The Gemara here on דף ו עמוד א brings the Mishnah in the beginning in דף ב'. The Mishnah says ארבעה אבות נזיקין, there are four kinds of nezikin: שור, בור, מבעה, והבער. שור is the ox, and we said the ox could have different, there are three kinds of nezikin within the ox: one is קרן when it gores with the horn, one is שן when it eats, and רגל is when it stampedes and steps on things. So you have שור and you have הבור, digging a hole, and מבעה which according to one פשט מבעה means רגל, means if it steps on it, but another פשט מבעה means אדם, if a person is מזיק, הבער and the fire. And then after the Mishnah goes through the list, then the Mishnah at the end says הצד השוה שבהן, there's one common denominator that they have: שדרכן להזיק, they're all, the derech of them all is to cause a היזק, ושמירתן עליך, and you are obligated to watch it, and therefore you have to pay when this happens.

Now the Gemara here on דף ו asks, הצד השוה שבהן לאתויי מאי? Why does the Mishnah tell us that there is a common denominator between them, for what purpose? They're nezikin, and they're nezikin, nezikin you have to pay. No, no, why? What what do we care to know that שור and בור and מבעה and הבער have something in common? Big deal! I mean, what it's like what you would call useless information. There's there's no purpose in knowing this. So you know, so they have the same thing. אלא מאי? The Gemara says, why does the Mishnah tell us? The Mishnah wants to say like this: because sometimes there are certain types of hezek that are obviously not the original four, but they are like toldot, they're we said before that we learned up in the beginning of the Gemara there are toldot, they are derived from these four. But sometimes you could have a type of hezek that you cannot derive it from one of the four because there's a certain way that it's not similar. In one way it's similar and therefore it seems like it could be a תולדה, but there is something on the way that it's not similar. And therefore from one we couldn't learn it out. So we have to learn it out from more than one, from two, and when we find the common denominator between the two, so then we could learn that out. What is that that the Gemara mean, that the Mishnah means? And the Gemara goes into four example, four answers, Abaye gives an answer, Rava gives an answer, of certain type of hezek that we would not know from one and we have to know it from both. And this is what the Gemara says. Well, we'll read the Gemara:

The first example, אמר אביי: לאתויי אבנו, סכינו, ומשאו שהניחן בראש גגו ונפלו ברוח מצויה והזיקו. That if a person put a stone or a package or a knife on top of the roof, and a wind, not an extraordinary, a normal wind came and blew it down and it was mazik. Now you're chayav for that hezek. Under which category would this hezek fall? So the Gemara says like this: You normally would think it falls under bor. Why? Because after it fell down, it lay on the floor. And that's the Gemara, first the Gemara says: Maybe if you're talking about that it damaged while it's falling down? The Gemara said it can't be, because then you don't have to learn it out from two, it's esh! It's mamash like fire! Just like fire, when you start fire and it goes and it damaged, same thing, you threw something back, you put something down, and it was fell down, and you should've known that it would fall because it fell ברוח מצויה, with a normal wind, that's mamash like esh! So we could learn it directly from esh! The Mishnah can't mean that, that for that you need two. But the Gemara says the case is where it you put it on the roof, fell down ברוח מצויה, and it landed. After it landed, somebody came and tripped over it and fell and got hurt. Now that, from where would you know you're chayav? And this is what the Gemara says: be'emet it's bor, but on the other hand it's not like bor: מה לבור שכן אין כח אחר מעורב בו? Bor, you're chayav when you dig a bor. But when you dig a bor, the way the hezek became, there was no other koach that was involved that caused the damage. You dig a bor and that's it. You made a bor and that's it. In this case, תימא בהני שכן כח אחר מעורב בהן! Here, when you made it into a bor, it wasn't only you. The wind was involved. If not for the wind, it wouldn't happen! So this is really not a kind of mazik like bor. It's like bor because it caused because let's figure like this, I have to give an introduction: If a person takes a stone or a knife and puts it down in the middle of the street, and someone falls and trips over it, why are you chayav? Why? That's bor. From the משל came out a mess. That answers it, maybe. Why did you answer my question? So that's straight בור. That is בור when you put it down. The Gemara does say, and I'm going to, it's נוגע to know for later, that if you put down the stone and you were מפקיר it, and you gave up your ownership, that's that's ממש בור. What's a בור? רשות הרבים! You dig a hole in the street which is not yours, and that's a תקלה. You made a תקלה, you made a stumbling block. So what's the חילוק if you made it deep in the ground or you put something on top, it's בור. Says the Gemara, what happens if you were not מפקיר it? It's your stone, you put it down, and it's still yours. Here there's a מחלוקת between Rav and Shmuel. Shmuel says it's still בור. Still בור, even though the case you were not מפקיר it, it's still בור. And Rav says no, since you were not מפקיר it, it can't be like בור, because it's not בור. בור, one of the characteristics of בור is that it's