1)

TOSFOS DH KAVASH ALAV ETC.

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(Summary: Tosfos points out that both the Reisha and the Seifa are necessary.)

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(a)

Clarification: In 'Eilu hein ha'Nisrafin' Sanhedrin, Daf 76b & 77a) the Gemara explains that 'Kavash' in the Reisha and 'Dochfo' in the Seifa each teach us a Chidush.

2)

TOSFOS DH K'RA KESUSI CHAYAV

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(Summary: Tosfos explains the Gemara's proof.)

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(a)

Question: How can the Gemara bring a proof from there? Perhaps here is different, since he (the Nizak) ought to have removed the coal from his garment?

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(b)

Proof: Seeing as Rabah states that 'On his garment, he is Chayav', implies that on his flesh, he is Patur; whereas the Mishnah there (on Daf 92a) rules that, if he says 'Blind my eye', even if he adds 'on condition that you will be Patur', he is Chayav.

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1.

Proof (cont.): ... it must therefore be that 'on his flesh' is Patur, because he ought to have removed it?

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(c)

Answer: The Gemara considers it obvious that on the one hand, he will remove the coal from on his flesh, but will not bother to do so from on his garment ...

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1.

Answer (cont.): ... and it only needs to bring a proof that we do not say that since he places the coal on the garment, and the Nizak is silent, he intends to exempt the Mazik from paying.

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(d)

Proof: Seeing as we find that the Mazik is Chayav even where the Nizak orders him to tear the garment.

3)

TOSFOS DH HINI'ACH GACHELES AL LEIV AVDO ETC.

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(Summary: Tosfos establishes the case.)

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(a)

Clarification #1: It speaks where the Eved is bound and his master is standing beside him, as Tosfos explained above (on Daf 22b, DH 've'Hayah').

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(b)

Clarification #2: And it also speaks where the Eved did not die but was only wounded ...

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(c)

Reason: ... which is why Rabah has a Safek that, perhaps the master will not bother to remove the coal, since the Mazik will be obligated to pay for the damage.

4)

TOSFOS DH VE'IKA NAMI DE'KARU LA'CHAVITA KADA ULE'KADA CHAVITA

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(Summary: Tosfos explains how both cases are needed and elaborates.)

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(a)

Clarification: Both cases are necessary - If he agreed to give him a Kad, which he acquired with a Sudar, which obligated him to pay, the purchaser can refuse to pay unless the seller gives him a Chavis, because he calls a Chavis a Kad. This is due to the fact that he is Muchzak and we do not follow the Rov.

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1.

Clarification (cont.): Likewise if he agreed to give him a Chavis for which the purchaser paid, the seller can insist on giving him a Kad, because he calls a Kad a Chavis and we do not follow the Rov.

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(b)

Even According to Rav: Rabeinu Tam explains that even Rav, who holds in Perek ha'Mocher Peiros (Bava Basra, Daf 92a, See Tosfos there Amud Beis DH 'veLechzi') and later in 'ha'Parah' (Daf 46a) 'Holchin be'Mamon achar ha'Rov, in the case of someone who sells an ox to his friend and it turns out to be a goring ox, will concede here that the one who is Muchzak can say to the one who is trying to take away from him 'You cannot take from me, even though the Rov supports you, because I know that I belong to the minority.

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1.

Even According to Rav (concl.): But in the case where 'the ox turns out to be a goring ox' the seller cannot say 'I know that you belong to the minority who buys having in mind to Shecht', since, on the contrary, the purchaser can reply to the seller 'You tricked me, since I know that I belong to the Rov who buys having in mind to plow'.

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(c)

Question: Let us see whether he paid the price of a jar or of a barrel, in the same way as the Gemara asks later, at the beginning of 'ha'Parah' (Ibid.) and in 'ha'Mocher Peiros (Bava Basram Daf 92a) 'Let us see; If he paid the price of a plowing ox, then he bought it for plowing?'?

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1.

Question (cont.): And there Tosfos will explain how the question goes even according to the Rabanan, who argue with Rebbi Yehudah in 'ha'Mocher es ha'Sefinah' (Ibid, Daf 77b) in the case of 'If someone sells the plow he has not sold the oxen', who hold that 'The price is not a proof (of one's intentions)'.

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(d)

Answer #1: The price is of no significance in this case, since the difference between value of a jar and that of a barrel is only slight.

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(e)

Answer #2: Alternatively, it speaks where he sold him jars or barrels to the value of two hundred Zuz, in which case the amount that he paid will not prove anything.

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1.

Answer #2 (cont.): And it also speaks where the seller has money, and he cannot therefore say to the purchaser 'Take your jars (or the jar [see Mesores ha'Shas] in lieu of the money'.

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2.

Alternatively: According to the text in ha'Parah (Daf 46b) and in ha'Mocher Peiros (92b) 'I de'Lisn'hu le'Hanach Zuzi', we will have to establish the case where the purchaser still has the money of the sale, and he bought it together with Karka, or that afterwards the price of jars and barrels dropped.

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(f)

Answer #3: When the Gemara says here 'Mahu de'Seima Zil Basar Ruba, ka'Mashma lan', it means that we go after the Rov even though the price that he paid supports the Chazakah ... '.

