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1) HOW SHMUEL EXPLAINS THE MISHNAH

(a) (Mishnah): The leniency of an ox (Keren), which has no benefit to the damager, is unlike that of Mav'eh (Shen), which has benefit to the damager;

1. The leniency of Shen, which has no intention to damage, is unlike that of Keren, which has intention to damage.
2. Question: We should be able to learn 1 from the other from a Kal va'Chomer!

i. One is liable for Shen, which has no intention to damage - all the more so, one should be liable for Keren, which has intention to damage!

3. Answer: We cannot learn from a Kal va'Chomer - one might have thought, just as (the master of) slaves is exempt even though they intended to damage, also Keren.
4. Objection (Rav Ashi): We would not think so - the only reason one is exempt for slaves is lest they get angry at the master, and decide to cause tremendous damage to trouble him - this reason does not apply to animals!
5. Correction: Rather, the leniency of Keren, which has intention to damage, is unlike that of Shen, which has no intention to damage;

i. The leniency of Shen, in which there is benefit to the damager, is unlike that of Keren, which has no benefit to the damager.

(b) Question: Did the Tana teach Keren and Shen, and omit Regel?!
(c) Answer: The end of the Mishnah, 'If they damaged, the damager must pay from highest quality land' comes to include Regel.
(d) Objection: Regel should have been taught explicitly!
(e) Answer #2 (to question 1:l - Rava): 'Ox' teaches Regel; Mav'eh teaches Shen.

1. The leniency of Regel, which is common, is unlike that of Shen, which is not common;

i. The leniency of Shen, in which there is benefit to the damager, is unlike that of Regel, which has no benefit to the damager.

(f) Question: Did the Tana teach Regel and Shen, and omit Keren?!
(g) Answer: The end of the Mishnah, 'If they damaged, the damager must pay from highest quality land' comes to include Keren.
(h) Objection: Keren should have been taught explicitly!
(i) Answer: The Tana only lists explicitly things that are Mu'ad (pay full damage) from the beginning.
(j) Question: Why didn't Shmuel learn as Rav?
(k) Answer: Since a later Mishnah (15B) teaches 'a Mu'ad ox, an ox that damages on the premises of the victim, and man', this implies that our Mishnah does not speak of man.
(l) Question: Why doesn't our Mishnah speak of man?
(m) Answer: Our Mishnah only speaks of damages done by a man's property, not by a man himself.
(n) Question: How does Rav explain why the later Mishnah also mentions man?
(o) Answer: That Mishnah lists all Mu'ad damagers.

(a) Question: How does Rav explain our Mishnah (the part saying why an ox and Mav'eh needed to be written in the Torah)?
(b) Answer: The leniency of an ox, which (obligates its owner to) pay Kofer (ransom when it kills someone), is unlike that of man, who does not pay Kofer;

1. The leniency of man, who pays 4 additional damages (pain, medical expenses, temporary unemployment, and embarrassment) is unlike that of an ox, that is exempt from these.

(c) Question: The end of the Mishnah says 'The common side of all the damagers: their nature is to damage' - is that really true of an ox?!
(d) Answer: That refers to a Mu'ad.
(e) Question: Is it really the nature of a Mu'ad to damage?
(f) Answer: Yes!
(g) Question: Is it really the nature of a man to damage?
(h) Answer: This refers to a sleeping man.
(i) Question: Is it really the nature of a sleeping man to damage?
(j) Answer: Yes, because he retracts and stretches out his limbs.
(k) Question: The Mishnah continues, 'You are obligated to guard them' - regarding man, it should say 'he must guard himself'!;

1. Counter-question: Karna taught, there are 4 damagers, man is 1 of them - how does he explain why the Mishnah didn't say 'Man must guard himself'?
2. Answer (R. Avahu): The Mishnah should say (regarding man), 'man must guard himself'.

(l) Answer: Rav will also say, the Mishnah should say 'man must guard himself'.
(m) Question (Rav Mari): We should say that Mav'eh is water - "As water Tivah (bubbles) because of fire"!
(n) Answer: The singular conjugation "Tiv'eh" shows that the verb refers to fire (which makes the water bubble), not water.
(o) Question (Rav Zvid): We should say that Mav'eh is fire - "As fire Tiv'eh (makes bubble) water"!
(p) Answer: This cannot be - our Mishnah lists Mav'eh and Hev'er (fire).

1. Suggestion: Perhaps Hev'er explains what Mav'eh is!
2. Objection: If so, the Mishnah only listed 3 damagers (and it says there are 4)!
3. Suggestion: Perhaps it counts an ox as 2 (Regel and Shen, which are Mu'ad from the beginning).
4. Rejection: The Mishnah says, 'The leniency of an ox and Mav'eh, which are alive, is unlike that of fire';

i. Fire is not alive! Also - it says, Mav'eh is not as fire!

(a) (R. Oshiyah): There are 13 primary payments of damage: a free watchman, a borrower, a paid watchman, and one renting an object; Nezek (lifelong loss in earning potential), pain, medical expenses, temporary unemployment, and embarrassment; and the 4 of our Mishnah.
(b) Question: Why did our Tana list only 4?
(c) Answer #1 (according to Shmuel): Our Tana only lists damage done by a man's money, not by man himself.
(d) Answer #2 (according to Rav): Our Tana listed man, and this includes all damages of man.
(e) Question: Why did R. Oshiyah list separately these damages of man?
(f) Answer: He distinguishes man that damages an animal from man that damages a man.
(g) Question: If so, he should also list separately an animal that damages man, and an animal that damages an animal!
(h) Answer: No - when man damages man, he pays 4 more damages than when he damages an animal, there is reason to list them separately;

1. An animal always pays only Nezek!

(i) Question: R. Oshiyah listed the 4 watchman, and they are not cases of man damaging man!
(j) Answer: He listed them because they are damage that happens by itself - the Mishnah only taught damage (of a man) that he actively does.
(k) (R, Chiya): There are 24 primary payments of damage: the double payment of a thief, the payment of 4 or 5 times (the value of an animal sold or slaughtered after it was stolen), a thief, a Gazlan (open robber), Edim Zomemim (witnesses that testify about something they were not present to see);

1. A rapist or enticer (of a virgin Na'arah), Motzi Shem Ra (one who falsely claims that the Na'arah he married was not a virgin);
2. One who makes Tamei, one who mixes Terumah with Chulin, one who pours libations to idolatry, and the 13 of R. Oshiyah.