רשות הרבים, which doesn't belong to you. So he says you're חייב, but you're חייב on שור, just like an ox of yours, which belongs to you, it's your ממון, is מזיק, you are חייב. This is yours, so you're חייב on שור. Tosafot says exactly what it is, we'll see on דף ג, but this is what the Gemara says. Is there a difference in the payment? In a different, no. The payment is the same. The payment is the same. The difference is there is a certain דין by בור, that, and just to be נוגע to later, that the Torah says that if כלים broke in the בור, you're פטור. We learn out from the פסוק, שור, it says a פסוק כי יפתח את את בור ונפל שמה שור או חמור. It specifies שור או חמור. Why does the pasuk have to mention a שור fell in the? It should be anything that happened! So the גמרא דרש, שור ולא אדם, that if an אדם fell in, a person fell in the bor and got killed, you are not chayav. And חמור ולא כלים. Only חמור and not כלים. So if we learn it out from bor, then כלים would be patur, that's according to Shmuel. If you learn it out from, if it's not, if you weren't mafkir it and we learn like Rav, that we learn it out from שור, כלים would be chayav. Is there a din by bor that bor is always chayav because it's prone to fall in? Right, but the Torah made a special gezeirat hakatuv. Torah said that if a person falls in and dies, you're patur. Or if כלים fell in and break, you're patur. Torah made a special din. Anyway, getting back here, but if you put it on top of the roof and it came down, this is not exactly like bor. Bepo'al, the way the היזק came about, it was a bor. It's because of you that a bor came in the street. You put down something in the roof knowing that it could fall. You put it at the edge. You don't need a hurricane to knock it down. It could, normally, so you expect it to fall. And then it fell and became a bor. So this is basically, it looks like it's bor. But you said in the beginning it's רוח מצויה, hurricane is רוח מצויה. So you're chayav like Yeah, you could have expected, it would still be normal. Fell down, so it's bor. And the Gemara said the case is דאפקרינהו. You were mafkir it, so according to everybody this is bor. Okay, so why don't we learn it out from bor? The Gemara says no, if it's just from בור, we wouldn't know it. It can't be, why? Because בור I don't know what happened here. Turn it around, flip it. Just flip your head. Okay. Uh-huh, okay, now I see it. Yeah. I guess the question, what's the problem of putting something down in in רשות הרבים, you asked? No, that's the whole face of בור. Something that's a stumbling block, someone could fall, it's like a בור. It's the same thing, I didn't know asking if it's a she'eilah. No, I I understood what you said. So the Gemara says that this, from בור itself, even though it's like בור, we wouldn't know it. Why wouldn't we know it? Because מה לבור שכן אין כח אחר מעורב בו. בור, the only way it became a בור is through you. You dug a hole. And also if you take a stone and you put it down in the middle of the street, it's also, why is it a בור? How did it become a בור? אין כח אחר מעורב בו. There's no other כח. You put it down, you're responsible. Here, befo'al, the fact is that it became a בור through כח אחר, because the wind came and blew it down. So how could you learn out from בור? So the Gemara says, אש תוכיח. I'll prove to you from a different one. אש, how does אש cause damage? Fire. If you set a fire and there would be nothing blowing, it wouldn't burn. It would get extinguished. The reason it travels and burns because there's a כח אחר, and still you're chayav. So we see from אש that you're chayav. But then the Gemara says, but אש you can't learn out from from אש either. So the Gemara says like this, מה לאש שכן דרכו לילך ולהזיק. אש is מזיק by going. It travels. Here it's not דרכו לילך, it doesn't travel, it's a בור. It did travel. No, but it traveled to become a בור, but the way it's מזיק, it's not traveling. So we answer, בור יוכיח. Look, when you dig a regular hole, it's also not traveling and you're chayav. So between the two, now that we have בור and אש, we learn out. And that's what the Mishnah meant when it says הצד השוה שבהן. The Mishnah tells you there's a common denominator, because in order to learn out from both, you have to find that they both have a common thing. One answers one question, one answers the other question, common thing, and you're chayav. That's what the Mishnah means. That's one example.

Then the Gemara gives another example, what I'm going to bring is a, I'll give you a second example: בור המתגלגל. If someone put a בור down, put down a stone in the floor, it's בור. Nothing happened, no one got hurt. People walked, animals, dogs were walking, and while they're walking they kicked it, and it ended up a block away. And now it's laying in the street a block away and someone fell over and and got hurt. What is that? Just like wind. So, the Gemara says the same thing, it's בור, but on the other hand, the Gemara says מאי שנא בור שכן מעשיו גרמו לו? By בור your maaseh did it. But תימא בהני שאין מעשיו גרמו לו. The Gemara says שור יוכיח, and this is important to remember, שור יוכיח. שור is also what? That what? That מעשיו not גרמו לו. It came, you didn't make the שור become a מזיק, and you're chayav. But then the Gemara says from שור, מה לשור שכן דרכו לילך ולהזיק, שור goes. בור יוכיח. We see בור doesn't go, and still chayav. Between the two of them. Then there's another example, and that's I'm going to bring it, the fourth one is not so important for the shiur.

