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1) LIABILITY FOR DAMAGERS IN THE PUBLIC DOMAIN

(a) (Mishnah): (Reuven's flask broke; Shimon slipped on the water or was damaged by the shards - Reuven is liable;) R. Yehudah says, if he intended, he is liable.
(b) Question: What is the case of intention?
(c) Answer #1 (Rabah): Reuven intended to take the load off his shoulders.
(d) Question (Abaye): If so - R. Meir (the 1st Tana, who is more stringent) will say that Reuven is liable even in a case of Ones (beyond his control), e.g. the flask dissolved!
(e) Answer (Rabah): Yes! R. Meir says he is liable even if he is holding the handle of the vessel and the vessel dissolved!
(f) Question: But the Torah exempts a person for Ones - "You will not punish the Na'arah (that was raped)"!

1. Suggestion: Perhaps that only applies to capital punishment, but a person is liable for damages, even due to Ones.
2. Rejection (Beraisa - R. Meir): If his jug broke and he did not clear away the fragments; his camel fell, and he did not stand it up - he is liable for damage they caused;
3. Chachamim say, Beis Din does not make him pay, but Heaven holds him accountable.

i. Chachamim admit to R. Meir, if Reuven left a rock, knife or load on his roof and they fell in a normal wind and damaged, Reuven is liable.
ii. R. Meir admits to Chachamim, if he puts bottles on the roof to dry, and they fell in an abnormally strong wind, he is exempt.

4. (Abaye): R. Meir and Chachamim argue in 2 things: the time of falling, and after the time of falling:
5. For damage at the time of falling, they argue whether one who trips is negligent.

i. R. Meir says, he is negligent; Chachamim say, he is not negligent.

6. For damage after the time of falling, they argue regarding one who makes Hefker things that can damage.

i. R. Meir says, such a person is liable; Chachamim say, he is exempt.

(g) (Implied Answer #2 (to question 1:b)- Abaye: 'Intention' is when he intentionally broke the flask; unintentionally is when he tripped and it broke.)
(h) Question: How did Abaye know that (in the Beraisa) they argue in both cases?
(i) Answer: The Mishnah gives 2 cases - Shimon slipped on the water or was damaged by the shards - seemingly, these are the same!

1. Rather, it must be, slipping on the water - at the time of falling (i.e. before Reuven was able to clean up the water);
2. Being damaged by the shards - after Reuven fell and made the shards Hefker.
3. Since the Mishnah teaches these 2 different cases, presumably the Beraisa does, also.

(j) We understand, the case of the jug breaking could be either at the time of falling, or after.
(k) The case of the camel falling - we understand this case arises after falling, he made the carcass Hefker.
(l) Question: How could we say the case is at the time of falling - he is blameless, why would R. Meir obligate him to pay?!
(m) Answer #1 (Rav Acha): He led the camel where the river was overflowing, this caused it to fall.

1. Question: What is the case?

i. If there is another path - he is negligent, why do Chachamim exempt him?
ii. If there is no other path - he is Ones, why does R. Meir obligate him to pay?

(n) Answer #2: Rather, the case is that the owner tripped, and the camel tripped on the owner.
(o) (Reiteration of question 3:b (28B)): If he made the damaging things Hefker - what distinction does R. Yehudah make between intending and not intending?
(p) Answer #2 (Rav Yosef): Whether he intended that the shards should be his. (When he intended, he did not make them Hefker, and R. Yehudah agrees that he is liable.)
(q) (R. Elazar): They argue at the time of falling.
(r) Question: After the time of falling, all agree?!

1. You cannot say, they agree that he is exempt - R. Meir says that he is liable!
2. You cannot say, they agree that he is liable - Chachamim say that he is exempt!
3. Rather, R. Elazar must mean, they argue even at the time of falling - as Abaye.

2) ANOTHER EXPLANATION OF THE BERAISA

(a) (R. Yochanan): They argue after the time of falling.
(b) Rhetorical question: Can you say, at the time of falling, all agree that he is exempt?!

1. But R. Yochanan said, 'Do not say that the Mishnah (31B) is only as R. Meir, who says that one who trips is negligent' - this implies, R. Meir says that he is liable!

