1)

(a)We now query Rav Nachman, who currently holds that there is Chavatah by less than ten Tefachim, from a Beraisa which states that the Beis ha'Sekilah (from which they would throw down a man who was Chayav Sekilah) was twice the average height of a person, plus the height of the man who was sentenced.

(b)The Kashya on Rav Nachman is why the Beis ha'Sekilah needed to be so high.

(c)We retort that, in any event, everyone agrees that there is Chavatah at ten Tefachim, so why did they need to make the Beis ha'Sekilah more than ten Tefachim, and we reply with a statement by Rav Nachman Amar Rabah bar Avuhah, who learns from the Pasuk "v'Ahavta l'Re'acha Kamocha" that even putting a person to death should be performed in the least painful way possible. Consequently, even though they would throw boulders on top of a person who did not die immediately, they would try to avoid this (by throwing him down from a greater height).

(d)And the reason that they did not make it higher still, to ensure that he died immediately was in order to minimize the ensuing spectacle of a blood-stained broken body, which in turn, is a matter of Kavod ha'B'riyos [human dignity]).

2)

(a)The Tana of the Beraisa Darshens from the Pasuk in Ki Setzei "Ki Yipol ha'Nofel Mimenu" "Mimenu", 've'Lo l'Tocho' (that it is only the roof of a house from which one can fall into the area below, that requires a Ma'akeh (a parapet), but not a raised area from which one falls on to the roof of a house below.

(b)Here too, we query Rav Nachman as to why the Tana needs to specify that, in both cases, the victim fell ten tefachim, seeing as in his opinion, there is Chavatah at even less than ten Tefachim. And we answer that the Torah confines the obligation to put up a Ma'akeh to a house, and a building of less than ten Tefachim tall is not considered a house.

(c)Considering that a house, whose roof is ten Tefachim from the ground, after deducting the roof and the plaster, is not ten Tefachim from the inside (and therefore not considered a house) we establish the Beraisa by a house which is sunk below ground level (corresponding to the roof and the plaster), to make up the ten Tefachim.

(d)The problem with this answer is that seeing as the Torah is talking about a house that is ten Tefachim tall on the inside, how do we know from what height a Ma'akeh is required (seeing as the height of the outside of the house will depend on how deep he dug on the inside)?

3)

(a)So we retract from our previous explanation of Rav Nachman. Rav Nachman really declared the ox a Tereifah, even though the canal was less than ten Tefachim deep because seeing as it fell into the canal in a standing position, we need to add the four Tefachim space between its belly and the ground to the six Tefachim of the canal. Note, that according to this explanation, Rav Nachman now holds that there is no Chavatah (for Misah) of less than ten Tefachim, and he could hold like Shmuel too).

(b)Our Mishnah specifies ten Tefachim (and not less) because it speaks when the animal rolled into the pit, in which case there was no space between its belly and the ground, when it fell in.

4)

(a)In a case of a pit belonging to two partners, where first one partner, and then the other, passed by the pit without covering it, our Mishnah rules that both partners are liable.

(b)According to Rebbi Akiva (who holds that a Bor bi'Reshus ha'Yachid is Chayav) it is easy to figure out the case of a pit belonging to two partners. But it is not so easy to find the case by a Bor bi'Reshus ha'Rabim. The case cannot be where ...

1. ... Reuven and Shimon asked a Shali'ach to dig a pit in the street on behalf of both of them because of the principle 'Ein Shali'ach li'Devar Aveirah' (in which case it would be the Shali'ach who would be liable, and not Reuven and Shimon).

2. ... Reuven dug five Tefachim, and then Shimon added another five because then Shimon alone would be Chayav, seeing as he is the one who made it into a pit that can kill.

(c)According to Rebbi, the simple case of Bor shel Shutfin where each one digs five Tefachim is li'Nezikin (with regard to subsequent damages [but not for Misah]).

(d)Rebbi Yochanan finally establish the case of a Bor shel Shutfin in a Reshus ha'Rabim by Nizakin even according to the Rabanan, and even by Misah according to Rebbi where Reuven and Shimon pulled out the final clod of earth together, to bring the pit to a depth of ten Tefachim.

5)

(a)According to the Tana Kama in the Beraisa, if Reuven digs a pit of five Tefachim, and Shimon adds another five, it is Shimon who is liable, not only for Misah, but for damages, too. Rebbi maintains that the Shimon is liable for Misah, because he is the one who turned it into a pit that kills, but as far as damages is concerned, they are both liable.

(b)The Rabanan learn their opinion from the Pasuk "Ki Yiftach" ... "v'Chi Yichreh Ish Bor". Rebbi requires both Pesukim intrinsically since we would not otherwise have know that both are equally Chayav by a pit of ten Tefachim, as we explained above.

(c)The Rabanan too, agree with that Derashah. So we change their source to "v'Chi Yichreh Ish Bor" ('Echad, v'Lo Shenayim'). Rebbi learns from "Ish Bor" "Ish Bor", 've'Lo Shor Bor' (as we learned earlier).