Another example: The Gemara says the Chachamim allowed a person when you open up your sewers, your gutters, the בית הפרס, so it says summertime you're not allowed to open it up into the street. Why? It's going to get dirty. It's it's. Wintertime, when it's muddy, anything, you're allowed, but remember, if someone gets hurt you're chayav anytime. Yeah, summertime everybody summertime you weren't allowed to do it, but winter you're allowed to do it, but you're chayav. Be careful, you'll be chayav if someone slips. So, the Gemara says, on which from where do you learn out the chiyuv? So, the Gemara goes, \"From בור.\" But the Gemara says here, בור, you can't learn out from בור, why? I'll read you the words. מה לבור שכן שלא ברשות. A בור you're chayav because you dug the בור, you had no permission to do it. Here, the Chachamim gave you permission to do it. So, you can learn out, the Gemara says, \"שור יוכיח.\" It's a שור. Then the Gemara says, \"שור? מה לשור שכן דרכו לילך ולהזיק, שור goes. But this doesn't travel. It came out, you put it in the street, now it's in the street like a בור. So, why should be חייב? בור יוכיח. Look at בור, בור doesn't travel and you're חייב.\" So, שור and בור like the הצד השוה and the other, all this, you're you're hitting the the head on the nail on the head. This is the Gemara. דכריכנא דכריכנא. How often? So, it comes out to here, we'll put this down for a minute, so it comes out from out from here that all these things we learn out from what? שור and בור. The first one we learned out from בור and אש, the other two we said the third one also we learn out from בור and שור, it's a תולדה of בור and שור. What's the What's the הצד השוה? שדרכו להזיק.

Comes the Rosh, and the Rosh zagt azoy: Find where it starts. ויש מן הגדולים, it doesn't give a name, there are some גדולים, obviously the Rosh writes there on the ראשונים, שכתבו, they write like this, דלא מיחייב אלא במה שחייב בשניהם, that when you learn out a certain היזק from two, you're only חייב what both of them are חייב. If there is a certain דין that one is פטור and the other one is פטור, another דין, you'll be פטור on the one that you're learning out, you're פטור on both. ופטירי, therefore, like this: whenever we learn out from שור of בור and אש, like to the first one, בור, we said, has a certain קולא that if כלים fall in, you're פטור. By אש, there's another דין, the תורה tells us different דינים, טמון is פטור. טמון. If טמון, if something is hidden and got burned, let's say a person burned someone's field down, and in the field was hidden a person's with with money, and the money got burned, you're פטור. Again, we learn out from פסוקים. So, this thing that we learn out when you put up the thing on top of the roof and it falls down and we said you're חייב because it's בור and אש, in this case you'll be פטור for כלים, because it's a תולדה of בור. You'll be פטור for טמון because it's a תולדה of אש, he says. What about the other case where we said we learn out from בור and שור? Now, בור is פטור כלים, you'll be פטור כלים. Let's read inside. So you'll be חייב on פטירי מהיזק כלים וממיתת אדם, a person also because, כבבור, טמון, כבאש, כיון דהתם במעשיו, דאינן אלא כאלו שבשניהם. You'll be כל. Then he says, ויש משתפכין בדבר, others are not so sure about it. ולי נראה, the Rosh says, \"I hold, דכל דין בור יש להם.\" Not true, it's only בור. Because even though we learned it out from both, it remains a תולדה of בור מיט אלע קולות, with all the חומרות even. The קולות of בור obviously, but we want to say even if there is a certain חומרא of בור, but since שור has the קולא, this is פטור, so no, it's בור. תדעה, he has a ראיה, this is נוגע. דהני אינך שלשה שקמתי, is the other three, besides the first, דילפינן מבור ושור, the other one like we said, the בור המתגלגל they called, the one that you kicked, or the the the sewer that you opened, we learn out from בור and שור. What is שור? שור, is it a מחלוקת, no not What What does the word שור mean? We said there's two שיטות. שמואל says שור means שן, and and מבעה means שור means רגל. רגל, ומבעה means שן. רב holds שור means קרן, שן, and רגל, and מבעה means אדם. Now if you learn like שמואל that שור means שור means רגל, and if we learn it out from בור and שור, according to the יש מן הגדולים, according to those, you should be פטור whenever בור is פטור, and whenever רגל is פטור, because we learn it out from בור and רגל, cause שור is רגל. There's a special דין by שור, by רגל I mean, that ברשות הרבים you are פטור. When are you חייב for רגל by standard? Only if it goes into the רשות הניזק, into the רשות of that person, and then it broke something by its stepping. Same thing with שן, if it ate something in the street, something that belongs to you ate in the street, you're פטור. We learn that cause the pasuk says וביער, by שן and רגל, וביער בשדה אחר, only there. So he says, so according to this their שיטה, that if it's learned out from two it had the דין of both, so if it's learned out whatever is learned out from בור and שור should have the קולות of בור and שור. And שור means רגל according to Shmuel, so it should be פטור כלים and פטור ברשות הרבים. And that's not true. דהא מתניתין דרבי עקיבא, and this תוספתא goes on that that משנה, דהיכא דמשוי ליה שמואל ברגל חייב ברשות הרבים, how could you be חייב ברשות הרבים? הלכך נראה, he says, דעיקר תלמודא הוא מבור לחודיה. It's not true, all these things are בור alone, דבור גמור הוא, it's a real בור. אבנו, סכינו, ומשאו, it's all בור, and so it's חייב ברשות הרבים. All right, חייב, what's that? וכן בור המתגלגל, and the same the third one, they're all basically the same, they're all בור. וקיימא לן כוותיה דבור גמור הוא. All right, the Gemara says we learn it out, you hear it also: אלא דלא מצינו למילף מבור לחודיה, but there is a problem. In fact it's בור, but since there is a problem we can't learn it out from בור, משום דלא דמי לגמרי לבור, because it's not completely like בור, whether it's תחילת עשייתו לנזק, or כל אחד חמור, or all the different questions we said, or נגמר למעשה, or it's רשות, what משל the third case about the שוורים? We learn it from בור, why can't we learn from בור? The Gemara says, it's not enough, because that's בור is without רשות, this is with רשות, so it's a kushya we had. הוצרך להביא יוכיח, so we're answering the kushya by bringing a ראיה משינוי נזיקין to show שאין לחלק ביניהם ומבור, we shouldn't be מחלק, but בפועל it is בור. That's how the Rosh learns, not like the יש מן הגדולים.

