אילימא שליש ביתו אלא מעתה אי איתרמי ליה תלתא מצותא ליתיב לכוליה ביתיה If we say it means that one should spend up to one-third of his estate to perform a mitzva, but if that is so, and if it happened to him that he became obligated in three mitzvot at the same time, should he give his entire estate away in order to fulfill those mitzvot? One is certainly not required to do so.
אלא אמר ר' זירא בהידור מצוה עד שליש במצוה Rather, what Rabbi Zeira said is that for the embellishment of the performance of a mitzva, e.g., to purchase a more beautiful item used in the performance of a mitzva, one should spend up to one-third more than the cost of the standard item used to perform the mitzva.
בעי רב אשי שליש מלגיו או שליש מלבר תיקו Rav Ashi raises a dilemma: How is this one-third calculated? Is it one-third from within, i.e., he calculates the cost of a standard item, adds one-third of that value, and spends the total on purchasing a more beautiful item; or is it one-third from without, i.e., one-third of the sum he ultimately spends should be the additional sum added in order to purchase a more beautiful item? The Gemara concludes: The dilemma shall stand unresolved.
במערבא אמרי משמיה דרבי זירא עד שליש משלו מכאן ואילך משל הקב"ה In the West, Eretz Yisrael, they say in the name of Rabbi Zeira: Of the money one spends on purchasing a more beautiful item to perform a mitzva, up to one-third more than the cost of a standard item comes from his own finances, but from this point forward, any additional sum spent on purchasing a more beautiful item comes from the largesse of the Holy One, Blessed be He, i.e., God will reimburse him for spending that additional sum.
מתני׳ כל שחבתי בשמירתו הכשרתי את נזקו הכשרתי במקצת נזקו חבתי בתשלומי נזקו כהכשר כל נזקו MISHNA: With regard to anything for which I became responsible for safeguarding it to prevent it from causing damage, if it in fact causes damage, it is considered as if I actively facilitated that damage, and accordingly I must pay for it. In any case in which I facilitated part of the damage it caused, I am liable for payments of restitution for damage it caused, as if I were the one who facilitated the entire damage it caused.
נכסים שאין בהן מעילה נכסים שהן של בני ברית נכסים המיוחדים One is liable only with regard to damage caused to property for which, were he to use it for a non-sacred purpose, he would not be liable for the misuse of consecrated property; with regard to damage caused to property that belongs to members of the covenant, i.e., Jews; and with regard to assigned property, the meaning of which the Gemara will explain.
ובכל מקום חוץ מרשות המיוחדת למזיק And one is liable for damage caused in any place except for a domain designated exclusively for the use of the one responsible for the damage.
ורשות הניזק והמזיק And one is liable for damage caused in a domain designated for the joint use of the injured party and the one liable for the damage.
כשהזיק חב המזיק לשלם תשלומי נזק במיטב הארץ When an animal or item one is responsible to safeguard causes damage, the one liable for the damage caused by insufficiently safeguarding it is obligated to pay payments of restitution for damage with his best-quality land.
גמ׳ ת"ר כל שחבתי בשמירתו הכשרתי את נזקו כיצד שור ובור שמסרן לחרש שוטה וקטן והזיקו חייב לשלם מה שאין כן באש GEMARA: The Sages taught a baraita that elucidates the mishna’s ruling: With regard to anything for which I became responsible for safeguarding it to prevent it from causing damage, if it in fact causes damage, it is considered as if I actively facilitated that damage and accordingly must pay for it. How so? In the case of an ox or a pit that one transferred to the care of a deaf-mute, an imbecile, or a minor, whose presumed limited intellectual capacity means they are deemed incapable of sufficiently safeguarding them from causing damage, and the ox or pit caused damage, the halakha is that since the owner of the ox or pit did not fulfill his duty to safeguard them, he is liable to pay for the damage, which is not so in a corresponding case where the damage is caused by a fire.