(d)Here too, the Rabanan agree with Rebbi's Derashah, and they learn to obligate only the last digger and to exempt the first from the second "Ish Bor".

(e)According to Rebbi the second "Ish Bor" is superfluous (only since it needed to write it once (to teach us the Derashah introduced by Rebbi), it repeated it, even though there, it is not necessary.

6)

(a)The Rabanan know that it is the last digger who is Chayav rather than the first because the Torah says "v'ha'Mes Yiheyeh Lo", which teaches us that it is the one who caused the death who is responsible.

(b)Rava learns that a Bor is Patur if a Shor Pesulei ha'Mukdashin (i.e. a blemished Bechor [which belongs to a Kohen] or a blemished Korban that has been redeemed) falls into it from "v'ha'Mes Yiheyeh Lo", and a Shor Pesulei ha'Mukdashin is his only to eat, but not to do with as he pleases.

(c)Rava speaks specifically about a Shor Pesulei ha'Mukdashin, and not an unblemished ox of Hekdesh because, as we have already learned, regarding a Shor shel Hekdesh, one is not Chayav for the damage done by a Shor either (since it is not included in "Shor Re'eihu"), whereas on a Shor of Pesulei ha'Mukdashin, one is.

(d)Despite the fact that we need the Pasuk "v'ha'Mes Yiheyeh Lo" to teach us Rava's Din, the Rabanan nevertheless learn from it that it is the last digger who is liable because the Pasuk automatically implies that it is concerned specifically with an animal that was killed, in which case it is clearly the person who caused its death who is liable.

7)

(a)In a case where the first digger digs a pit of ten Tefachim, the second, digs down to twenty, and the third, down to thirty Tefachim, the Beraisa considers them all liable for damages. Initially, we reconcile this with another Beraisa, which renders Chayav only the last digger who plasters the wall of a pit which somebody else dug with paintings by establishing the first Beraisa like Rebbi, and the second, like the Rabanan.

(b)Rav Zevid however, establishes both Beraisos like the Rabanan, even the first Beraisa, which obligates all the diggers by differentiating between the original case, where the first digger did not dig deep enough to cause his death, and this Beraisa, where each digger did.

(c)The basis for this distinction lies in the source Pasuk "v'ha'Mes Yiheyeh Lo", which only precludes diggers who did not dig a Shi'ur Misah, but not those who did.

(d)The Rabanan need the Pasuk "Ki Yichreh Ish Bor" to learn that only one of the diggers is Chayav and not both. They cannot learn that from "v'ha'Mes Yiheyeh Lo" (despite the fact that they anyway learn from there that the second one is Chayav) because that Pasuk is needed first and foremost to teach us the P'tur of Shor Pesulei ha'Mukdashin, and it is only once we know from another source that only of the diggers is Chayav, that we can use it to teach us which one (in the form of a revelation, rather than a full Derashah.

8)

(a)We reconcile the Reisha of the Beraisa, where, as we just explained, all the diggers are liable because they each dug sufficient to kill, with the Seifa, which obligates only the last 'digger', who plastered the wall of a pit which someone else had dug, with paintings, despite the fact that the first digger had dug a ten-Tefachim pit by establishing the Seifa where initially, there was not sufficient vapor to kill an animal (which will be discussed later on the Amud). By adding plaster to the walls, the second man turned it into a pit which could.

(b)In the second Lashon, Rav Zevid establishes the entire Beraisa like Rebbi. He establishes the Seifa, which obligates only the plasterer where initially, there was not sufficient vapor even to damage either.

(c)According to this Lashon, in the Reisha of the Beraisa, even though each one dug a Shi'ur Misah the Rabanan would nevertheless hold that only the last one will be liable.

(d)This is fine according to Rav, who holds 'le'Havla v'Lo l'Chavatah' (and whose opinion Rav Zevid appears to follow). For the Seifa to go like Rebbi, Shmuel would establish it where the floor of the pit was lined with wads of cotton wool (eliminating the aspect of Chavatah).

9)

(a)Rava states that someone who completes a pit of ten Tefachim deep by adding a stone on top, is involved in the Machlokes between Rebbi and the Rabanan (whether the original digger alone is liable for damages too, or whether he is only liable for causing an animal's death). We might otherwise have thought that he will only be a partner in the damage there where he digs at the bottom of the pit, in which case it is his vapor that participates in the damage or that causes the death of the animal that fell into it, but not where he builds at the top, where the section that he built does not produce any vapor (and he ought therefore to be Patur, according to both Rebbi and the Rabanan).

(b)Rava asks what the Din will be if the person who dug the tenth Tefach or who completed a pit of ten Tefachim by placing a stone on top, subsequently fills in what he dug or removes the stone that he placed whether we say what he dug, he removed (and he is Patur) that, when he completed the pit, it became exclusively his, and there is no retracting.