Then the Rosh continues and he says Tosafos don't hold like me. A re'aya, so you have to listen, now the other part מנהגיה. Tosafos. Yeah, Tosafos, and Tosafos is on דף ו׳. You want it on דף ו׳? Yeah, now Tosafos is on דף ו׳, yeah. That's on דף ו׳. Okay. What program is that? That's on דף ו׳. You mean דף ג׳? No no, that's all one suit, on דף ו׳. דף ו׳ עמוד א׳. עמוד א׳, Tosafos is on דף ו׳ עמוד א׳. You can buy today's, Amazon sold a reader, they can. It's on the phone, but you download, you can get all the mefarshim. Tosafos man, thank you. That's what they say. They say that the Gemara says תלמיד חכם עיקר שבת, what is that? עיקר שבת is talmid chacham. Why is it called Shabbos? Cause Shabbos is the only time you need to be a talmid chacham, cause Shabbos you can't use a computer. Now you've got to make it bigger, so the way you make it bigger is like that. Oh yeah, how that turned out? That's the actual דף now. Okay. Which program? An application. Okay, they are fine. Okay. Okay, when we learned out the case of the אפקיה לבי כובי, and we call it the, the שור case, and the Gemara said that it's בור, but you can't learn it out from בור because this is done ברשות and that's not, what did we answer? שור יוכיח, שור is ברשות. Ask Tosafot, שור is ברשות? According to Shmuel that שור is רגל, and you're only חייב ברשות הניזק, you have no רשות to go. What what did the Gemara answer, that שור we see is is ברשות? It's not ברשות! שור, according to Rav, שור could mean קרן, קרן is תם ברשות הרבים, but according to Shmuel that שור is רגל, רגל is not חייב ברשות הרבים! It's only חייב if you walked into someone else's רשות, which you had no right to, so how does the Gemara answer? So Tosafot says there is a case. The case is if the שור was walking ברשות הרבים, there was a, he stepped on a stone which shot into the רשות היחיד, so you're חייב because it, the damage is in רשות היחיד, רשות הניזק, but the פטור he walked ברשות. But the Rosh says, if Tosafot is already talking about this, Tosafot should have asked a better קשיא. Tosafot should have asked, you're telling me that we're learning out this the שור thing, you're learning out from בור and שור, and שור according to Shmuel is רגל, and רגל is פטור ברשות הרבים, so that also should be פטור ברשות הרבים? Why didn't Tosafot ask that קשיא? That שור should be patur that that the שור thing should be פטור ברשות הרבים. So the ראיה, Tosafos doesn't hold holds like me, that even though we learned it out from בור and שור, really it remains בור, and it's not שור, and therefore שור is, like, רגל and פטור ברשות הרבים, but this is not a תולדה of שור, and it's built on this קשיא. This is what the Rosh says. The problem is the Maharsha asks a קשיא, and doesn't answer. The Maharsha says that this, according to the Rosh that Tosafos holds like him, is a סתירה to a Tosafos in דף ג׳. Tosafos in דף ג׳... Where'd you do on דף...? You have to do it over there... I guess it's all there... Wait, the transfer, you just have to tap it against this. Are you on דף ג׳ now? Yeah, on דף ג׳. Okay, so דף ג׳ עמוד ב׳. Okay. The Gemara... There's so many details here that before we even get to the inyan, it's so, whatever. The Gemara over there says in דף ג׳, I mentioned that earlier, that when you put down an אבן or a סכין in the street, not that it fell down, in the street, so if you were מפקיר it, it's ממש בור, it's mamash like a בור. If you're not מפקיר it, according to Shmuel, it's still בור. But according to Rav, it's שור, because a בור is not yours, בור is in רשות הרבים, not yours, this is yours, so it's not בור. Comes Tosafos there and asks the she'eilah: according to Rav, how could you learn it out from שור? Why not? שור is a בעל חי, a שור is alive, and alive means... This is דף ג׳ עמוד ב׳? Okay, och och, this Tosafos, it's unbelievable. Yeah, is it big enough? Huh? Huh. This is really twice. One day in Beit Midrash now, decency to... Well, we just put in, we're putting in mamash tomorrow, a computer, Otzar HaChochma. I have a laptop. Otzar HaChochma has 40,000, it's a it's a it's a 40,000 titles, not ספרים, and 60,000 or 70,000... No no, that's not... 20,000, that's free. Now, this is cost over 2, $2,000 just just the hard drive. Yeah, okay, let's... Okay, we're getting off... So, Tosafos asks a kashya: according to Rav, how could you learn out from שור? ואי תימא היכי גמרינן משור, מה לשור שכן בעלי חיים וכולי ומזיק. A שור is a בעל חי, and it doesn't mean who cares if it's alive, a בעל חי means... that it's a... Yeah, it could go it could go to מזיק, but if you put it down, it's not like a שור. Yeah, but the wind could come, then it becomes like a שור. Not like a שור, why? כח אחר מעורב בו, that's another כח, but here the שור itself would go. So Tosafos says, I'll tell you a chiddush, that even though Rav said that we learned this out from שור, Rav meant שור and בור. That we learned it out from שור, and then when we have the kashya: מה לשור? How could you learn out for שור when שור is is is בעל חי? בור יוכיח. So we learn from שור and בור. That's what Tosafos says. Fine, good. Comes Tosafos and asks a kashya at the end: אבל קשיא, Tosafos has no teirutz. And here the... No kashya, because... No no no, there is no kashya, Tosafos... No, the Rosh wanted to use Tosafos as a raya that it's only בור, not שור. No, but we also have to answer... till there also the Gemara learned out from two, but when we learn out from two, it has the din only of the first. Okay. So here Tosafos learned out from two. When the