Clarification - be'Sha'as Nefilah: Because, according to Rebbi Meir, who considers him negligent, he is Chayav ...

Clarification (cont.): ... as long as did not have time to remove them, which he calls 'Sha'as Nefilah'.

Clarification - le'Achar Nefilah: Whereas after Nefilah they argue with regard to declaring his Nezikin Hefker' (See Mesores ha'Shas) - even after Nefilas Peshi'ah - where for example, he broke it deliberately.

Clarification - le'Achar Nefilah (cont.): The Rabanan, who declare him Patur, hold that the Torah only obligates a Bor that has an owner, where for example, one is Mafkir his R'shus, but not his pit, or where he digs a pit in his R'shus right next to the R'shus ha'Rabim.

Proof #1: ... and this is implied by the Lashon 'Mar Savar Mafkir Nezakav Chayav, u'Mar Savar Mafkir Nezakav Patur', implying that they are arguing over all cases of Mafkir Nezakav - even after Nefilas Peshi'ah.

Proof #2: Moreover, the Gemara will shortly ask how 'Miskaven' is applicable to 'Mafkir Nezakav', why can one not establish it by where he deliberately broke it, just as the Gemara explained with regard to 'Sha'as Nefilah'?

Refuted Explanation: Abaye did not want to establish their Machlokes of after Nefilah by 'Niskal Poshe'a' - where, according to Rebbi Meir, who holds that he is Poshe'a, he will be Chayav since he is Mafkir Nezakav le'Achar Nefilas Poshe'a, whereas according to the Rabanan, who holds that he is not Poshe'a, he will be Patur since it is Mafkir Nezakav le'Achar Nefilas Oneis - as Rebbi Yochanan learns later ...

Refutation: ... since it is evident from the Mishnah that they are arguing over two separate issues, and that would be, not two, but one issue, since they are both based on the same reason.

First 'u'Modim': And now the two times u'Modim' mentioned in the Beraisa fit in nicely - one is in connection with Sha'as Nefilah (See Mesores ha'Shas), by which the Chachamim concede to Rebbi Meir by 'Avno, Sakino u'Masa'o de'Naflu be'Ru'ach Metzuyah' where he is Chayav. Even though he did not have time to remove them ...

First 'u'Modim' (cont.): But by a Ru'ach she'Einah Metzuyah he would be Patur, even if he did not declare them Hefker, since they do not become spoilt when they fall ...

First 'u'Modim' (concl.): ... and he would be Patur because he did not have time to remove them, because if he had, he would be Chayav even in the case of a Ru'ach she'Einah Metzuyah ...

Reason: ... because, since he did not declare them Hefker, the onus remains on him to clear them away, as the Gemara will say shortly.

Chidush: Even if someone else placed them there ...

Proof #1: ... as the Gemara says in ha'Parah (later, Daf 47b & 48a) 'The owner of the ox is Chayav for the damages of the Chatzer, whereas the owner of the Chatzer is Chayav for the damages of the pit'.

Proof #2: And in our Sugya too, the Gemara says in the case where one turns over the dung less than three Tefachim, that if he intends to acquire it, he is Chayav ...

Proof #2 (cont.): Because, even though he did not dig the current pit, since it has become his, the onus lies on him to remove it.

Second 'u'Modim': Whereas the other 'u'Modim' refers to their Machlokes of 'le'Achar Nefilah' ...

Rebbi Meir Concedes: 'And Rebbi Meir concedes to the Chachamim in a case where someone is taking jars up on to the roof, and they are blown down by a storm-wind, that he is Patur', even if he had time to remove them ...

Rebbi Meir Concedes: ... since it is a case of 'Mafkir Nezakav le'Achar Nefilas Oneis', and he can claim that he did not dig that pit, since it was made be'Oneis.

Conclusion: And that explains why the Tana mentions 'jars' - because they tend to break when they fall, and min ha'S'tam, the owner declares them Hefker.

Question: How can Abaye extrapolate from the fact that the Tana says 'Tarti' that they argue after Nefilas Peshi'ah, since even if they only argue over whether Niskal is Poshe'a or not, the Tana would need to say 'Tarti' ...

Question (cont.): ... to avoid saying that Rebbi Meir is Mechayev specifically be'Sha'as Nefilah, since Niskal is Poshe'a, and the damaging article still belongs to him ...

