot be מחלק, we cannot make this difference between the two cases, and therefore he writes that what he just said does not fit with what תוספות says. And some מפרשים even go further. As we said before, this was the פשט of the רא״ש in the רי״ף. So according to this it comes out that the רא״ש learns פשט in the רי״ף, that according to the רי״ף, if the animal walked in the רשות הרבים and stepped on pebbles, and the pebbles flew and were מזיק in the רשות הניזק, according to the רא״ש, the way he learns the פשט in the רי״ף, it would be פטור. So this is the reason מפרשים say why later on in the גמרא in the second פרק, where the גמרא comes to a מסקנא that if this happened, you are חייב, the רי״ף doesn't bring that גמרא there, because the רי״ף, as we're saying now, holds that if this happened, the person would be פטור. So how can the רי״ף over there bring the גמרא where the גמרא says חייב? And therefore we must learn that according to the רי״ף, he feels that that גמרא is not אליבא דהילכתא, that גמרא for some reason, he has some proof that that גמרא is not according to the הלכה, and therefore he doesn't bring the גמרא there, and therefore here too, he gives the reason why you are פטור ברשות הרבים because of אורחיה, which leads eventually to come out with the דין that if the animal was walking in the רשות הרבים, but caused the damage in the רשות הניזק, still you are פטור.