Shmuel, when Rav says we learned out from שור, fine, he says it's שור and בור. Then Tosafos comes with the kashya, and has no teirutz. Obviously Tosafos holds the kashya is such a strong kashya: אבל קשיא, כיון דמבר נמי יליף ליה, since we say that according to Rav we learn it out from not only שור, of בור, ליפטרו בכלים. So according to Rav, let כלים be פטור, because because it's learned out from בור also, and Rav says בפירוש in the Gemara in פרק המניח that if you put an אבן or a stone or something down in the street and it's a מזיק, it's שור, and you're פטור and you're חייב כלים, not like שור! So we see from Tosafos, Tosafos learns here clearly, it seems like the יש מן הגדולים, not like the Rosh. Tosafos says that since we learned it out from both, it should have the din of both. Lechumra, you should have, you could have answered, and there are some that answer that. Some that answer here that in the Shita Mekubetzet brings Rabbeinu Meshulam, איברא, whatever, other... Ha? That brings a teretz on this Tosafos's kashya, how come when you put it down according to Rav, when you learn it out from שור and בור, כלים are not patur? So they answer, because it's really not both. It's only one. We learn it, and the main one is we learn it out from שור, so even though we need בור is not the not the תולדה of בער, and that's why you don't have the din of בער. Tosafos doesn't answer that. I see in the Tosafos words that because you learn it out from both, it has to have the din of both. It's a setirah to the Tosafos over there. Tosafos over there on דף ו׳, which you said, says that since we learn it out from, even though we learn it out from שור and בער, בער is the first, it remains בער. שור is just to answer a problem. And here Tosafos says we learn it out from שור, so not only שור, it's בער also, that כלים should be patur. How do you answer that? The kashya became noch shtarker it is. The Rosh is the one that brought the re'ayah that this is from Tosafos, that Tosafos holds like me. On that daf, דף ג׳, the the Shita brings you don't have the Shita here? Maybe, I don't know, yeah maybe. The Shita Mekubetzet brings a Tosafos HaRosh, that the Tosafos HaRosh, which is written also by the Rosh, a different sefer of the Rosh, on the same Gemara, and the Tosafos HaRosh looking for a teirutz on Tosafos's kushya on דף ג׳. Tosafos HaRosh says that I have a teirutz on Tosafos's kushya. Tosafos asks on דף ג׳, according to Rav that you learn out from שור and בער, how come כלים are not patur like בער? So he finds a sevara, teirutz. Why is he interested in answering a teirutz? According to the Rosh, is there a problem? It's learned out from שור and בער, but it really remains שור, so what's the kushya? So a siman that that the Rosh is bothered by this kushya. He's looking for a teirutz. Why is he bothered by the kushya? Lichora is a re'aya that he holds that if it's שור and בער, it has a din of both, which is a setira to what he himself holds here by us on דף ו׳, that it's not like that. On דף ו׳ we say that if we learned out from בער and שור or בער and אש, it really remains בער. So what's the peshat? So, first let's understand, this is what's the machloket between Rav and Shmuel? Why does between Rav and Shmuel, Rav say that if you were not מפקיר it, it's still בער? And Shmuel and and Shmuel says and Rav says if you were not מפקיר it, it's שור, and Tosafos adds what he means, שור and בער, but really the Gemara says it's שור. What's it based on? So the one of the ways to explain it, if there are other ways the מפרשים explain, they explain based on the famous chakirah that we learned many times here in Bava Kamma, which many Acharonim talk about, but nobody talks about it like the Rebbe does, and the way the Rebbe explains it. And that is the שאלה when you're, something that belongs to you, your ממון is מזיק, and ממילא you are חייב. If your שור is מזיק, you're חייב. Why are you חייב? You didn't do it. Why are you חייב? So one answer is, one way is על שלא שמר שורו. Must watch it. You should have watched it! It's your ממון, you should have watched it. You didn't watch it, hey, you pay. The other pshat is not because of that, because ממונו הזיק. Since it belongs to you, you are responsible for whatever it does. Now, that gufa you can learn two ways. Other Acharonim the way they learn the second, they bring the chakirah, but the way they learn the second chakirah is the second side of the chakirah, this is what they say: that because it's yours, you are responsible. על דרך זה, we'll give an example. In halachah it's not true, but just a שכלדיקע example. If your child will break a window of your neighbor, the neighbor will come to you and say, \"Pay me for the window.\" You'll answer him, \"Why should I pay for? I didn't do it. Why why should I pay for it?