1)

(a)Shor has four Chumros over Esh (like it has over Bor). Bearing in mind that Esh damages whilst it moves (like Shor), the Chumra that Shor has over Esh which it did not have over Bor is that if he hands it to a 'Chashu' to look after, he is Chayav.

(b)The Chumra of Esh over Shor is that it is Mu'ad right from the start.

(c)The two Chumros of ...

1. ... Bor over Esh are that it stands to damage right from the beginning and that if he hands it to a 'Chashu', he is Chayav.

2. ... Esh over Bor is that it damages whilst it is moving and it is Mu'ad to damage even things that are not appropriate for it to damage.

(d)Kelim are considered inappropriate by Esh and Bor.

2)

(a)Initially, we attribute the omission of the Chumra of Shor over Bor that Shor is Chayav for Kelim, which Bor is not, to the fact that the author of the Beraisa is Rebbi Yehudah who holds that Bor is Chayav for the damage of Kelim.

(b)We reject this however, from the Seifa ('Chomer b'Esh mi'be'Bor ... '), which would be problematic if the author was Rebbi Yehudah since we include among those Chumros, that Esh is Chayav for Kelim, which Bor is not. But according to Rebbi Yehudah, he is Chayav on Kelim in a Bor, too.

(c)Even if, as we then suggest, the author of the Beraisa is the Rabanan, we can justify the omission of the Chumra of Shor over Bor, that Shor is Chayav Kelim, whereas Bor is not by pointing to a second omission in the Beraisa (and a Tana is entitled to omit something from a list in a Mishnah or Beraisa provided he omits at least two cases).

(d)The additional Chumra that the Tana omits that Shor and Bor have over Esh is Tamun (which, as Chazal will later extrapolate from "O ha'Kama", is Patur by Esh).

3)

(a)Alternatively, we re-establish the Beraisa like Rebbi Yehudah, and the Chumra of Esh over Bor is not Kelim but 'Lich'chah Niyro, v'Sichsechah Avanav' (where the fire just 'licked his furrows or scorched his stones').

(b)The other Halachic Chumra of Shor over Bor is that it is Chayav for damaging a Shor Pesulei ha'Mukdashin (a Hekdesh ox that became blemished and was redeemed).

(c)We learn that a Shor Pesulei ha'Mukdashin is ...

1. ... Patur by Bor from the Pasuk "v'ha'Mes Yiheyeh Lo", and a Shor Pesulei ha'Mukdashin does not belong to the owner (since he is only permitted to eat it, but not to shear its wool, to milk it or to feed it to the dogs).

2. ... Chayav by Shor because the Torah writes "Shor Re'eihu", and once the owner has redeemed it, it is considered 'his friend's ox.

(d)The problem, if the author of the Beraisa is Rebbi Yehudah (who obligates both Tamun b'Esh and Kelim b'Bor) is what else does the Tana omit to justify omitting Shor Pesulei ha'Mukdashin?

4)

(a)We refute the suggestion that, even according to Rebbi Yehudah, the Tana omits 'Dash b'Niyro', which is Chayav by Shor but Patur by Bor on the grounds that Dash b'Niyro is not omitted, since it is included in the Tana's statement 'she'Kein Darko Leilech u'Lehazik'.

(b)'Dash b'Niro' applies to damaging willfully, which is a Toldah of Keren.

(c)Dash b'Niyro is not Chayav by Bor because it is simply not applicable.

5)

(a)We learned in our Mishnah 'Hechsharti b'Miktzas Nizko, Chavti b'Tashlumei Nizko k'Hechsher Kol Nizko', which we initially establish by someone who adds an extra Tefach to a pit that is already nine Tefachim deep. We suggest that the author of our Mishnah will not then be Rebbi who says that it is only with regard to death that we go after the one who dug the last Tefach (because a pit of less than ten Tefachim is not fit to kill). but as far as damages is concerned, both the person who dug the first nine Tefachim and the person who dug the last one share the liability.

(b)Rav Papa disagrees in that he establishes our Mishnah even like Rebbi, and the Tana is talking about Misah (not Nezikin).

(c)According to others, Rav Papa does not argue with anybody. What prompted him to make his statement was the proposal 'Leima d'Lo k'Rebbi' (which is a question, rather than an opinion).