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(g)

Implied Question: In fact, it could just as well have said the reverse - 'Mahu de'Seima Zil Basar Chazakah, ka'Mashma lan' - that we do not follow the Chazakah, only the Rov, there where the price supports the Rov ...

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(h)

Answer: Only, because it is evident from the Mishnah that it is coming to teach us that we do not follow the Rov, since Kad and Chavis are one and the same.

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(i)

Conclusion: According to this, the Gemara goes better according to Rav than according to Shmuel ...

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1.

Reason: ... seeing as it teaches us that we only follow the Rov where the price supports the Muchzak, and not in a case where it doesn't.

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5)

TOSFOS DH KA MASHMA LAN DE'EIN HOLCHIN BE'MAMON ACHAR HA'ROV

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(Summary: Tosfos explains why we cannot learn Mamon from Nefashos.)

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(a)

Question: Why do we not follow the Rov? Let us learn it from a Kal va'Chomer from Dinei Nefashos, as the Gemara says in the first Perek of Sanhedrin (Daf 3b) 'And Rebbi Yashiyah learns it from a Kal va'Chomer from Dinei Nefashos; 'If by Dinei Nefashos, which are strict, the Torah says "Follow the Rov", how much more so Dinei Mamonos!'

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1.

Question (cont.): ... and we even follow the Rov by an invisible Rov, as the Gemara says at the beginning of 'Sorer u'Moreh' (Sanhedrin, Daf 69a).

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(b)

Answer: It is different there regarding Dayanim, seeing as the minority is considered as if it didn't exist, and one cannot apply the S'vara 'Place the money in the possession of the owner, since Beis-Din is taking it away from him.

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1.

Answer (cont.): Whereas with regard to other money, where there is a minority together with the Chazakah, we do not follow the Rov.

6)

TOSFOS DH HACHI GARSINAN AMAI PATUR IBA'I LEIH LE'IYUNI

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(Summary: Tosfos elaborates on the issue, resolving it with Sugyos that we learned in the second Perek.)

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(a)

Refuted Question: The Gemara does not ask why he is Chayav damages if the person is injured, since he should have looked where he was going ...

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1.

Refutation: ... because, as Tosfos explained above (on Daf 23a DH 've'Lechayav') - 'A person needs to take care not to damage more than he does not to be damaged'.

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(b)

Implied Question: Nor can one apply here the principle 'Kol ha'Meshaneh, u'Ba acher ve'Shinah bo, Patur' (above, Daf 20, & 24a) ...

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(c)

Answer: ... because we do say this in connection with Adam.

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(d)

Implied Question: And the reason that we said earlier (on Daf 22a) that if the storekeeper leaves his lamp outside, the owner of the camel is Patur, and we do not say that he should have looked where he was going ...

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(e)

Answer: ... it is because we only say that he should look where he is going with regard to the area where he actually walks.

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(f)

Question: Rava's statement earlier (Daf 24b) 'You have permission to walk over me' ...

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1.

Question (cont.): ... Why is that, seeing as an animal too, must look where it is going, as is evident in 'ha'Parah' (later, on Daf 52b), where it states that if it is a normal ox by day, he (the owner of the pit) is Patur'?

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(g)

Refuted Answer: And we cannot answer that it speak where it fills the entire width of the street, leaving no space to pass other than over its body ...

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(h)

Refutation: ... because in that case, one would also be allowed to kick it.

7)

TOSFOS DH U'SHEMUEL AMAR BA'AFEILAH SHANU

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(Summary: Tosfos reconciles Shmuel here with the Sugya on Daf 29b, and then elaborates on the issue of Niskal, before differentiating between Oneis that is like Geneivah and Oneis that is like Aveidah.)

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(a)

Implied Question: When they argue later (on Daf 29a) as to whether Niskal is Poshe'a or not ...

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(b)

Answer: ... that speaks about someone who trips by himself, and not because something caused him to do so; whereas here, where he tripped because of an obstacle, and where he cannot be expected to have looked where he was going, he is considered an Oneis.

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(c)

Implied Question: Despite the fact that earlier (on Daf 26b) based on the Pasuk "Petza Tachas Patza" the Gemara includes Oneis like Ratzon with regard to Adam ha'Mazik ...

...

(d)

Answer: ... the Pasuk does not include a complete Oneis ...

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1.

Source #1: ...as we see in the Yerushalmi (Perek 2, Halachah 8) - which exempts the person who lay down to sleep first in the event that he wounds the person who lay down next to him (See Hagahos ve'Tziyunim).

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2.

Source #2: Similarly, in 'ha'Gozel Basra' (later, Daf 112a) where their father left them a borrowed cow, and where, thinking that it belonged to him, they Shechted and ate it, and the Gemara rules there that they are obligated to pay the value of the Basar at a cheap rate, since they benefited from it; whereas if they damaged it, they are Patur.

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3.

Source #3: And the Mishnah too (later, on Daf 32a) states in a case where the owner of the barrel was in front and the owner of the beam behind him, that in the event that the former stopped (without warning) and the barrel is broken by the beam, the latter is Patur.

