Seeking Ferret

Quick sprint to the end of the first Perek.

Daf 4

We started with the Mishna saying there are 4 Avot of Nezikin, but now the Gemara cites a Baraisa in the name of R' Oshaya that there are actually 13 Avot- the four we mentioned, plus several kinds of bailment, plus some other kinds of damage a person causes. Later we get Rabbi Hiyya's list of twenty four types of Avot. The Gemara goes through some possibilities but basically says that the Mishna's 4 are the most classic categories of damages that meet the Mishna's definition- it is in their nature to cause damage, the owner of the property is responsible for restitution, and restitution in land must come from the highest quality land. And these other lists may involve what we would call damages in some way, but don't involve all of the same basic properties. We are still in an introductory mode, the Mishna is throwing out these big conceptual tools to help us prepare to dig down into the cases.

Daf 5

Amid some boring stuff, start of a persistent question in the Gemara- what payments represent mamon- monetary restitution- and what payments represent k'nos- monetary penalties? There are lots of differences in the law between the two, and there are going to be lots of places where it's unclear which is which, because they occupy a sort of borderline.

Daf 6

The Gemara returns to the four Avot- Ox, Pit, ???Other Living Damage???, and Fire, and demonstrates that each has unique halachot that distinguishes them from the others, so that the Mishna needed to list each separately, because while perhaps they did not need to have those names, the Mishna needed four paradigmatic categories to catch all kinds of classic nezikin.

At the end of the daf, start of a long detour into the question of, when you owe a debt (whether because of a Damage or because of some other reason) and your creditors have a lien on your land, what part of your land do they get. All of the answers the Gemara discusses are default answers- this is the way you assume the agreement works in a case where there is no contract spelling out specific collateral on a loan. That's precisely what you want in the case of nezikin, because in most scenarios of nezikin there won't be any pre-agreement between parties on how a debt will be paid, nobody anticipated that your ox might gore my ox, but since these laws also cover debts incurred in the normal course of business I do want to note that you can contract out of most if not all of this. This is a large part of what modern bankruptcy court and law does- in the case of a company dealing with resolving its debts, there will be specific contract terms associated with each bond spelling out who has rights to be the first creditor paid, who has the rights to be the second creditor paid, etc, and who has the rights to which particular properties.

But there is weirdness in the contrast. In the case of Nezikin, if you repay in land, it must be from your highest quality land ("meitav"). In an uncollaterized loan, if you repay in land, technically by halacha you could repay from your lowest quality land, but in order to incentivize lenders the Rabbanim enacted a takanah that you repay from your most medium quality land. So a lot of the halacha is not relevent to nezikin even though it's ostensibly a discussion of nezikin. Well, it's all civil law, eh?

If a creditor comes to you with a lien on your land, but after the lien existed but before the creditor came, you'd sold your most medium quality land, the creditor can go to your buyer and claim the land from them, because the lien transfers. But maybe the takanah doesn't transfer, so the buyer could instead give the creditor from their lowest quality land instead? The answer is a lot more complicated than that, and has fascinating logic, but I don't feel like working through the case here.

Daf 7

Continuation of the discussion of recovery of debts from land. The Gemara brings a text discussing when a person is considered 'poor' because there are limitations on how much you're allowed to collect from a poor person. But if a person is not poor, but they lack liquid assets and cannot repay their debt without selling illiquid assets at a loss, what do they do? Generally, the answer is you can let them pay with their illiquid assets so they can be sold later without forcing them to take a loss, or if possible, let them wait until a time when their asset is more liquid. The Rabbis want fair restitution to happen but not if it's going to just be punitively unfair to the debtor.

Daf 8

Still talking about recovery of debts from different kinds of land. Here we get the takanah I mentioned earlier, and the idea of liens transferring but maybe the takanah not transferring.

Daf 9

A bunch of inheritance cases where a man who died had two sons who inherit equally, but they don't necessarily get equivalent inheritances, just equivalent value. So maybe one son gets all the land, and the other son gets all the money, or maybe one son gets the house and the other son gets the farmland. Different asset classes have different discharge of debts with death, so one son might end up getting screwed-a creditor can come in and claim land owed in repayment of the dead man's debt, but he can't seize money once it's been inherited because money is fungible and you can't have a lien on money. So if a creditor seizes land from the son who inherited land, and the other son is just sitting happy with his money, the Gemara says the son who's flush needs to split his cash with his brother, because they both inherited the estate equally and that means they both owed an equal share of their father's debt that was settled. But there are lots of exceptions to this, because one or both of the sons can stipulate in various ways that save them from the obligations of equalizing the debt. For example, if the son who took the cash explicitly did so because he didn't want to be involved with any creditors or liens, maybe he could disclaim his responsibility to make his brother whole. Apparently this works because taking money assumes different kinds of risk, like nobody can burgle a plot of land but they can burgle a pile of gold. So since each brother is taking on different risks, they can agree that they are only assuming their own risks and not their brothers. But by default, they are jointly responsible for the nondischargeable debts of the estate, even if they receive different assets.