\" Child is not like ממון. No, I'm saying an example. Child, that is more than ממון. So we tell you like this: since it's your child that did it, you're responsible for everything your child did. Same thing is, because it's your ממון, a שור is your ממון, you're responsible. The actually halachah is not, the halachah by a child is not like that, a child is that if your child breaks, you're like a patur. But I'm saying if you lehavdil go to court, the court the judge will make you pay, because it's your child, you're responsible. So they say that's the same thing here. By shor, shor, why are you not because you didn't watch it, because whatever he does, you are responsible for that money to pay. The Rebbe says a different vort in the second half of the chakirah. He says the pshat is since it's your mamon, it's an extension of you. And whatever it does is keilu you did it. Not because you're responsible for that, it's keilu you did it. Like your yad? Like your yad, he says there. He says befeirush that word. He says the לשון יד. He says like חצירו מיקרי ידו. When we say when something comes into your yard, in your in your reshut, you are koneh it. How could he be koneh it? So the Gemara says one of the pshatim is because your house, your yard is like your hand. So he says the same thing here: your animal is like your hand, so it's as if you did it. That's why you're chayav. They say not because it's like your hand, they say a different vort, they say because whatever your animal does you're responsible, you have to take care of it. He says because keilu you did it. Fine. So we have these two sides. That's a very, a heavy a shtarke zach to say that. Yeah, yeah, yeah. What, like your hand? Mamash like you did it? You did it, you say you did it? Yeah. Bgashmiyut it's not. That's why when it's noge'a the gashmiyut of it, it's not. But when it's noge'a the payment, the halacha, yes, it's keilu yad. It's a it's a very No, but the sevara the people, most acharonim don't do it. In one of the gemarot they have, and the Gemara Metivta, you know they have in the back all the mefarshim, so they bring this whole chakirah, and in the חקירה גופא, they bring the second way, two ways, and they say the second way, and who's the מראה מקום to the second pshat that it's keilu you did it? Mashma'ut of Dibrot Moshe. Mashma'ut, ר' Moshe in one of his sefarim is mashma'ut. If they would only see this the the letter from the Rebbe, the letter the Rebbe writes: This is the pshat! This is the way it was the second side of the חקירה. But ממונו means anything that belongs to you? Yeah. Anything. Even if it's your בהמה? We're talking about your בהמה. Say, but it has his own שכל. Yeah, too bad. Yeah, but it's your בהמה. Your בהמה. שייך your child, child had a מעשה, not all all the things we learned till now about שומרים, if you have to watch it, or you don't have to watch it. No, you have to watch it. But why are you chayav? Peshita, if you watched it and then it's mazik, you're patur, because it's an ones. But when you say you're chayav to pay, what's the yesod of the of the chiyuv? Is it because you you neglected watching it, or that's not the reason? The reason is because it's yours and you're chayav. אלא מאי, had you not neglected, you would have been patur. It would have taken away the chiyuv, but the chiyuv is because ממונו הזיק. Right, but what's Rebbe goes into the difference there. You want to know? It's going to take too long. Well, they're not going to end them. No, the difference l'maaseh. He says like this: what happens if שור is yours and you sell it to somebody with a condition that if it's mazik, it should become yours the second before the היזק? Who said that, the seller? The seller or the buyer, together they make up! Nu, and then it's mazik, who's chayav? I don't understand. Listen, it's mine, and I'm selling it to you, and when should the מכירה be חל? A second if it's going to be mazik, a second before the היזק. I mean היזק didn't even happen. No, after it, after it. Then it becomes old. Yeah, if okay, it's old then. Yeah. I can make any condition I want. He's predicting a היזק? No, not predicting. If. And if it doesn't, then it's mine. Now, if the reason is because you didn't watch it, who's chayav? The guy who took it. No, the first guy. The second guy didn't have to watch it! The first guy had to watch it. If it is because the היזק happened to something that belongs to you, it belongs to the second guy! See? You don't have Does that ever bring a nafka mina lahalacha? Unlikely. S'iz nisht noge'a! No, no, no, you don't understand. No! ס'איז נישט נוגע אויב it's a common thing or not. The fact that there could be even a far-fetched difference is a raaya that there are two different ביאורים. If you couldn't find any difference, then we don't even talk about it. Then there's no חקירה. This is it's a נארישקייט, נאר. Like this, I always use this example. In yeshiva, they have a chakirah: are is the wall under the ceiling, or the ceiling on top of the wall? Which one is it? Depends what floor you're on. No, it depends how you build the building. No, that's not noge'a how you build. What is bafoal? Nafka mina, shtut? Can can can you think of a nafka mina? ס'איז שפיצן. But if there's a nafka mina, even if it's not noge'a how often a nafka mina will happen, but the fact is And when you build it, it's for the support of the building. No, that's not noge'a. After it's already built, now, how do we look at it? This is on top, or this So they they they in the yeshiva, they they think, \"Oh, this is a chakirah.\" So they ask, \"What's the nafka mina?\" What a nafka mina: המקדש אשה על מנת that the ceiling is under the wall is on top of the walls. If that's true, she's mekudeshet. If it's not true, she's not mekudeshet. You always look for some far-fetched example that might happen But it's not because we're talking. But no, but this is just to show that there is a difference in approach, is if you could find some difference. And that's not noge'a lema'aseh. Lema'aseh, this is never going to happen. Nobody is going to sell it like that. You understand? But it just shows. Anyway, getting back to the point.