Question (concl.): But after Nefilah, where he has already declared it Hefker, Rebbi Meir will declare him Patur, even though he was Poshe'a? ...

Precedent: ... like the opinion that declares Patur Bor bi'Reshus ha'Rabim (later 49b).

Answer: If not to teach us that Rebbi Yehudah argues with Rebbi Meir in this point, it would not be necessary to mention it, since the Mishnah specifically states later (on Daf 50b) 'Bor bi'Reshus ha'Rabaim Chayav'.

Question #1: Why can one not also extrapolate from the Beraisa that it is speaking about two cases ...

Proof #1: ... because, since it mentions that he did not remove it and that he did not stand it up, it implies that it is (also) speaking after Nefilah?

Proof #2: Furthermore, if it speaks exclusively be'Sha'as Nefilah, then why would he be Chayav be'Dinei Shamayim according to the Rabanan, who hold that Niskal is an Oneis?

Proof #3: And they must also argue be'Sha'as Nefilah, seeing as it mentions 'Modim Chachamim be'Avno, Sakino u'Masa'o' - which can only refer to Sha'as Nefilah ...

Proof #3 (cont.): Because if they only argue le'Achar Nefilah about Mafkir Nezakav, then, even if we establish it where he declared his stone, his knife or his load Hefker, the Beraisa will not work out ...

Proof #3 (concl.): ... since, if they agree by a regular wind that one is Chayav and by a storm-wind, that one is Patur, then their is no Machlokes!

Answer: From the Beraisa one cannot deduce anything ...

Answer (cont.): Since we can say that they argue both be'Sha'as Nefilah and le'Achar Nefilah, but based on the same reason, as Tosfos explained earlier (DH 'P'ligi').

Answer (cont.): ... and the Tana mentions 'Avno, Sakino u'Masa'o ... ' in one case, and 'Kankanim' in the other ...

Answer concl.): Because, on the one hand, it is normal for a person not to worry about his stone ... falling in a regular wind, whilst on the other hand, he will place his jars in a location where they will not fall in a regular wind.

Implied Question: The Tana might just as well have learned the other way round ...

Answer #1: ... and the reason that it learns the way that it does is because S'tam shards of broken earthenware a person declares Hefker, as is evident in the case of the Kankanim, whereas one is not so quickly Mafkir water.

Answer #2: Furthermore, Rav establishes the water in the Mishnah where he did not declare it Hefker.

Clarification: And when do they argue where they did not declare it Hefker" specifically be'Sha'as Nefilah, since after Nefilah, Rebbi Yehudah concedes that the onus lies on him to remove it

Reason: ... seeing as a. it belong to him and b. he has time to remove it.

Clarification (cont.): But with regard to the Machlokes of le'Achar Machlokes, regarding 'Mafkir Nezakav', it does not speak exclusively le'Achar Nefilah, but even le'Achar Nefilah where he had time to remove it, Rebbi Yehudah nevertheless declares him Patur, seeing as it is a Bor which does not have an owner ...

Clarification (concl.): Whereas Rebbi Meir declares him Chayav even be'Sha'as Nefilah, since he holds a. 'Niskal Poshe'a Hu' and b. Mafkir Nezakav, Chayav.

Clarification: ... They argue in a case where the owner was Mafkir the carcass after it fell bi'Peshi'ah - such as where he led it to a location where there was reason to suspect that it would fall.

Clarification (cont.): But what is the Machloke be'Sha'as Nefilah, that they should argue in a case that is similar to that which they argue by Niskal?

Question: Why does the Gemara not establish their Machlokes of Sha'as Nefilah with regard to 'Kado' and that of Achar Nefilah with regard to 'Gamlo'?

Precedent: In the same way as it establishes the Mishnah - that he slipped in the water whilst he was falling or he hurt himself on the shards of earthenware after he fell.

Answer #1: Firstly, because of earthenware a person tends to declare S'tam shards Hefker, but not a carcass.

Answer #2: And secondly, since the Tana says 've'Lo Silkah', it implies that as far as the jar is concerned too, he had time to remove it, in which case, had we established the case of 'Kado' be'Sha'as Nefilah, then 'Kado' would be speaking in both cases (be'Sha'as Nefilah and le'Achar Nefilah), and since 'Kado' is speaking in both cases, so is 'Gamlo'.

