1)

(a)What problem do we have with establishing the ox similar to the man from the Din in the Mishnah 'Shoro she'Biyesh Patur, v'Hu she'Biyesh Chayav'?

(b)Initially, we answer this Kashya by reinterpreting 'Niskaven l'Vayesh', according to the Sugya in 'Keitzad ha'Regel'. How does the Gemara there explain 'Niskaven l'Vayesh'?

1)

(a)The problem with establishing the ox similar to the man is from the Din in the Mishnah 'Shoro she'Biyesh Patur, v'Hu she'Biyesh Chayav' is how it is possible for an ox to have the express intention of causing a person embarrassment.

(b)Initially, we answer this Kashya by reinterpreting 'Niskaven l'Vayesh', according to the Sugya in 'Keitzad ha'Regel' which explains that it is not Kavanah to embarrass that is required, but Kavanah to cause damage.

2)

(a)Rava answers the Kashya by citing Tana d'Bei Chizkiyah. What does Tana d'Bei Chizkiyah learn from the Pasuk in Emor, which compares "Makeh Adam" to "Makeh Beheimah"?

(b)If the Hekesh teaches us that even Shogeg and Ones is Patur from paying, what is the significance of 'Bein Derech Yeridah l'Derech Aliyah'? What makes one more obvious than the other?

(c)How does Rava then interpret the Lashon of our Mishnah 'Mipnei she'Hu Nadun (or Mischayev) b'Nafsho'?

2)

(a)Rava answers the Kashya by citing Tana d'Bei Chizkiyah, who learns from the Pasuk in Emor, which compares "Makeh Adam" to "Makeh Beheimah" that just as the Torah does not differentiate between Mezid, Shogeg and Ones, when it comes to Adam ha'Mazik having to pay for killing an animal, so too, when it comes to killing a person, the Torah does not differentiate between Mezid (where he is Patur from paying because of 'Kam leih b'de'Rabah Mineih'), Shogeg and Ones, to exempt him from paying.

(b)The Hekesh teaches us that even Shogeg and Ones is Patur from paying (even though they are not actually Chayav Misah), and, when the Tana talks about 'Bein Derech Yeridah l'Derech Aliyah', it is referring to the Din of Galus, which a murderer is Chayav for having killed with a downward stroke, and he is teaching us here that he would also be Patur from paying if he killed him with an upward stroke, even though he is not Chayav Galus.

(c)Rava interprets the Lashon of our Mishnah 'Mipnei she'Hu Nadun (or Mischayev) b'Nafsho' to mean that since where he is Chayav Misah (i.e. where he does need the ashes), he is Patur from paying, even though he does not.

3)

(a)What does our Mishnah rule in a case where an ox that is being chased by another ox ends up being injured, if the owner of the injured ox blames the ox that was chasing it, whereas the owner of the latter counters that it hurt itself on a rock?

(b)And what does the Tana say in the equivalent case, but where the injured ox had been chased not by one, but by two oxen (where we know for sure that the ox was by killed by one of them)?

(c)Under which circumstances would the latter be liable to pay?

3)

(a)In a case where an ox that is being chased by another ox ends up being injured, and the owner of the injured ox blames the ox that was chasing it, but the owner of the latter counters that it hurt itself on a rock, our Mishnah rules that the latter is Patur, due to the principle 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' ...

(b)... and the same applies to the equivalent case, but where the injured ox was chased not by one, but by two oxen (one of which definitely injured the wounded ox).

(c)The latter would however, be liable to pay if he happened to be the owner of both oxen, (seeing 'Mah Nafshach, he will be Chayav (and the principle 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' will not apply).

35b----------------------------------------35b

4)

(a)The Mishnah discusses a case where one of the two oxen that had been chasing the ox that was killed, was a big ox or a Mu'ad and the other one, a small ox or a Tam, and the Nizak now claims that it was the big ox or the Mu'ad that caused the damage, whereas the Mazik argues that it was the small ox or the Tam. What difference does it make whether the damage was caused by ...

1. ... the big ox or the small one?

2. ... the Mu'ad or the Tam?

(b)What does the Tana rule in this case?

(c)What is the final set of cases in the Mishnah?

(d)What does the Tana rule there?

4)

(a)The Mishnah discusses a case where one of the two oxen that had been chasing the ox that was killed was a big ox or a Mu'ad and the other one, a small ox or a Tam, and the Nizak now claims that it was the big ox or the Mu'ad that caused the damage, whereas the Mazik argues that it was the small ox or the Tam. The difference will be that if the damage was caused by ...