Now you could say that the machloket of Rav and Shmuel is based on this chakirah. And it goes like this: this sevara of that it's because it's yours you have to watch it, or because it's yours it's as if you did it, applies to shor. Because you have to you're chayav No, you're chayav because it's as if you did it, does not apply to bor. Bor doesn't have such a thing, because bor is not yours. A regular, it's not yours, not mamono. Mimela, you can't say you're chayav to watch it. התורה עשאתו כאילו ברשותו, why not? What? What? No, no, no, that's The problem with bor is that you made a takalah. You made a stumbling, you made a problem, so you're chayav! But not because there's a chiyuv to watch it. It's not you only a chiyuv to watch your thing, you don't have to watch something else. You don't have to watch the street. But you made a takalah, so you're chayav. But the text התורה עשאתו כאילו ברשותו, right? Oh, one second. Okay. That's one second. And the second way of how can that whatever it does is as if you did it. What do you mean? It's not yours. If it's yours, it can be. We do The Gemara does say that bor birshut harabim, even though it's not yours, התורה עשאתו כאילו ברשותו. So, the peshat the way we learn usually is the Torah doesn't say it's yours. The Torah says you're chayav even though it's not yours. Just like something that's yours, you're chayav, the Torah says this has the same din. There's another way to learn, which is a different peshat, and taka in the yeshiva in a different shiur, I said the other way. I told them when I said the shiur, I said, \"Now we're going in a different direction.\" So, lefo'al by בור doesn't fall under the category of ממונו הזיק, whichever way, whether it's לשומרו or not. The same thing if you put something down and you were mafkir it, it's the exact same thing. You can't be chayav for what, not watching it? It's not yours to watch it. You're chayav because you made a takalah, you made a stumbling block. You can't be chayav because whatever it does as if you did it, is that, it's not yours, you can't say. Iz vayter gut, so that's ווייטער בור. If you put something down and you were not mafkir it, so if you hold, so it's your, if ממונו, if you hold the reason is because whatever your ממון does is ke'ilu you did it, it doesn't apply here either, because it didn't do anything. It's only shayach when your שור is mazik. שן, רגל. This didn't do any hezek. Someone fell in, something fell in, so you can't say what? That as if you were laying there? That's, no, we don't say that. So this whole idea that it's as if you, when that does it as if you did it, is only shayach when it does something. It does it after the guy falls in. It doesn't do anything, it's just there. It's again you made a takalah, you made a takalah, that's what your problem is. So it's again not the same thing as שור, as the other נזיקין. It still falls in the category of בור. If you learn the reason is because you didn't watch it, and in this case it applies. Since it's your ממון, and your ממון which is a mazik, you have to stand and watch it. Yes, there's a chiyuv to watch, your ממון, you have to watch. Vi hot der rebbe gezogt? No, Rebbe said both sides. Both sides? Yeah, he says chakirot both sides. So I'm saying Shmuel said that if you were not mafkir it, we're saying it's still בור, because he holds the reason is because ממונו הזיק, וממילא this doesn't apply to this case where you put it down even you were not mafkir it, even if it's yours. But you can't say that sevara that because it's your ממון, whatever it does as if you did it, because it didn't do anything. רב who says no in this case is שור, so רב says no, because it's yours you have a חיוב to watch it, so the same sevara that you have by other נזיקין will apply here. So normally בור is a different type of מזיק. It doesn't fall in the same category. This is a type of היזק which is like, like שור. Not like, that's machloket. Comes Tosafos, Tosafos בדף ג' says that even according to רב, how could you say it's שור, when it's, שור is a בעל חי? So when he comes to say it, Tosafos asks the kashya, so you're telling me that בעצם it has the תכונה, it's like שור, when there is a major difference between שור and this, and בור and and the mass, the thing that you put down that it's ממונו, even though it's ממונו, and therefore we could apply the sevara that it's yours, וממילא you have to watch as שור, but sof kol sof it's not שור, there's another part to it's not שור. And what is that? That's not as a בעל חי. So Tosafos, you're right. Because there is a major problem of this being a תולדה of שור, we have to add בור. So it comes out according to this, that when the kashya that Tosafos asks, which forces Tosafos to say that this is a תולדה of בור also, is a major kashya in the whole מהות of the מזיק. What type of מזיק it is. And in order to answer what kind of this מזיק that you could be חייב for, because the מהות is missing what שור has, you have to add בור. So it comes out basically, that sof kol sof, how do you know that this putting down something that you were not מפקיר is chayav? By the combination of שור and בור. So whenever in order to come to the מהות of the מזיק you need both, and have a din like both, it's a תולדה of both. So Tosafos comes immediately mit a kashya, and Tosafos says, now that I said that it's a תולדה of בור also, why doesn't it have the din of בור that you're פטור כלים? After all, it's a תולדה of בור! Ay, Tosafos learns we said like the Rosh says that when you learn out from two, the first one is the