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1) UNOBSERVABLE DAMAGE

(a) (Mishnah): Reuven made Shimon's produce Tamei, or mixed Shimon's produce with Terumah, or Nisech (rendered Shimon's wine a libation to idolatry) - if he did this unintentionally, he is exempt; intentionally, he must pay.
(b) (Gemara - Rav): The case of Menasech is understood simply, he poured the wine as a libation to idolatry.
(c) (Shmuel): No, he mixed Shimon's wine with wine which was a libation to idolatry.

1. Question: Why didn't Shmuel explain as Rav?
2. Answer: Shmuel holds, in such a case, Reuven would be exempt (since at the time he damages, he is liable to death for serving idolatry).

i. Rav holds as R. Yirmeyah, who says that Reuven acquired (responsibility for) Shimon's wine when he picked it up; he is not liable to death until he pours it to the idolatry.

3. Question: Why didn't Rav explain as Shmuel?
4. Answer: Mixing wine is just as mixing produce with Terumah, the Mishnah would not teach this case twice.
5. Shmuel holds that we can not derive one fine from another, each must be taught by itself.

(d) Question: Rav holds that we can derive fines from one another - why must the Mishnah teach these 3 cases?
(e) Answer: We cannot learn mixing Terumah with Chulin from making Tamei as we explain:

1. If the case is making Terumah Tamei, he renders it totally worthless, we could not learn to mixing Terumah and Chulin (the mixture is permitted to a Kohen);
2. If it speaks of making Chulin Tamei, perhaps we were more stringent there, because it is forbidden to make Chulin Tamei in Eretz Yisrael;
3. We cannot learn the fine for making Tamei from that for mixing Terumah and Chulin, for the latter is more common;
4. From these 2 fines, we could not learn pouring wine as a libation - one might have thought, he is exempt because he is liable to death - the Mishnah much teach, this is not so, as R. Yirmeyah taught.

(f) (R. Avin's father): At first, they used to say that one who makes another's produce Tamei, or prohibits it as a libation to idolatry, he must pay; later, they said, even one that mixes it with Terumah.
(g) Question: Why must all these cases be taught?
(h) Answer: One is not liable to be killed for making produce Tamei, so we could not learn to pouring wine as a libation (one might have thought, he is exempt from paying because he is liable to death).

1. We can not learn from pouring wine as a libation, which renders the wine worthless, to making produce Tamei, in which case the produce retains value.
2. We could not learn from these 2 cases, in which there is a large loss, to the case of mixing Terumah and Chulin, which only causes a small loss.

(a) (Chizkiyah): mid'Oraisa, one is obligated whether he caused unobservable damage unintentionally or intentionally - the Torah considers it damage.

1. It was a Rabbinical enactment to exempt one who damaged unintentionally, in order that he will tell the victim.
2. Question: If so, the same enactment should apply to one who intentionally damaged!
3. Answer: If he intentionally damaged, certainly he will tell him - his whole purpose was to cause him a loss!

(b) (R. Yochanan): mid'Oraisa, one is exempt whether he caused unobservable damage unintentionally or intentionally - the Torah does not consider it to be damage.

1. It was a Rabbinical enactment to obligate one who damaged intentionally, in order that people will not make each other's produce Tamei, knowing that they will not have to pay.

(c) (Mishnah): Kohanim that had intention to eat sacrifices in a forbidden time or place (thereby invalidating the sacrifices) - if they intentionally did this, they are obligated to pay.

1. (Beraisa): This is an enactment to fix the world.
2. Question: If unobservable damage is considered damage - the Beraisa should say, if they did so unintentionally, they are exempt, because of an enactment to fix the world!
3. Answer: That is the intention of the Beraisa! It says, when they did this intentionally, they are obligated; if unintentionally, they are exempt, as an enactment to fix the world.

(d) Question (R. Elazar - Beraisa): One who uses water sanctified with ashes of the red heifer or a red heifer itself (thereby disqualifying them) - Beis Din cannot make him pay, but Heaven holds him responsible to pay.

1. Question: If unobservable damage is considered damage - Beis Din should be able to force him to pay!

(e) Answer (R. Elazar): The case of the red heifer is that he entered it into the pen so it should nurse and thresh; the case of the water is, he used them for weighing. (They are only disqualified because of his intention; Beis Din cannot make someone pay for damage dependent on intention.)
(f) Question: But Rava taught, if one used water of the red heifer for weighing, it remains valid!