1. ... the big one (assuming they are both Tamin and he can only claim from the body of the Mazik) then he will be more likely be able to claim his full Chatzi Nezek, whereas if it was the small one, he might not.

2. ... the Mu'ad, he will receive full damages, whereas if it was the Tam, he will only be entitled to Chatzi Nezek.

(b)The Tana rules here too that 'ha'Motzi me'Chaveiro Alav ha'Re'ayah', and he only receives what the Mazik admits.

(c)The final set of cases in the Mishnah is where two small oxen were being chased by two big ones, or by a Mu'ad and a Tam. The Nizak subsequently claims that the big ox or the Mu'ad gored his big one and the small ox or the Tam, his small one; whereas the Mazik claims that it happened the other way round.

(d)Once again, the Tana rules 'ha'Motzi me'Chaveiro, Alav ha'Re'ayah'.

5)

(a)Rebbi Chiya bar Aba points out that the author of our Mishnah cannot be Sumchus. What would Sumchus say in all the cases in our Mishnah?

(b)Rebbi Aba bar Mamal asked Rebbi Chiya bar Aba whether Sumchus issued his ruling even in a case of Bari u'Bari (where both the claimant and the defendant state their case with certainty). What did the latter reply?

(c)How does Rebbi Chiya bar Aba know that our Mishnah is speaking even when the Mazik is Bari (we are not really concerned with the Nizak as we shall now see)?

(d)Does this mean that, according to Sumchus, every claimant receives half his claim? Does Sumchus not hold of Chazakah?

5)

(a)Rebbi Chiya bar Aba points out that the author of our Mishnah cannot be Sumchus who would say 'Cholkin' in all the cases in our Mishnah.

(b)Rebbi Aba bar Mamal asked Rebbi Chiya bar Aba whether Sumchus issued his ruling even in a case of Bari u'Bari (where both the claimant and the defendant state their case with certainty) to which the latter replied in the affirmative.

(c)Rebbi Chiya bar Aba knows that our Mishnah is speaking even when the Mazik is Bari (we are not really concerned with the Nizak as we shall now see) because he is quoted as saying 'Lo Ki ... '.

(d)This does not mean that, according to Sumchus, every claimant receives half his claim; only in cases such as these, where, at the outset, Beis-Din have a Safek to contend with (weakening the Chazakah with which Sumchus on principle agrees).

6)

(a)Assuming that the entire Mishnah speaks by Bari u'Bari, Rav Papa asks from the Seifa on Rabah bar Nasan, who says that if Reuven admits that he owes Shimon barley when Shimon has claimed wheat, he is Patur. Why is that?

(b)What Kashya does Rav Papa ask from the Seifa of our Mishnah ('Hayah Echad Gadol v'Echad Katan ... ', which is really the Metzia) on Rabah bar Nasan? What would he say in those cases?

(c)So we are forced to learn the Seifa by Bari v'Shema. Who is the Bari and who is the Shema?

(d)How do we know that it is not the other way round?

6)

(a)Assuming that the entire Mishnah speaks by Bari u'Bari, Rav Papa asks from the Seifa on Rabah bar Nasan, who says that if Reuven admits that he owes Shimon barley when Shimon has claimed wheat, he is Patur because, by virtue of the fact that he did not claim it, it is clear that Shimon is Mochel (has foregone) the barley.

(b)Rav Papa asks from the Seifa of our Mishnah ('Hayah Echad Gadol v'Echad Katan ... ', which is really the Metzia) on Rabah bar Nasan that if, as Rebbi Chiya bar Aba claims, the Reisha is speaking by Bari u'Bari, then so is the Seifa (otherwise, we might have said that the Seifa says 'Lo Ki' because of the Reisha), in which case the Mazik ought to be Patur completely, seeing as the Mazik is admitting that the small one or the Tam caused the damage, whereas the Nizak is claiming that the big one or the Mu'ad did it; and according to Rabah bar Nasan, the Nizak ought to be Patur completely.

(c)So we are forced to learn the Seifa by Bari v'Shema the Mazik is the Bari, and the Nizak, the Shema ...

(d)... because if the Nizak was the Bari and the Mazik, the Shema seeing as the Nizak is Mochel the Tam, why should he then be able to claim from it?

7)

(a)Having concluded that the Seifa speaks when the Nizak is Shema, and the Mazik, Bari, why can the Reisha not speak likewise?

(b)So how do we establish the Reisha?