תולדה, the second one not, you know when דאס איז געענטפערט? That's only געענטפערט in a case where the kashya that we ask is not a kashya in the מהות of the מזיק. Take l'mashal a case like before, when you open up the sewer, it's בור came out, now it's there, you brought it here. What was the kashya? The kashya was it can't be like בור because it's שלא ברשות, and this is ברשות. Is that a kashya in the מהות of the מזיק? It's a זייטיגע קשיא! And in order to answer the זייטיגע קשיא, we answer it by saying, you know what? שור יוכיח. But it's not that we need שור to tell you that this is the מהות of the מזיק. דארט שור איז ברשות, וזה שלא ברשות... So we don't care now! No, but you need shor to teach you... No, no. Shor is before we have shor, way before we learn. We learn it from bor. We have a, Gemara says why is it not enough to learn from bor? Because bor is without reshus, this is with reshus. So the Gemara answers, okay, I'll find you another one which is also with reshus, and that's shor, and it's chayav. Now, why did we bring in shor here? Is it because we had a problem that it can't be learned out from bor because it has missing something in the The תכונות, in the characteristic, the quality of bor? No, I had like a kashya: this has reshus, this is not. So all we did when we brought in שור יוכיח is to farentfer di kashya. But it doesn't mean that now it turned into a toldah of bor and shor. So here Tosafos agrees. Not like the יש מן הדעות they hold that whether whichever kashya is, as long as you have to learn it out from both, it has the din of both. The Rosh says, I don't hold, and Tosafos doesn't hold that you learn it out, even though you learn it out from both, it's only the halacha, it's a toldah of the first. במה דברים אמורים, this is only if the kashya and that we needed to bring the second one was a zaytige zach. But if the kashya we have on the first is a major kashya in the עצם מהות of the mazik, so then when we answer the second one, it is a toldah of the second one, too. So that's why say Tosafos תוספות and say the Rosh are bothered by the kashya on דף ג, that the case when you put it down and you were not you were not מפקיר it. So what do we say over there? It's learned out from shor, but then we ask the kashya is בעלי חיים. So we answer bor. פרעגט Tosafos, if we answer bor, then it's a תולדה of bor, so it should be פטור פטור כלים. There, yeah, because there it's taka a תולדה of bor, because there the kashya was a major kashya, so memeila we had to learn out from bor and it became a תולדה of bor, too. מה שאין כן over here, here the kashya is a small kashya, and therefore here it doesn't change from being bor. על פי זה, we understand that those that answer Tosafos's kashya on דף ג, and they say, you know what, there's no kashya of Tosafos why you're not פטור כלים because it's really שור, they hold that the kashya is not a strong kashya. They argue with Tosafos that Tosafos says that the kashya - Tosafos learns, why do we need bor? Because there's a kashya that this is בעלי חיים and this is not. So Tosafos learns this is a major-דיקע קשיא. It's a kashya that is נוגע to the מהות of the מזיק, and we answer בור יוכיח, so it turns it to a תולדה of bor. And the Rav Moshe me-Ibr(e) learns, no, it's taka a קשיא, but I look at it as a זייטיגע קשיא. And if it's a זייטיגע קשיא, even though we have to answer according to רב, בור יוכיח, it doesn't become a תולדה of בור, it remains a תולדה of שור. So now we have answered the סתירה. This, just another moment, this could say there another pshat. Tosafos said that according to Rav, what Rav says we learn it out from שור, it's also בור, because Tosafos had a קשיא, how can you have from שור, שור is בעלי חיים, this is not? If you look in Rashi, Rashi says when Rav says משור, היינו שור, so Rav adds the word, Rashi has the words, ולא תולדה דבור. He says befeirush what Rav says, שור, it's not a תולדה of בור. So usually we learn that Rashi argues with Tosafos. Tosafos says that in order to, by Rav when he learns it out from שור, he also must learn it out from בור, and Rashi says, no, he doesn't learn it out from בור. איי, Tosafos has a קשיא, so דארף מען זוכן Rashi has other teirutzim maybe on Tosafos's קשיא, but Rashi learns that according to Rav, we have nothing to do with בור. But the way we said now, it's לאו דווקא. Could be Rashi learns like Tosafos. We have a קשיא takeh on שור. What's the kashya? Baalei chaim. And we answer, even according to רב, according to רש״י, בור יוכיח. Ai, how come רש״י ולא תולדה דבור? Rashi holds like Rabbi Moshe me-Ivra. He holds that you're takeh right, you need both, but bafoal this is a kashya that's not such a major kashya, u-memela, even though we answer בור יוכיח, it remains a toldah only of שור. That's what Rashi adds. He doesn't say ולא ילפינן מבור, ולא תולדה דבור נינהו. It doesn't become a toldah of בור according to רב, even though רב learns it out from שור and בור. So we can learn pshat in Rashi that Rashi agrees. Tosafos HaRosh went like Tosafos. No, the same thing, no. Tosafos and Rosh had the same kashya as Tosafos. Tosafos didn't find a terutz, he found a terutz. But bafoal, the kashya bothered him. Why? Because he holds it's a toldah of בור, because he holds it's a major kashya. Rashi learns not, it's not a major kashya. When he said it here, that's when it's not a major kashya. Like if somebody said הרי את מקודשת דאס פרעגט וואס טוט זיך פסק'נט אז זי איז מקודשת and I know what he answers. Remember the discussion yesterday about the brought down yesterday? Could be get a man. Oh, accurate, not regarding