1) THE DAMAGE DONE BY AN ITEM THAT FALLS
QUESTION: The Gemara discusses the case which the Tzad ha'Shaveh of the Mishnah (2a) includes. The Gemara first suggests that the Tzad ha'Shaveh teaches that if a person places a stone, knife, or package ("Avno, Sakino, u'Masa'o") on his roof and it falls due to a Ru'ach Metzuyah (the type of wind that is common), he is liable to pay for the damage that it causes. The Gemara asks that such a case does not need to be derived from a Tzad ha'Shaveh since it is obvious that the owner is liable: if the item damaged while in flight, it is in the category of Esh; if it damaged after it landed, it is in the category of Bor!
RASHI explains that the Gemara means that after the item landed, "it damaged a Shor or Chamor."
Why does Rashi find it necessary to explain what was damaged by the item which fell from the roof? If his intention is to exclude damage done to Kelim since the owner of a Bor is exempt from damage done to Kelim, Rashi's words seem extraneous. The exemption of Kelim is the subject of a dispute between Rebbi Yehudah and the Chachamim, and there is no reason to make the Gemara here contingent on that dispute. It must be that Rashi's intent is to exclude a person who was damaged by the item after it landed. Why, though, should Rashi exclude a person? Although the owner of a Bor is exempt from payment if his Bor caused the death of a person, the owner of the Bor is liable for damages done to a person, as the Gemara says (28b). Why, according to Rashi, should the Gemara here not be referring to a person who tripped on the item and incurred damages?
In fact, earlier (3a) -- when the Gemara first mentions the case of "Avno Sakino u'Masa'o" -- Rashi (DH Avno) explains that people tripped over the item and were damaged! Rashi (19b, DH Aval Kashro) gives a similar explanation when the Gemara says that a person is liable for damages caused by his rope that he ties to a chicken which is in Reshus ha'Rabim; Rashi's example is that if a person trips on the rope, the owner of the rope will be liable. Rashi does not mention damage done to animals.
Why, in the Sugya here, does Rashi specifically mention Shor and Chamor (to exclude damage done to a person), while in the other Sugyos Rashi mentions that a person was damaged by the item resting in Reshus ha'Rabim?
ANSWER: The reason why Rashi normally uses the example of a person who tripped on the item in Reshus ha'Rabim, rather than the example of an animal, might be that such a form of damage is the more basic case which would obligate the owner of the Bor, since the Gemara later (54b) concludes that one is not obligated for damages done to a Shor and Chamor in a Bor unless the Shor is a Shor Cheresh, Katan, Shoteh, or Suma (a deaf, young, mad, or blind ox). In contrast, when a person trips on a Bor, the owner of the Bor is liable for the damages even if the person is of sound mind and has all of his faculties, as Tosfos says later (27b, DH l'Fi).
The Gemara here, however, is discussing Halachos that can be derived through the Tzad ha'Shaveh from the Avos Nezikin mentioned in the Mishnah. Rashi earlier (4b, DH Tana Adam; see Insights there) explains that the Bor mentioned in the Mishnah is a Bor that can kill (a Bor that is ten Tefachim deep), and not just one that only causes damage (a Bor that is nine Tefachim deep). Hence, the Halachah derived from a Tzad ha'Shaveh must involve an "Avno, Sakino, u'Masa'o" that can kill a person. One who digs a Bor that kills a person is exempt. Why, though, does Rashi not explain that the "Avno" or "Sakino" can kill a person but it only damaged him, while if a person is damaged even in a Bor ten Tefachim deep the owner of the Bor is liable since the person was not killed?
The answer is that Rashi is consistent with his opinion expressed earlier (4b, as described in detail in the Insights there), that when the Bor is able to kill a person, the owner of the Bor is exempt not only from human death caused by the Bor but also from damages caused to a person by the Bor, because people normally avoid obstacles that are able to cause their death. (M. KORNFELD)
2) DAMAGE DONE TO PROPERTY OF HEKDESH
QUESTIONS: A Beraisa quotes Rebbi Akiva who says that the verse of "Meitav Sadehu" (Shemos 22:4) teaches that payment for damage is collected from "Idis" (highest quality property), and "Kal va'Chomer for Hekdesh."