(g) Answer #1: Rava speaks of weighing against the water (e.g. on the other side of a balance scale); R. Elazar's case is when the water itself was used (e.g. meat was weighed by placing it in the water and measuring the displacement).

1. Objection: If an action was done with the water itself, if unobservable damage is considered damage - Beis Din should be able to force him to pay!

(h) Answer #2: In both cases, he weighed against the water. The water is only disqualified if he took his mind off of guarding it.
(i) Question (Rav Papa - Mishnah): A man stole a coin, and it became disqualified; or, he stole Terumah, and it became Teme'ah; or, he stole Chametz, and Pesach came (forbidding benefit from the Chametz) - he may return the stolen item, and need not compensate for the loss.

1. If unobservable damage is considered damage - since he is a thief, he should have to compensate for the loss!

i. Chizkiyah is refuted.

(a) Suggestion: Tana'im argue on unobservable damage.

1. (Mishnah - R. Meir): Reuven made Shimon's produce Tamei, or mixed Shimon's produce with Terumah, or Nisech - whether he did this intentionally or not, he must pay;
2. R. Yehudah says, if he did this unintentionally, he is exempt; intentionally, he must pay.
3. Suggestion: R. Meir holds that unobservable damage is considered damage, R. Yehudah holds that it is not.

(b) Rejection: (Rav Nachman bar Yitzchak): No, all hold that unobservable damage is not considered damage. R. Meir holds that we fine one who damaged unintentionally on account of one who damages intentionally; R. Yehudah does not make such a fine.
(c) Contradiction: But R. Meir and R. Yehudah both hold just the opposite!

1. (Beraisa - R. Meir): One who cooks on Shabbos - if this was unintentional, he may eat the food; if it was intentional, he may not;
2. R. Yehudah says, if this was unintentional, he may eat it after Shabbos; if it was intentional, he may never eat it;
3. R. Yochanan ha'Sandlar says, if this was unintentional, others may eat the food after Shabbos, he may not; if it was intentional, no one may ever eat the food.

(d) Answer (Part 1): R. Meir does not contradict himself - he only fines unintentional on account of intentional by mid'Rabanan prohibitions, not by Torah prohibitions.

1. Question: But Menasech is a Torah prohibition, and R. Meir makes this fine!
2. This is an exception, he fines it because of the severity of idolatry.

(e) Answer (Part 2): R. Yehudah does not contradict himself - he only fines unintentional on account of intentional by mid'Oraisa prohibitions, not by mid'Rabanan prohibitions.

1. Question: But Menasech is mid'Oraisa, and R. Yehudah does not fine!
2. This is an exception - he need not fine it, because people refrain from this anyway because of the severity of idolatry.

(f) Contradiction: Elsewhere, we see that R. Meir fines unintentional on account of intentionally by mid'Oraisa laws (and R. Yehudah does not)!

1. (Beraisa - R. Meir): One who plants on Shabbos - if this was unintentional, he may let it grow; if he intentionally transgressed, he must uproot it;

i. If he planted in Shemitah, whether it was intentional or not he must uproot it.

2. R. Yehudah says, if this was unintentional, he may let it grow; if he intentionally transgressed, he must uproot it;

i. If he planted on Shabbos, whether it was intentional or not 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 (Beraisa - R. Meir): Regarding Shemitah he must uproot it, because Yisraelim count the years of Shemitah (and when they see him redeem the fruit in the 4th year, they will know that the tree was planted in Shemitah, and they will assume we may plant in Shemitah);

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

(i) Another answer: Yisraelim are suspected to transgress Shemitah, but not to transgress Shabbos.

1. Question: Why is the second answer needed?
2. Answer: One might have thought, sometimes the 30th day before Shemitah is Shabbos, and people will remember that a tree was planted on that day (in order that the 30 days should count as the first of the years of Orlah) - we hear, Yisrael are not suspected to transgresses Shabbos, so we are not concerned for this.

(j) Answer (regarding R. Yehudah): In R. Yehudah's area, people were very stringent regarding Shemitah (and we are not concerned that they will transgress).

1. A man in R. Yehudah's area was insulted - he retorted by saying, 'At least I don't eat (forbidden) fruits of Shemitah as you do'.