Daf 10

Comparative chumras- how is the law of Shor more strict than the law of Bor? I think my favorite is the case of Eish vs Bor- if you give a minor care of a pit, and someone is injured, you're chayiv, because your original construction of the pit created the hazard and giving an irresponsible person charge of the pit doesn't absolve you of that responsibility. But if you give a minor care of a fire, and the fire spreads, you're patur because the nature of the kind of fire the Gemara is envisioning is such that by its nature it will blow out or burn out on its own over time, and the only reason the fire spread is because the minor did something unexpectedly irresponsible on their own to stoke the fire, something you could not have predicted the minor would do. I find this a little baffling. Has the Gemara ever met children?

Daf 11

How to make kinyan on an animal: If the animal is small, you pick it up. If the animal is big (presumably too big to pick up), you walk it along for a reasonable distance. Rabbi Shimon says you still need to pick up the animal to make kinyan even if it's too big. Not sure how that works.

Daf 12

Some interesting questions about hekdesh. If your ox gores an ox that had been consecrated to the Beis Hamikdash, there's no owner to pay restitution to other than God, so there's no civil damages. Fine. You might think that you would need to replace the animal's place in the Temple service but no. There are more liminal cases where the animal had been intended to be consecrated but all the steps of consecration hadn't been carried out, and so ownership is unclear. And liminal cases of sacrifices where you eat the meat or retain some other part of the sacrifice, so maybe you retain some kind of partial ownership even after consecration. Drilling down through this helps clarify what it means to 'own' hekdesh, what rights you still retain and what rights are ceded to God.

But what I kept get stuck on is the fascinating intersection between the idea of 'benefit' in property law, and the idea of benefit attached to offering a sacrifice. If your ox gores an ox, you owe someone the value of the damage, out of your ox, but if you then consecrate the ox before the judgement is made by the beis din, the damaged party cannot claim the damage anymore because you are no longer getting temporal benefit from the ox. But you are still getting a benefit from the ox, in that whatever spiritual value the sacrifice has to you theoretically still accrues to you. Likely the idea is that Hakadosh Baruch Hu will apportion reward for the sacrifice in a True and Just way, so the beis din doesn't need to consider this kind of benefit in its judgement.

Daf 13

You're only responsible for damage caused by a Jew to a Jew. I think this is just a limitation of the jurisdiction of the beis din, if your ox gores the ox of a non-Jew, you don't go Tough luck, goy, I don't owe you shit. What happens is the goy takes you to goy court and you get everything sorted out there, so the beis din disclaims jurisdiction for the case so that there's no double restitution happening.

Daf 14

If my ox damages your ox on my property, I'm patur because what was your ox doing on my property? If my ox damages your own on your property, I'm chayiv because what was my ox doing on your property? If my ox damages your property in a reshut harabim, I'm chayiv if it's keren but patur if it's shen or regel. Discussion of damage that happens in a place where there is shared ownership, or shared access but it's not a reshut harabim, occupies most of the page. It matters specifically what kind of access, different rights to access lead to different obligations in nezikin, and always you go by closest analogy to the main categories of ownership- my land, your land, reshut harabim.

Daf 15

So far we've used muad to refer to specifically an ox that has gored three times before, so that you should be aware that your ox is a dangerous ox. But here the Mishna extends the idea of muad to the other Avot by using the language of muad to explain why with bor and shein and regel you pay full damage even from the first time. Because these cases are analogous to an ox that has gored before, you should know that by the nature of a pit or a hungry animal, they will cause damage if they are not guarded. I like this conception of muad as a key to nezikin as a whole.

Daf 16

The Mishna teaches that five minim of animals are considered muad by default. Lion, bear, the things you'd expect. If you own an animal like that and it injures someone, you're on the hook for full damage even the first time. One of the animal names, the bardelas, is obscure, the Gemara debates its identification. One path of identification is wild. It's identified with the tzavua, and the Gemara then cites a baraisa on the life cycle of the male tzavua: After 7 years, the male tzavua turns into a bat. After another 7 seven years, the bat turns into a different kind of bat. After another seven years, the different bat turns into a nettle plant. After another seven years, the nettle plant turns into a thorn plant. After a final seven years, the thorn plant turns into a demon (shed).

I don't know what to do with this baraisa. Normally the weird demon stuff in the Gemara, I can give you a sort of plausible rationalist explanation of how the Gemara was doing empiricism with limited information, but here I've got nothing. Life cycle of a demon, eh?

Daf 17

Aggadah on the funeral of King Chizkiyahu, famously righteous in the sense that everyone around him was anti-Torah and he was at least publicly pro-Torah. Very much seems to have been a B'dorotav situation, but anyway the Gemara brings a medrash that he received some sort of exceptional praise at his funeral because of his righteousness, but whatever praise it was, it seems to have been adopted as more or less standard for the funerals of gedolei Torah in the times of the Amoraim, so the Amoraim try to establish that in some way King Chizkiyahu's kavod was greater than the kavod paid to Chachamim in the time of the Amoraim.