The Gemara asks what Rebbi Akiva means by "Kal va'Chomer for Hekdesh." He cannot mean that one must pay from Meitav if his ox gores an ox of Hekdesh because of a Kal va'Chomer, because the verse says that one is liable only when his ox gores "Shor Re'ehu" ("his friend's ox") and not when it gores an ox belonging to Hekdesh.
RASHI seems to be bothered by why the Gemara rejects this possibility. "Shor Re'ehu" is mentioned in the verse which describes the obligations of Keren. Perhaps even if one is exempt from damages that Keren does to Hekdesh, one is Chayav for damages done by Shen and Regel to Hekdesh. Consequently, Rebbi Akiva might be discussing damages caused by Shen and Regel to Hekdesh (which are the damages about which the verse says "Meitav Sadehu Yeshalem"). (Tosfos, DH Shor Re'ehu, is also bothered by this question.)
Rashi offers two approaches to answer this question. In his first approach, he writes that not only is one exempt from paying for damage done by Keren to Hekdesh, but one is exempt from all types of damage done to Hekdesh. (Tosfos, DH Shor Re'ehu, offers a similar answer and explains what the source is to exempt the other types of damages, other than Keren, when done to Hekdesh.)
In his second approach ("Lishna Acharina"), Rashi says that the Gemara does not want to explain that Rebbi Akiva refers to damages of Shen or Regel done to a field of Hekdesh, because it would not be possible to find a situation in which damage is done to a field of Hekdesh: if a person sanctified a field as Chermei Kohanim, the field is not Hekdesh but rather it belongs to the Kohanim (and it is like property owned by an ordinary person), and there is no reason to make a Kal va'Chomer to teach that one is liable for damages to such a field. If the field was sanctified for Bedek ha'Bayis, it would not remain in the hands of Hekdesh; Hekdesh would immediately have the original owner (the Makdish) or someone else redeem it. Rashi adds that if the field was damaged before it was redeemed, "Ein Me'ilah b'Karka'os," and thus one is exempt from damages done to anything attached to the ground, such as fruit growing from the field.
Rashi's concluding words, regarding "Ein Me'ilah b'Karka'os," are very difficult to understand.
(a) How is the rule of "Ein Me'ilah b'Karka'os" related to the monetary obligation for damages done to Hekdesh? "Me'ilah" refers to a case in which a person accidentally derives personal benefit from an item of Hekdesh by using it. The verse obligates a person who committed Me'ilah to reimburse Hekdesh for the benefit he derived from it, to add an extra fifth as a penalty, and to bring a Korban Asham Me'ilos. Although it is true that when one commits Me'ilah and benefits from Karka of Hekdesh he is exempt from the obligation to bring a Korban Asham and from the obligation to pay the penalty of an extra fifth, but what is the source that exempts him even from paying for the principle (for what he actually used)?
Moreover, the Gemara is not discussing benefit a person derives from Karka of Hekdesh, but rather benefit that his animal derives from Karka of Hekdesh, or damage that his animal does to fruit of Hekdesh by trampling it. The exemption from liability for Me'ilah done to Karka seems to have nothing to do with the Sugya. (Acharonim)
(b) Even if one is exempt from damage done by Shen and Regel to fruits of Hekdesh that are attached to the ground, why can Rebbi Akiva not be discussing damage that was done to fruits of Hekdesh which have become detached from a field of Hekdesh? Since they are detached from the ground, the rule of "Ein Me'ilah b'Karka'os" does not apply, and therefore the owner of the Shor should be liable. (MEROMEI SADEH)
Conversely, if the rule of "Ein Me'ilah b'Karka'os" applies to all damages done by Shen and Regel to Hekdesh, why does Rashi write first that Hekdesh cannot own land because it is redeemed immediately? Even if Hekdesh could own land, one would not be liable for damages to that land because of "Ein Me'ilah b'Karka'os," as Rashi concludes. (MEROMEI SADEH)
(a) The MAHARSHAL (in Chochmas Shlomo and Yam Shel Shlomo) explains that Rashi does not intend to exempt one from damages done to land of Hekdesh because of the rule of "Ein Me'ilah b'Karka'os." Rather, Rashi means that one is obligated to pay for damages of Shen and Regel done to Hekdesh, because the Mishnah (9b) states that one is obligated for damages done to all property that does not have Me'ilah. Since land of Hekdesh has no Me'ilah, one is obligated to pay for damages done to it. Since one is obligated for damages done to it just as he is obligated for damages done to non-Hekdesh property, no Kal va'Chomer can teach that the obligation for payment for damage done to Hekdesh should be more severe than the obligation for payment for damage done to non-Hekdesh property.