(c)Since the Reisha and the Seifa are not similar anyway, why can Rebbi Chiya bar Aba then not establish the Reisha by Bari u'Bari (only), like he did initially?

7)

(a)Even though the Seifa speaks when the Nizak is Shema, and the Mazik, Bari, the Reisha cannot speak likewise because it is obvious that Sumchus would not say 'Cholkin' in such a case (seeing as the claimant himself is not certain of his claim), and it would therefore be unnecessary for our Tana to preclude his opinion (which, according to Rebbi Chiya bar Aba, is his major objective).

(b)So we establish the Reisha where the Nizak is Bari and the Mazik, Shema (or when they are both Bari see Tosfos DH 'Reisha').

(c)In spite of the fact that the Reisha and Seifa are anyway not similar, Rebbi Chiya bar Aba cannot establish the Reisha by Bari u'Bari (only), like he did initially because then they would not balance at all, whereas if they speak in reverse cases, they do.

8)

(a)In light of the Mishnah in Shevu'os 'Ta'ano Chitin v'Hodeh Lo bi'Se'orim Patur', what is Rabah bar Nasan coming to teach us? How might we interpret the Mishnah in a way that renders his statement necessary?

(b)In the first case in the Seifa 'Hayu ha'Nizakin Shenayim, Echad Gadol v'Echad Katan ... ', our Mishnah rules 'ha'Motzi me'Chaveiro, Alav ha'Re'ayah'. What do we initially extrapolate from there? What will happen in the event that he does bring a proof?

(c)How do we amend the inference to reconcile it with Rabah bar Nasan?

(d)And how do we reconcile this answer with another Beraisa, which specifically states 'Harei Zeh Mishtalem Al ha'Katan min ha'Gadol u'le'Gadol min ha'Katan'?

8)

(a)When the Mishnah in Shevu'os rules 'Ta'ano Chitin v'Hodeh Lo bi'Se'orim Patur' what the Tana might mean is Patur from paying for the wheat, but Chayav for the barley. Consequently, Rabah bar Nasan needs to teach us that he is Patur from the barley as well.

(b)In the first case in the Seifa 'Hayu ha'Nizakin Shenayim, Echad Gadol v'Echad Katan ... ', our Mishnah rules 'ha'Motzi me'Chaveiro, Alav ha'Re'ayah'. Initially, we extrapolate from there that if he were to bring a proof, he would receive the smaller claim (even though that is not what he claimed [a Kashya on Rabah bar Nasan]).

(c)We reconcile this with Rabah bar Nasan by amending the inference to 'Ra'uy Litol v'Ein Lo' (should he indeed bring a proof).

(d)And we reconcile this answer with another Beraisa, which specifically states 'Harei Zeh Mishtalem Al ha'Katan min ha'Gadol u'le'Gadol min ha'Katan' by establishing it where the Nizak actually seized the Mazik (see Tosfos DH 'Ra'uy Litol').

9)

(a)We ask the same two Kashyos on Rabah bar Nasan from the second case 'Hayah Echad Tam v'Echad Mu'ad ... ' that we asked on the first one. How do we answer them?

(b)Why do we not answer these Kashyos by establishing the case by Bari v'Shema, like we did in the Reisha and the Metzia of the Mishnah?

(c)And why did Rabah bar Nasan not establish the Reisha and the Metzia by Bari u'Bari, and when the Tana says 'ha'Motzi me'Chaveiro ... ', there too, he means to say that in the event that he does bring a proof, he ought to get, but does not (because of Rabah bar Nasan's Din)?

9)

(a)We ask the same two Kashyos on Rabah bar Nasan from the second case 'Hayah Echad Tam v'Echad Mu'ad ... ' that we asked on the first one, and we answer them in exactly the same as we answered them in the first case.

(b)We decline to answer these Kashyos by establishing the case by Bari v'Shema, like we did in the Reisha and the Metzia of the Mishnah because the Seifa needs to teach us a Chidush in its own rights.

(c)The reason that Rabah bar Nasan did not establish the Reisha and the Metzia by Bari u'Bari, and when the Tana says 'ha'Motzi me'Chaveiro ... ', there too, he means to say that in the event that he does bring a proof, he ought to get, but does not (because of Rabah bar Nasan's Din) is because Rabah bar Nasan disagrees with Rebbi Chiya bar Aba. According to him, Sumchus did not say Cholkin wherever the defendant claims Bari. Note, that in that case, Rabah bar Nasan does not agree with the implication from 'Lo Ki' either. (See also Tosfos, DH Ra'uy Litol').