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(e)

Oneis Like Geneivah and Aveidah: Seemingly we can extrapolate that Adam ha'Mazik is Patur when it is akin to Geneivah ...

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(f)

Source: Like the Beraisa in Perek ha'Umnin (Bava Metzi'a, Daf 82b and Tosfos there DH 've'Savar) in the case where someone transports a barrel from one location to another and it breaks, where Rebbi Yehudah rules that a Shomer Chinam swears and a Shomer Sachar must pay.

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1.

Source (cont.): ... Now, since he obligates a Shomer Sachar and exempts a Shomer Chinam, and does not obligate the latter because of Adam ha'Mazik, we see that Oneis by Adam ha'Mazik which is akin to Geneivah, is Patur, and Rebbi Yehudah compares Niskal to Geneivah.

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(g)

Oneis Like Aveidah: On the other hand, it would seem that Oneis, which is comparable to Aveidah, which in turn, is closer to negligence (as the Gemara says in Bava Metzi'a, Daf 94b) 'Geneivah is closer to Oneis and Aveidah, to Peshi'ah) by Adam ha'Mazik is Chayav ...

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1.

Reason: ... since it impossible to say that one is only Chayav for Peshi'ah alone.

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(h)

Proof: And so it is implied earlier (on Amud Alef) where the Gemara declares Chayav someone who falls off a roof in a storm wind, even though a Shomer Chinam under the same circumstances is Patur ...

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1.

Source: ... as the Gemara states at the end of 'Arba'ah va'Chamishah (later on Daf 45a) in the case of four Shomrim who stand in for the owner, each of whom is Chayav to pay for the ox, with the exception of the Shomer Chinam.

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2.

Source (cont.): ... and the Gemara establishes it where they guarded the ox inadequately, in which case the Shomer Chinam's obligation is covered, but that of the others is not.

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3.

Proof (cont.): And it cites Rebbi Yehudah, who holds that by a Mu'ad, an inadequate guarding will suffice - such as a door that can stand up to a regular wind but not to a storm wind.

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4.

Proof (concl.): ... So we see that, even though this will suffice by a Shomer Chinam, it will not suffice by Adam ha'Mazik ...

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(i)

Reason: ... and that is because it is comparable to Aveidah, whereas Niskal is comparable to Geneivah, and Adam ha'Mazik is therefore Patur.

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(j)

Proof: And this is also evident in Perek ha'Gozel Eitzim (later, on Daf 99b & 100a) in the case of a professional butcher who spoilt the Shechitah, where, according to the opinion that exempts someone who Shechts free of charge, from the Beraisa which states 'Nasan Beheimah le'Tabach ve'Navlah, Chayav, Mipnei she'Hu ke'Nosei Sachar' ...

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1.

Proof (cont.): ... from which we see that the Makshan thought that even free of charge he is Chayav, like a Shomer Sachar, who is Chayav for Aveidah.

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(k)

Conclusion: ... and the Gemara counters 'Say "Because he is a Shomer Sachar" '. Therefore for payment, he is Chayav, and free of charge, he is Patur, because it is akin to Geneivah (See Tosfos, Bava Metzi'a 82b DH 've'Savar' and Bava Basra 93b DH 'Chayav').

8)

TOSFOS DH L'FI SHE'EIN DARKAN SHEL B'NEI ADAM LEHISBONEN BI'DERACHIM

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(Summary: Tosfos reconciles this with a ruling in Perek Shor she'Nagach es ha'Parah.)

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(a)

Implied Question: And the reason that the Tana learns later (on Daf 52b) 'Shor ba'Yom, Patur' ...

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(b)

Answer: ... is because an ox automatically looks downwards, and he therefore needs to watch where he is going more than a man.

9)

TOSFOS DH HAREI AMRU LI'REKUVAH SAHELOSHAH

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(Summary: Tosfos cites two conflicting ways of explaining this ruling.)

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(a)

Explanation #1: Some commentaries establish this in connection with a poor person, but others maintain that it all depends on the one who shamed and the one who has been shamed.

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(b)

Explanation #2: The Ri however, explains that it is speaking about the greatest person in Yisrael ...

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1.

Proof: ... similar to the case in the Mishnah in ha'Chovel (later, on Daf 90a) - 'If he slapped him, he must pay him two hundred Zuz', which the Gemara establishes (later on Daf 91a) with regard to the greatest person in Yisrael.

10)

TOSFOS DH K'NASA KAAGBIS BE'BAVEL

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(Summary: Tosfos clarifies the question.)

...

(a)

Clarification: It is not a real K'nas, only it has the Din of a K'nas ...

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1.

Source: ... as the Gemara states in 'ha'Chovel' (later, Daf 84b) 'When it concerns something that does not involve a loss of money, we do not perform their Shelichus' (to claim in Bavel on behalf of the Beis-Din of Semuchin in Eretz Yisrael).

11)

TOSFOS DH ELA SH'VOAR ES SHINAV

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(Summary: Tosfos establishes the case.)

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(a)

Clarification: It speaks where there is no loss, seeing as it forbids him to enter without permission.