As the Meromei Sadeh writes, this is very difficult to understand. The Mishnah later (9b) cannot be obligating a person to pay for damage done to Karka of Hekdesh just because there is no Me'ilah for Karka, as Tosfos (12b, DH Man Tana) proves from the Gemara later. Moreover, even if one is obligated to pay for damages done to Karka of Hekdesh, it does not diminish the sanctity of Hekdesh, and thus the Kal va'Chomer still should be valid.
The Meromei Sadeh suggests that Rashi indeed means to exempt -- through a Kal va'Chomer -- a person from paying for damages that his animal does to Hekdesh from the fact that one does not pay for Me'ilah done to Karka. When the verse exempts a person from paying for Me'ilah done to Hekdesh, it implies that the person is exempt from all payments, even for paying for damage done to the principle (since this exemption is derived through a comparison with Terumah; since Terumah cannot take effect at all while the fruit is attached to the ground, so, too, Me'ilah does not apply at all to Mechubar). If a person is exempt from payments for benefit that he derives from Karka of Hekdesh, then all the more so he is exempt from payments for damaging Hekdesh when he does not derive benefit from it. If he is exempt for damages that he does to Hekdesh, then all the more so he is exempt from damages that his animal does to Hekdesh. (See also TIFERES SHMUEL.)
(b) Perhaps Rebbi Akiva cannot be referring to fruit that is not attached to the ground since he is discussing Halachos derived from the verse of "u'Vi'er bi'Sdeh Acher" (Shemos 22:4), and the verse implies that there was damage done to the field itself (Mechubar). It is clear from Rashi that Rebbi Akiva must be referring to the type of damage that is discussed in the verse, since Rashi only considers the possibilities that Rebbi Akiva is discussing an ox damaging an ox, or a Shen or Regel damaging a field. Why does Rashi not explain that Rebbi Akiva refers to Shen or Regel that damages a Kli of Hekdesh (for which there is Me'ilah)? It must be that since Rebbi Akiva is explaining the words "Meitav Sadehu" of the verse, he must be referring to the case that the verse itself is discussing (i.e. damage done by Keren to an ox, or damage done by Shen or Regel to a field).
However, this does not answer the last question: why does Rashi need to explain that Hekdesh cannot own Karka, if one anyway is exempt from damages even if Hekdesh could own Karka? Also, there is no hint in the verse, "u'Vi'er bi'Sdeh Acher," that damage was done to fruit still attached to the field and not to fruit that was detached from the field.
It therefore seems that the two parts of the second question answer each other. "Ein Me'ilah b'Karka'os" only provides an exemption for Shen or Regel that damages something attached to the ground. Rebbi Akiva still could be discussing Shen or Regel that damages fruit of Hekdesh that is detached from the field, for which Shen and Regel are Chayav. That is why Rashi prefaces that Hekdesh tries to sell its fields immediately. Therefore, if a person sanctified a field, it is unlikely that any of the fruit would have a chance to fall off before an ox would damage it with Shen or Regel. (If the fruit fell off before the owner sanctified the field, the fruit would not be Hekdesh, because presumably the person was Makdish only the field and what is attached to it. If he wanted to sanctify fruit to Hekdesh, he would have collected fruit in a basket and sanctified it separately.) This is why Rashi explains both that Karka does not remain in the hands of Hekdesh for long, and that "Ein Me'ilah b'Karka'os." (M. KORNFELD)