1)

UNNOTICEABLE DAMAGE (cont.)

(a)

Question: Why didn't Rav explain like Shmuel?

(b)

Answer: Mixing wine is just like mixing Peros with Terumah. The Mishnah would not teach this case twice.

1.

Shmuel holds that we can not derive one fine from another. Each must be taught by itself.

(c)

Question: Rav holds that we can derive fines from one another. Why must the Mishnah teach these three cases?

(d)

Answer: We cannot learn mixing Terumah with Chulin from being Metamei:

1.

If (the case is) he was Metamei Terumah, he renders it totally inedible. We could not learn to mixing Terumah and Chulin (the mixture is permitted to a Kohen);

2.

If he was Metamei Chulin, perhaps we were more stringent there, because it is forbidden to be Metamei Chulin in Eretz Yisrael;

3.

We could not learn the fine for being Metamei from that for mixing Terumah and Chulin, for the latter is more common;

4.

From these two fines, we could not learn about Menasech. One might have thought that he is exempt because he is Chayav Misah. The Mishnah teaches that this is not so, for R. Yirmeyah's reason.

(e)

(R. Avin's father): At first, they taught about (liability of) one who was Metamei or Menasech (another's Peros or wine, b'Mezid). Later, they taught about even one who mixes with Terumah.

(f)

Question: Why must all these cases be taught?

(g)

Answer: One is not Chayav Misah for being Metamei, so we could not learn to Menasech (one might have thought that he is exempt from paying because he is Chayav Misah);

1.

We could not learn from Menasech, which renders the wine worthless, to being Metamei, in which case the Peros retains some value;

2.

We could not learn from these two cases, in which there is a large loss (it cannot be eaten), to the case of mixing Terumah and Chulin, which causes only a small loss.

2)

DOES THE TORAH OBLIGATE PAYMENT FOR UNNOTICEABLE DAMAGE?

(a)

(Chizkiyah): Mid'Oraisa, one is obligated whether he caused unnoticeable damage b'Shogeg or b'Mezid. The Torah considers it damage;

1.

It was a Rabbinical enactment to exempt one who damaged b'Shogeg, in order that he will tell the victim.

(b)

Question: If so, the same enactment should apply to one who damaged b'Mezid!

(c)

Answer: If he damaged b'Mezid, surely he will tell him. His whole purpose was to cause him a loss!

(d)

(R. Yochanan): Mid'Oraisa, one is exempt whether he caused unnoticeable damage b'Shogeg or b'Mezid. The Torah does not consider it to be damage;

1.

It was a Rabbinical enactment to obligate one who damaged b'Mezid, to deter people from being Metamei each other's Peros.

(e)

(Mishnah): If a Kohen was Mefagel (intended to eat or offer a Korban in a forbidden time or place, which disqualifies the Korban) b'Mezid, he must pay.

(f)

(Beraisa): This is an enactment for Tikun ha'Olam. (The following questions are against Chazakah.)

(g)

Question: If unnoticeable damage is considered damage, the Beraisa should teach that b'Shogeg he is exempt, due to an enactment for Tikun ha'Olam!

(h)

Answer: This is what the Beraisa means! If he was Mezid, he is liable. If he was Shogeg, he is exempt. This is an enactment for Tikun ha'Olam.

(i)

Question (R. Elazar - Beraisa): If one used Mei Chatas (water on which ashes of the red heifer were put) or a Parah Adumah itself (thereby disqualifying them), he is exempt b'Yedei Adam (Beis Din does not make him pay), but he is liable b'Yedei Shamayim (at the hands of Heaven).

1.

If unnoticeable damage is considered damage, he should be liable b'Yedei Adam!

(j)

Answer (R. Elazar): The case is, he brought a Parah Adumah into the pen so it should nurse and thresh, or used the water. (It is disqualified only due to his intent. Beis Din cannot make someone pay for damage due to intent.)

(k)

Question: Rava taught that if one used Mei Chatas to weigh something, the water is still valid!

53b----------------------------------------53b

(l)

Answer #1: Rava discusses weighing something against the water (e.g. on the other side of a balance scale). R. Elazar discusses when the water itself was used (e.g. meat was 'weighed' by placing it in a full Kli of water and measuring how much spilled out).

