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1) LIABILITY IN JOINT PROPERTY

(a) Question: What is the case that watchmen are liable?

1. Suggestion: If the lender's animal damaged the borrower's animal - the borrower would have had to pay if it damaged another animal, will the lender pay him for damage to the borrower's animal?!

(b) Answer #1: Rather, the borrower's animal damaged the lender's animal.
(c) Objection: Had the lender's animal been damaged by someone else's animal, the borrower would have had to pay full damage - if the borrower's animal did the damage, will he only have to pay half-damage?!
(d) Answer #2: Really the lender's animal damaged the borrower's animal; the case is, the borrower only accepted to guard the lender's animal from being damaged, not from damaging.
(e) Question: But the end of the Beraisa says, if the wall broke down at night, or robbers made an opening and the animal went out and damaged - the watchman is exempt;

1. (Inference): Had the wall broken down by day, he would be liable - but he did not accept to guard it from damaging!

(f) Answer: The Beraisa says: if the watchman accepted to guard the animal from damaging, he is liable; if the wall broke down at night, or robbers made an opening and the animal went out and damaged - the watchman is exempt.
(g) Question: But Rav Yosef's Beraisa says that one is liable for Shen and Regel in joint property or an inn!

1. This refutes R. Elazar!

(h) Answer: Tana'im argue on this.

1. (Beraisa - R. Shimon ben Elazar): There are 4 general rules in damages: in the property of (only) the damagee - one is liable in all;
2. In the property of (only) the damager - one is exempt for everything;
3. In the property of the damagee and damager, such as a joint yard or a valley - one is exempt for Shen and Regel, and liable for Keren and its derivatives;

i. A Tam pays half-damage, a Mu'ad pays full damage.

4. In property not of the damagee and damager, such a yard that is not of both of them or a valley - one is liable for Shen and Regel;

i. For Keren and its derivatives, a Tam pays half-damage, a Mu'ad pays full damage.

5. Contradiction: This Beraisa says, in a joint yard or a valley, one is exempt for Shen and Regel - the previous Beraisa said, one is liable!
6. (It must be, this Tana holds as R. Elazar.)
7. Answer: This Beraisa is when they both have rights to use the yard for fruit and animals;

i. Rav Yosef's Beraisa is when they are only allowed to use it for fruits - regarding Shen, it is as the premises of the damagee.

8. Support: Presumably, the joint yard is as the case it is listed with - in Rav Yosef's Beraisa, an inn (where people do not bring animals); in the latter Beraisa, a valley (where people bring animals).
9. Question (R. Zeira): If both may put fruit in the yard, this is not considered "It will consume in another's field"!
10. Answer (Abaye): Since he may not bring animals there, it is considered another's field.

(i) Suggestion (R. Acha mi'Difti): Just as the Tana'im don't argue, let us say also the Amora'im don't argue!
(j) (Ravina): Correct!

1. Alternatively, we can say that they argue: R. Elazar holds as R. Zeira (if the damager can bring fruit there, it is not called another's field), Rav Chisda holds as Abaye.

(a) (Beraisa - R. Shimon ben Elazar): There are 4 general rules in damages: in the property of (only) the damagee - one is liable in all.

1. It says in all, not for all - meaning, full damage.
2. This is as R. Tarfon, who says that Keren pays full damage in the premises of the damagee.

(b) Question (end of the Beraisa): In property not of the damagee and damager, such a yard that is not of both of them, or a valley - one is liable for Shen and Regel.

1. Question: What does it mean 'property not of the damagee and damager'?

i. Suggestion: If it belongs to someone else - the Torah only obligated when "It will consume in another's field", i.e. the fruit of the field's owner!

2. Answer: Rather, it is not of both of them, only of 1 (the damagee) - and it continues, for Keren and its derivatives, a Tam pays half-damage, a Mu'ad pays full damage.

i. This is as Chachamim, who say that Keren pays half-damage in the premises of the damagee!

3. (Summation of question): Can the beginning of the Beraisa be as R. Tarfon, and the end as Chachamim?!

(c) Answer #1 (Shmuel): Yes!
(d) Answer #2 (Ravina): The whole Beraisa is as R. Tarfon;

1. The end of the Beraisa says, it is 'property not of the damagee and damager' (rather, only of the damagee) regarding fruit; 2. Both are allowed to bring their animals in.

i. Regarding Shen, it is the property of the damagee; regarding Keren, it is as a public domain.

(e) Question: If so, R. Shimon ben Elazar only gave 3 general rules, not 4 (since the last rule is already known from the previous rules)!
(f) Answer (Rav Nachman bar Yitzchak): He gives 3 rules in 4 places.

3) CONDITIONS TO PAY DAMAGES

(a) (Mishnah): An evaluation of money, something worth money, in front of Beis Din, and according to witnesses (the entire Mishnah will be explained below);
(b) Free men, members of the covenant, and women are included in damages;

1. The damagee and damager are involved in payments.

(c) (Gemara) Question: What does it mean 'An evaluation of money'?
(d) Answer (Rav Yehudah): The evaluation (of damage) is made in money.
(e) Our Mishnah teaches as the following Beraisa.

1. (Beraisa): A cow damaged and was damaged by a cloak - we do not say, the cow is taken to compensate for damage to the cloak - rather, we evaluate the damages.

(f) (Mishnah): Something worth money.
(g) (Beraisa): Something worth money - this teaches that Beis Din only judges the case if the damager has land (explained below);

1. If the damagee grabbed Metaltelim, Beis Din collects the damages from them.

(h) Question: How do we hear from 'Something worth money' that Beis Din only judges the case if the damager has land?
(i) Answer #1 (Rabah bar Ula): Something worth all the money you pay for it, i.e. there is no law of overcharging, i.e. land.

1. Objection: There is no law of overcharging by slaves and documents also!

(j) Answer #2 (Rabah bar Ula): Rather, something that can be acquired through money.

1. Objection: Slaves and documents can also be acquired through money!

(k) Answer #3 (Rav Ashi): Something worth money - not money itself;

1. Everything except land is as money, for it can be taken elsewhere and sold.

(l) Contradiction (Rav Yehudah bar Chinena): Our Mishnah teaches 'Something worth money' - Beis Din only judges the case if the damager has land;

1. (Beraisa): "He will return" - this teaches, (anything) worth money may be given, even bran.

(m) Answer (Rav Huna brei d'Rav Yehoshua): We only collect from orphans if they inherited land. (From the damager himself, we collect from anything.)
(n) Question: But the end of the Beraisa says, if the damagee grabbed Metaltelim, Beis Din collects the damages from them - if he grabbed from orphans, why does he collect?
(o) Answer: (As Rava said elsewhere -) the case is, he grabbed Metaltelim in the life of the damager.
(p) (Mishnah): In front of Beis Din...
(q) This excludes one who sold his property before going to Beis Din.
(r) Question: May we infer that if a borrower sold his property before going to Beis Din, Beis Din will not collect from the sold property?!
(s) Correction: Rather, the Mishnah comes to say that only a Beis Din of experts may judge damages.