6)

(a)Rebbi Zeira suggests that 'Hechsharti b'Miktzas Nizko ... ' (in our Mishnah) refers to a case where someone handed his ox to five people to guard and one of them was negligent, as a result of which the ox went and caused damage.

(b)We reject Rebbi Zeira's proposal however, on the grounds that ...

1. ... on the one hand, it cannot be speaking when, without the fifth one's assistance, the animal (due to its wild nature) could not have been guarded because then it would be obvious that he is Chayav (since in effect, he caused the entire damage, and not just part of it, and we would not require a Mishnah to teach us this).

2. ... on the other, without his assistance, it would have been guarded anyway because then he didn't do anything, and there is no reason for him to be Chayav.

(c)Rav Sheshes then suggests that we establish it in a case where someone added to an existing flame. We reject Rebbi Sheshes' proposal too however, for the same reason. It cannot be speaking where ...

1. ... without the additional flame, the fire would not have caused damage because then it is obvious that he would be Chayav, and the Mishnah would have been superfluous.

2. ... without it, the fire would have damaged anyway because then he didn't do anything, and there is no reason for him to be Chayav.

(d)What makes the case where the damage would not have occurred had the last man not contributed to it, worse than our case (of the man who added the tenth Tefach), in the case of ...

1. ... the ox is the fact that the man who dug the first nine Tefachim did create a 'damager', and in fact, contributed towards the final damage or death, whereas those who did guard the ox, did not contribute towards the ultimate damage at all, rendering the man who did not solely responsible.

2. ... the fire is the fact that, had he not added the additional fuel, the fire would have fizzled out, making him solely responsible, whereas in our case, the man who dug the first nine Tefachim remains a partner in the damage. (In both cases therefore, it would be no Chidush to tell us that the last man is fully liable, whereas in the case of the man who dug the tenth Tefach, the Tana needs to inform us that he is).

7)

(a)Then Rav Papa asks why we could not establish it in the case cited in a Beraisa where five men were sitting on a bench without breaking it, when a sixth man sat down and broke it. Rav Papa adds that he is talking about someone like Papa bar Aba who was an exceptionally heavy-set man.

(b)We reject Rebbi Papa's proposal, using exactly the same argument as before, inasmuch as had the bench not broken without Papa bar Aba, then it is obvious that he is Chayav, and if it would, then there is no Chidush. Assuming that the bench would not have broken without Papa bar Aba, it is more obvious that he alone would be Chayav, than the case of the man who dug the tenth Tefach because, as opposed to that case, the bench had not even begun to break before Papa bar Aba came along.

(c)The Beraisa, which does discuss the case speaks when without Papa bar Aba, the bench would have broken in two hours, and now it broke in one.

8)

(a)We attempt to absolve Papa bar Aba from the entire blame by countering that, were it not for the other five men's assistance, the bench would not have broken (meaning that they ought to have stood up).

(b)We refute this suggestion however by changing the case to where Papa bar Aba did not actually sit on the bench, but that he leaned against the men who were sitting there, preventing them from getting up, even if they had wanted to.

(c)And we negate the previous explanation that without Papa bar Aba, the bench would have broken in two hours and now it broke in just one but that, without him, it would not have broken at all, and now, because of him, it did break.

(d)The Tana is now coming to teach us the principle that 'Kocho k'Gufo', a person's force is considered like his body (in which case, it is considered as if Papa bar Aba was himself sitting on the bench).

9)

(a)Finally, we ask why we cannot establish 'Hechsharti b'Miktzas Nizko' by the case cited in the Beraisa of ten men who lay about someone with ten sticks and killed him. The Tana Kama declares them all Patur, irrespective of whether they all beat him simultaneously or consecutively because we do not know who actually killed him (see Rashi in Sanhedrin).

(b)Rebbi Yehudah ben Beseira rules that if they beat him consecutively, then the last one is Chayav.

(c)The basis of their Machlokes is the Pasuk "v'Ish Ki Yakeh Kol Nefesh Adam", which, according to ...

1. ... Rebbi Yehudah ben Beseira means even a little bit of the Nefesh.

2. ... the Rabanan, means the whole Nefesh.

(d)We now propose to establish our Mishnah like Rebbi Yehudah ben Beseira.

10)

(a)We answer the current question in one of two ways; either that the Tana is only concerned with damages, not murder ('bi'Ketalsa Lo ka'Mayri'), the other that he does not want to get involved in Machlokes ('bi'Pelugta Lo Kamayri').