(m)

Objection: If an action was done with the water itself, if unnoticeable damage is considered damage, he should be liable b'Yedei Adam!

(n)

Answer #2: In both cases, he weighed against the water. The water is disqualified only if he took his mind off of guarding it.

(o)

Question (Rav Papa - Mishnah): In the following cases, a thief may return the stolen object and need not compensate for the loss:

1.

He stole a coin, and it became disqualified; he stole Terumah, and it became Teme'ah; he stole Chametz, and Pesach came (forbidding benefit from it).

2.

If unnoticeable damage is considered damage, since he is a thief, he should need to compensate for the loss!

(p)

Chizkiyah is refuted. (Really, we will shows that Tana'im argue about this. The Gemara says that he is refuted because the Halachah does not follow him.)

3)

FINING UNINTENTIONAL DUE TO INTENTIONAL

(a)

Suggestion: Tana'im argue about unnoticeable damage.

1.

(Beraisa - R. Meir): If Reuven made Shimon's Peros Tamei, or mixed Shimon's Peros with Terumah, or was Menasech, whether he did this b'Mezid or not, he must pay;

2.

R. Yehudah says, if he did this b'Shogeg, he is exempt. If he was Mezid, he must pay.

3.

Suggestion: R. Meir holds that unnoticeable damage is considered damage, and R. Yehudah holds that it is not.

(b)

Rejection: (Rav Nachman bar Yitzchak): No, all hold that unnoticeable damage is not considered damage. R. Meir holds that we fine one who damaged b'Shogeg due to one who damages b'Mezid (lest one say that he was Shogeg). R. Yehudah does not make such a fine.

(c)

Contradiction: R. Meir and R. Yehudah both hold just the opposite!

1.

(Beraisa - R. Meir): If one cooked on Shabbos b'Shogeg, he may eat it. If he was Mezid, he may not eat it;

2.

R. Yehudah says, if he was Shogeg, he may eat it after Shabbos. If he was Mezid, he may never eat it;

3.

R. Yochanan ha'Sandlar says, if he was Shogeg, after Shabbos others may eat it, but he may not. If he was Mezid, even others may never eat it.

(d)

Answer (part 1): R. Meir does not contradict himself. He fines Shogeg due to Mezid regarding mid'Rabanan Isurim, but not regarding Torah Isurim.

1.

Question: Menasech is a Torah Isur, and R. Meir fines!

2.

Answer: This is an exception. He fines it due to the severity of idolatry.

(e)

Answer (part 2): R. Yehudah does not contradict himself. He fines Shogeg due to Mezid regarding mid'Oraisan Isurim, but not regarding mid'Rabanan Isurim.

1.

Question: Menasech is mid'Oraisa, and R. Yehudah does not fine!

2.

Answer: This is an exception. He need not fine it, because people refrain from this anyway because of the severity of idolatry.

(f)

Contradiction: Elsewhere, R. Meir fines Shogeg due to Mezid regarding mid'Oraisa laws (and R. Yehudah does not)!

1.

(Beraisa - R. Meir): If one planted on Shabbos b'Shogeg, he may let it grow. If he was Mezid, he must uproot it;

i.

If he planted in Shemitah, whether he was Shogeg or Mezid he must uproot it.

2.

R. Yehudah says, if he planted in Shemitah b'Shogeg, he may let it grow. If he was Mezid, he must uproot it;

i.

If he planted on Shabbos, whether he was Shogeg or Mezid, he must uproot it.

(g)

Counter-question: In that Beraisa itself, R. Meir (and R. Yehudah) are inconsistent. Shabbos and Shemitah are both mid'Oraisa!

(h)

Answer #1 (for R. Meir - Beraisa - R. Meir): One who planted in Shemitah must uproot it, because Yisre'elim count the years of Shemitah. (When people see him redeem the fruit (it has Kedushas Revai) in the fourth year, they will know that the tree was planted in Shemitah, and they will assume that this is permitted);

1.

There is no such concern regarding Shabbos, so he may let the tree grow.

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