Clarification: If one is Mafkir one's Nezikin after Nefilas Peshi'ah, how can the Tana say "Divrei ha'Kol Patur', seeing as when Rebbi Meir declares him Chayav, it is clearly even after he declared it Hefker ...

Reason: ... because if he did not, the Rabanan would not declare him Patur, seeing as the onus lies on him to clear it away?

Refuted Answer: The Gemara could have refuted the question in that the Rabanan only declare him Patur if it is an Oneis, but Chayav if it is after a Nefilas Peshi'ah ...

Refutation: ... only then, Rebbi Yochanan, who will shortly establish the Machlokes after a Nefilas Oneis, would not disagree with Rebbi Elazar in any issue ...

Refutation (cont.): Whereas the Lashon implies that he is coming to argue with him.

Alternative question: The Gemara could have asked from the Beraisa itself - 'Since when it fell he was Patur, seeing as it was a Nefilas Oneis ...

Alternative question (cont.): ... If so, Rebbi Meir is Mechayav even after Nefilas Oneis, In that case, how can the Beraisa say that Rebbi Meir concedes in the case of someone who takes jars up on to the roof (that he is Patur)?, seeing as he rules Chayav even after Nefilas Oneis.?

Refuted Answer: Nor can we answer that it speaks where they damaged whilst they were falling ...

Refutation: ,,, because then, why does the Tana mention jars at all? All he needed to say was that 'Rebbi Meir concedes that (if it damages) whilst it is falling, he is Patur, seeing as it is an Oneis'.

Implied Question: The Gemara does not want to say the opposite - that they are arguing according to Rebbi Meir, and that the one who says Patur will say to you that Rebbi Meir can only hold Chayav because he was Poshe'a, whereas Rebi Yochanan and Rebbi Elazar are arguing by Mafkir Nezakav of Oneis.

Answer: Since the Gemara knew traditionally that they are arguing over Mafkir Nezakav of Peshi'ah.

Retraction: The Gemara does not remain with this suggestion.

Implied Question: And the reason that the Gemara does not query the current suggestion from Rebbi Elazar earlier (on Amud Alef) is ...

Answer: ... because one cannot prove from the words of Rebbi Elazar alone that the Rabanan declare Patur 'Mafkir Nezakav' even after Nefilas Peshi'ah, only from the fact that he argues with Rebbi Yochanan, as Tosfos explained above (at the end of Amud Alef).

Question: It is however, a Kashya on Rebbi Yochanan (whom we currently think holds Patur) - Why does the Gemara not ask from what he says earlier, that Mafkir Nezakav S'tam is Chayav according to the Rabanan?

Answer: Because he does not say so explicitly, and we only extrapolate it from the Kashya that the Gemara asked from Rebbi Yochanan on Rebbi Yochanan.

Refuted Proof: One cannot extrapolate from here that Hagbahah does not require three Tefachim - that when one has Kavanah, one can acquire with Hagbahah of less than three Tefachim ...

Refutation #1: ... since it is different here, seeing as one can acquire Hefker even by merely looking at it ...

Refutation #2: ... or because the dung was placed in his Keilim, in which case they acquire on his behalf.

Refutation #3: Alternatively, it speaks where he picked it up in his hand, and since it is in his hand, he will acquire it even if he lifts it less than three Tefachim.

Proof: And so the Gemara says at the beginning of 'Eilu Na'aros' (Kesuvos, Daf 31a).

Implied Question: And when the Gemara says in Perek Chalon (Eruvin, Daf 79b & 80a) in connection with a barrel of 'Shitufei Mavo'os' - that one needs to pick it up one Tefach' ...

Answer: ... Shitufei Mavo'os is different, inasmuch as it is de'Rabanan.

Proof: The Gemara there is not coming to teach us the Din of Hagbahah in other areas (only regarding Shitufei Mavo'os).

Implied Question: The Gemara nevertheless finds it necessary to explain 'Because it is not the way of people to scratch themselves against walls' (even though the pit is in his R'shus) ...

Answer: ... in order to explain the Mishnah even according to the opinion that is Mechayev Bor bi'Reshuso.

Clarification: Perhaps Rebbi Yochanan holds that Bor bi'Reshuso is also Chayav ...

Support: ... since there is such an opinion in Perek ha'Parah (later on Daf 50a).