(b)We can establish our Mishnah 'bi'P'lugta' like the Rabanan (who are a majority) against Rebbi (which we did earlier in the case of a pit, according to the first opinion), but not like Rebbi Yehudah ben Beseira (who is an individual opinion) against the Rabanan.

11)

(a)We can extrapolate from the fact that our Mishnah says 'Chavti b'Tashlumei Nizko' (and not just 'Chavti b'Nizko') that the Nizak keeps the carcass of the gored ox as part payment, and the Mazik pays the balance.

(b)

1. Rebbi Ami learns this from the Pasuk in Emor "Makeh Nefesh Beheimah Yeshalmenah" which he reads as if the Torah had written "Yashlimenah" ('he shall complement what is missing').

2. Rav Kahana learns it from the Pasuk in Mishpatim "Im Tarof Yitaref Yevi'ehu Ed ha'Tereifah Lo Yeshalem" as if it had written " ... Yevi'ehu Ad ha'Tereifah" (excluding the Tereifah itself, which the Nizak already has). The Pasuk is referring to a Shomer Sachar who caused the animal to be mauled to death through his negligence.

3. Chizkiyah and Tana d'Bei Chizkiyah learn it from the Pasuk there "Shalem Yeshalem Shor Tachas ha'Shor, v'ha'Mes Yiheyeh Lo" because if "Lo" referred to the Mazik, Abaye explains, the Torah might as well not have mentioned it (since, seeing as he has to pay for the entire damage, it is obvious that he takes the carcass).

(c)The question now arises why we need all three Pesukim. Even though the Torah wrote ...

1. ... "Makeh Nefesh Beheimah Yeshalmenah", it needs to write "Im Tarof Toraf Yevi'ehu Ed ha'Tereifah ... " to teach us that the Nizak takes the carcass even in a case which is common (and the Torah does not penalize the Mazik).

2. ... "Im Tarof Toraf Yevi'ehu Ed ha'Tereifah ... ", it needs to write "Makeh Nefesh Beheimah Yeshalmenah" to teach us that the Nizak takes the carcass even in a case where the Mazik damaged with his hands.

3. ... these two, it needs to write "v'ha'Mes Yiheyeh Lo" to teach us that the Nizak takes the carcass, that even though it is both common and the damage was performed deliberately (by the damaging ox), the Torah still does not penalize the Mazik.

4. ... "v'ha'Mes Yiheyeh Lo", it needs to write the other two to teach us that it even applies when it is the person himself who damages (and is not confined to where the damage was caused by his property).

(d)Rav Kahana asked Rav (or Rava), why, having already taught us that a Mazik can even pay oats, the Torah then sees fit to write "v'ha'Mes Yiy'heh Lo", 'le'Nizak', which is really obvious, to which he replied that the Torah is coming to teach us that (not only must the Nizak take the carcass, but that) he must bear the loss should the carcass depreciate.

12)

(a)We query Rav (or Rava) from a Beraisa. The Tana Kama explains "Im Tarof Yitaref Yevi'eihu Ed" to mean that the Shomer must bring witnesses that it was torn b'Ones, and we learn that he is Patur from Onsin from the Pasuk in Mishpatim " ... u'Mes O Nishbar O Nishbah, Ein Ro'eh, Shevu'as Hash-m Tiheyeh bein Sheneihem" (since the purpose of a Shevu'ah is to exempt the defendant from paying).

(b)Aba Shaul interprets "Ed" to mean the carcass ('Adudah'), and the Pasuk now means that the Nizak brings the carcass to Beis-Din for assessment.

(c)Seeing as Aba Shaul certainly agrees with the Tana Kama's Halachah, it is clearly the Chachamim who disagree with Aba Shaul. So initially, we explain that Aba Shaul requires the Nizak to bring the carcass to Beis-Din for assessment (because he holds 'P'chas Neveilah d'Nizak' [it is the Nizak who must bear the loss, should the Neveilah depreciate]), and the Rabanan disagree (because they hold 'P'chas Neveilah d'Mazik').

(d)The problem that this creates with Rav (or Rava ['Lo Nitzr'cha Ela li'P'chas Neveilah']) is seeing as "v'ha'Mes Yiheyeh Lo" must come to teach us 'P'chas Neveilah d'Nizak', how can Tana'im argue over the matter?