Bava Kamma - Daf 6
- בור המתגלגל ברגלי אדם וברגלי בהמה
The Gemara asks what case is included by the Mishnah’s צד השוה between multiple avos, but is not identical to any one av. Four answers are given. Rava says: לאתויי בור המתגלגל ברגלי אדם וברגלי בהמה – it is to include a “pit” (i.e., a stationary object) which is rolled by men’s feet or animals’ feet. The Gemara asks that if he was mafkir this object (and the damaging obstacle is ownerless), it seems identical to bor. Even if he was not mafkir it, Shmuel holds (as opposed to Rav) that one’s item left in a public area and damages is derived from bor. Why is a צד השוה necessary? The Gemara answers that the case is where he was mafkir it, yet an obstacle which was rolled to another place is not identical to bor: מה לבור שכן מעשיו גרמו לו – how can it be compared to bor, where his actions directly caused [the damage] by digging the pit? תאמר בהני שאין מעשיו גרמו לו – Will you say the same for these obstacles, where his actions did not directly cause [the damage], rather it was the people’s or animals’ feet, which moved the obstacle to where it eventually inflicted damage. “Shor” proves that even such damages (which came through his animal’s actions, not his) are still liable.
- הכותל והאילן שנפלו לרה"ר והזיקו
Ravina says the צד השוה comes to include the case of a Mishnah, which teaches: הכותל והאילן שנפלו לרה"ר והזיקו – A wall or tree which fell into the public domain and damaged, if he was not warned to remove it, or it fell during the time he was given to remove it, he is exempt. But if it fell after the given time period and caused damage (Tosafos explains that it damaged while it was falling), he is liable. Again, the Gemara asks that it seems identical to bor, and again explains that the case is where he was mafkir it, yet it is not identical to bor: מה לבור שכן תחילת עשייתו לנזק – how can it be compared to bor, which is prone to damage from its beginning (when it was dug)? תאמר בהני שאין תחילת עשייתן לנזק – Will you say the same for these, which were not prone to damage from their beginnings (because when the tree was planted or the wall was built, they were not liable to fall)? Shor, which is also not originally prone to damage, proves that one is even liable for such damages.
- מיטב: מחלוקת בדניזק שיימינן או בדמזיק שיימינן
It was taught in a Baraisa: מיטב שדהו ומיטב כרמו ישלם– He shall pay “his” best field or “his” best vineyard. Rebbe Yishmael holds that “his” means: מיטב שדהו של ניזק ומיטב כרמו של ניזק – the damaged party’s best field or the damaged party’s best vineyard. Rebbe Akiva says: לא בא הכתוב אלא לגבות לניזקין מן העידית – The pasuk only comes to teach to collect for those who were damaged from superior grade land. The Gemara asks that Rebbe Yishmael cannot mean that one pays higher value produce than what was eaten, or even pays the highest value produce where it is unknown what was eaten (because the rule is המוציא מחבירו עליו הראיה – one who seeks to collect payment from his fellow, the burden of proof is upon him). Therefore, it concludes that Rebbe Yishmael holds בדניזק שיימינן – we assess מיטב based on the damaged party’s properties (i.e., the responsible party must only pay from land of equal quality to the damaged party’s highest-grade property), and Rebbe Akiva holds בדמזיק שיימינן – we assess מיטב based on the damager’s properties (i.e., that he must pay with the highest-grade land he himself owns).