(c)The outcome of Rava's She'eilah is 'Teiku' (Tishbi Yetaretz Kushyos v'Ibayos).

10)

(a)Rabah bar bar Chanah Amar Rav Shmuel bar Marsa states that someone who digs a pit to a depth of eight Tefachim, but which contains two Tefachim of water, is liable should an animal fall into it and die because one Tefach of water is equivalent to two of space.

(b)We then ask about a case where someone digs a pit ...

1. ... of nine Tefachim, containing one Tefach of water which might be Patur in spite of the previous ruling, because a mere Tefach of water is too small an amount to be considered like two Tefachim of air.

2. ... seven Tefachim, containing three Tefachim of water which might be Patur in spite of the original ruling, because even though there is even more water than there is there, nevertheless, water lying in a space of only seven Tefachim of air is not as lethal as less water lying in a space of nine Tefachim.

(c)The outcome of these two She'eilos is -Teiku.

11)

(a)Rav Shizbi asked Rabah whether someone who widened the mouth of a ten-Tefachim pit is Chayav. Despite the fact that he reduced the Hevel in the pit, he might nevertheless be Chayav because he brought the Mazik closer to potential damage.

(b)In the first Lashon, Rav Ashi resolves the She'eilah depending on whether it dies due to Havla, in which case he will be Patur (because if anything, he reduced the vapor, minimizing the chances of the animal dying), or whether it died through the Chavatah, in which case he will be Chayav, because by extending the mouth of the pit, he increases the chances of this happening, as we explained.

(c)Alternatively, he resolves the She'eilah by investigating from which side the animal fell into the pit. If it fell in from the side where he dug, he will be Chayav, but if it fell from the other side, he will be Patur.

(d)One does not contend with the vapor of a pit that is wider than it is deep, only with the knock (according to Shmuel). Rabah and Rav Yosef disagree over what Rabah bar bar Chanah said in the name of Rebbi Mani, and we do not know who said what. One of them said that as long as the width of the pit does not exceed its depth (i.e. they are equal), there is vapor; whilst the other said that as long as the depth does not exceed the width (i.e. they are equal) there is not.

12)

(a)We learned in our Mishnah that if first one partner passes by the well without covering it, and then the second one, the second one is liable. When the Tana says 'passes by' he means that he uses it. Otherwise, seeing as neither of them used the pit, why will the first one be Patur?

(b)Here too, Rabah and Rav Yosef disagree over what Rabah bar bar Chanah said in the name of Rebbi Mani regarding from which point the first partner becomes Patur. One of them says he is Patur if he leaves whilst the second partner is using it, the other one says that he is only Patur when he actually hands him the bucket (with which they used to cover the pit when they had finished using it).

(c)We connect their Machlokes to a Machlokes Tana'im, who present the same opinions in a case where Reuven is drawing water from a pit, and Shimon asks to be allowed to draw. Rebbi Eliezer ben Yakov holds that Reuven is only Patur once he has handed Shimon the bucket to cover the pit. The Rabanan declare him Patur as long as Shimon is using the pit when he leaves.

(d)The basis of their Machlokes lies in the principle of 'Bereirah'.

1. The Rabanan exempt Reuven from the moment he sees Shimon using the pit because they hold 'Ein Bereirah', in which case it is as if Shimon has borrowed the pit from Reuven, exempting Reuven from all liability.

2. Rebbi Eliezer ben Yakov considers him liable even then because he holds 'Yesh Bereirah', in which case, each one drinks from his own section, and Shimon's using his section of the pit does not exempt Reuven from covering his (only since their respective sections are undefined, this means that each one is liable for the whole pit).

13)

(a)Ravina connects this Machlokes Tana'im with another Machlokes between the same disputants in a Mishnah in Nedarim, where the Tana Kama forbids two partners who made a Neder forbidding Hana'ah from each other, to enter their shared Chatzer. Rebbi Eliezer ben Yakov permits it ...

(b)... because he holds 'Yesh Bereirah', whereas the Rabanan hold 'Ein Bereirah'.

14)

(a)Rebbi Elazar rules that if Reuven sells Shimon a water-pit, he acquires it as soon as Reuven hands him the bucket, and Rebbi Yehoshua ben Levi holds the same with regard to handing Shimon the key, when he is purchasing a house. They cannot be referring to a case where Shimon is acquiring the pit or the house with money because then, what is the point of the bucket and the key?

(b)They must therefore be speaking where Shimon intends to acquire it by means of a Kinyan Chazakah. It is however, necessary for the Reuven to first invite the him to make the Kinyan, which is generally done by saying to him 'Lech Chazek u'Keni'; and the Chidush here is that handing him the bucket or the key is equivalent to 'Lech Chazek u'Keni'.

(c)By the same token, when acquiring a house, in lieu of 'Lech Chazek u'Keni'- Rebbi Yehoshua ben Levi permits one to hand over the key ...

(d)... before going on to perform Kinyan Chazakah.