(c) Rhetorical question: Can you say, at the time of falling, they agree that he is liable?!

1. R. Yochanan's teaching (just quoted) implies that Chachamim say that he is exempt!

(d) Rather, Chachamim only exempt one who makes damaging items Hefker when they fell in the public domain via Ones; otherwise, he is liable.
(e) (R. Yochanan and R. Elazar): One who makes damaging items Hefker - one of these 2 Amora'im say that he is liable; the other says, he is exempt.

1. Suggestion: The one who says he is liable holds as R. Meir; the other, as Chachamim.
2. Rejection: No. Granted, only the one who says he is liable can hold as R. Meir (since R. Meir obligates even one who makes damaging items Hefker after they fell through Ones!)

i. But the one who says he is liable could hold as Chachamim.
ii. We only see that Chachamim exempt him when the damaging items fell through Ones; they could admit when there was no Ones.

(f) We may conclude that R. Elazar holds that he is liable from the following.

1. (R. Elazar, citing R. Yishmael): Two things a person does not own, but the Torah obligates him for them as if he owned them: a pit in the public domain, and Chametz from noon of Erev Pesach and onwards.

(g) Question: Did R. Elazar really say that he is liable?

1. (Mishnah): Reuven turned over dung in the public domain; Shimon was damaged by it - Reuven is liable.
2. (R. Elazar): This only applies when Reuven intended to acquire the dung; if not, he is exempt.

i. We see, R. Elazar exempts one who makes damaging items Hefker!

(h) Answer #1 (Rav Ada bar Ahavah): He returned the dung to its place.

1. (Ravina): A parable to understand Rav Ada bar Ahavah's case: this is as one who finds an open pit, covers it, and again opens it (he is exempt).

i. Objection (Mar Zutra brei d'Rav Mari): The comparison is faulty! By the pit, he never removed the damager; by the dung, he removed the damager (when it was in his shovel; when he puts it back, he (re-)creates a damager).

2. (Mar Zutra brei d'Rav Mari): A proper parable: this is as one who finds an open pit, fills it with dirt, and again digs it. (He is liable, since he created a damaging item.)

(i) Answer #2 (Rav Ashi): He did not lift the dung 3 Tefachim (so it was always a damager).
(j) Question: What forces R. Elazar to say that the Mishnah is a case when he did not lift the dung 3 Tefachim, and he is liable because he had intention to acquire it - let him say, he lifted it more than 3 Tefachim, and he is liable even if he had no intention to acquire!
(k) Answer (Rava): He saw a difficulty in the Mishnah - why did it say 'He turned over', and not 'He lifted'?

1. He concluded, 'He turned over' connotes that he did not lift it 3 Tefachim.

(a) Since R. Elazar says that he is liable, it must be that R. Yochanan holds that he is exempt.
(b) Question: But we see otherwise!

1. (Mishnah): Reuven hid a thorn or glass, or made a fence of thorns, or his wall fell in the public domain, and people were damaged by it - Reuven is liable.
2. (R. Yochanan): This is only if the fence of thorns protruded into the public domain; if it was within his property, he is exempt.
3. Suggestion: The reason he is exempt if it was within his property, is because it is as a pit within his property.
4. If so, it must be that the pit that the Torah obligates one for is in the public domain - even though the pit is Hefker!

(c) Answer: No. Really, R. Yochanan holds that one who makes his damaging items Hefker is exempt.

1. The reason he is exempt if the thorn was within his property, is as Rav Acha brei d'Rav Ika taught.
2. (Rav Acha brei d'Rav Ika): He is exempt because people do not normally scrape themselves on walls (the victim brought the damage on himself by acting abnormally).

(d) Question: Did R. Yochanan really say that one who makes his damaging items Hefker is exempt?!

1. But R. Yochanan said, the law is as an unspecified Mishnah!
2. (Mishnah): One who digs a pit in the public domain, and an ox or donkey fell in and died - he is liable.

(e) Answer: Really, R. Yochanan holds that one who makes his damaging items Hefker is liable.

1. It must be, R. Elazar holds that he is exempt.

(f) Question: But R. Elazar cited R. Yishmael to say that one is liable!
(g) Answer: R. Elazar himself holds that he is exempt.