במאי עסקינן אילימא בשור קשור ובור מכוסה דכוותה גבי אש גחלת מאי שנא הכא ומאי שנא הכא The Gemara elucidates: With what are we dealing? If we say that the baraita deals with a tethered ox or a covered pit, which cannot cause damage in the manner in which the owner left them, then the case in the corresponding situation of fire, where he is not liable, is where one transferred an ember to one of limited halakhic competence, which, had it been left alone, would not have erupted into a fire and caused damage. This cannot be correct, because if so, what is different here in the case of an ox and a pit, where one is liable, and what is different there in the case of the fire, that exempts him from liability? There seems to be no reason to differentiate between them.
אלא בשור מותר ובור מגולה דכוותה גבי אש שלהבת מה שאין כן באש דפטור והא אמר ריש לקיש משמיה דחזקיה לא שנו אלא שמסר לו גחלת וליבה אבל שלהבת חייב מ"ט דהא ברי הזיקא Rather, the baraita must be dealing with an untethered ox or an exposed pit, which can cause damage in the manner in which the owner left them. If so, then the case in the corresponding situation of fire, where he is not liable, is where one transferred a flame to one of limited halakhic competence, which can also cause damage in this form. The Gemara rejects this suggestion: But if so, why does the baraita state: Which is not so in the case of damage caused by a fire, as one is exempt from paying damages? But this is untenable, as didn’t Reish Lakish say in the name of Ḥizkiyya: They taught that one is exempt from damage caused by a fire only in a case where he transferred an ember to one of limited halakhic competence who then fanned it into a flame. But if he transferred a flame to him, the one who transferred the flame to him is liable for any damage caused. What is the reason? He is responsible because the capacity for it to cause damage is certain.
לעולם בשור קשור ובור מכוסה ודכוותה גבי אש גחלת ודקא אמרת מאי שנא הכא ומ"ש הכא The Gemara returns to its initial suggestion: Actually, the ruling of the baraita is stated with regard to a tethered ox or a covered pit, and the case in the corresponding situation of fire, where he is not liable, is where one transferred an ember to one of limited halakhic competence. And with regard to that which you said in order to reject this: What is different here in the case of an ox and a pit that causes him to be liable and what is different there in the case of the fire, that exempts him from liability? Seemingly, in all these cases the item was not able to cause damage in its current form, so he is exempt from liability.
שור דרכיה לנתוקי בור דרכיה לנתורי גחלת כמה דשביק לה מעמיא עמיא ואזלא The Gemara explains: You could answer as follows: The typical manner of an ox is to free itself from being tethered and the typical manner of a pit is for its cover to become dislodged. Therefore, as it is negligent to transfer an ox or pit to someone who is incapable of sufficiently safeguarding them, the one who transferred the ox or flame to them is liable. By contrast, with regard to an ember, as long as he leaves it alone it progressively dims, and the only way in which it will cause damage is if someone else actively fans it into a flame; therefore, he is not liable.
ולר' יוחנן דאמר אפילו מסר לו שלהבת נמי פטור דכוותה הכא בשור מותר ובור מגולה מ"ש הכא ומ"ש הכא The Gemara asks: And according to Rabbi Yoḥanan, who says: Even if the halakha is that if one transferred a flame to one of limited halakhic competence he is exempt, it is possible to say that the case in the corresponding situation here in the first clause of the baraita is stated with regard to an untethered ox or an exposed pit. The Gemara asks: But if so, what is different here in the case of an ox and a pit that causes him to be liable and what is different there in the case of the fire that exempts him from liability? Seemingly, in all these cases the item that was transferred is capable of causing damage in its current form, so he would be expected to be liable.
התם צבתא דחרש קא גרים הכא לא צבתא דחרש קא גרים The Gemara explains: There, in the case of fire, ultimately the deaf-mute’s handling [tzevata] of the flame causes the damage, as if it were not for him moving the flame no damage would have been caused. Here, in the case of the ox and the pit, the deaf-mute’s handling of them does not cause the damage. Rather, the damage was caused even though they remained in exactly the same dangerous state in which the one who had transferred them to the deaf-mute did so. Therefore, the damage is a result of that person’s negligence, and he is liable.
ת"ר חומר בשור מבבור חומר בבור מבשור § The Sages taught: There is a stringency that applies to the category of Ox as opposed to the category of Pit, and conversely, there is a stringency that applies to Pit as opposed to Ox.
חומר בשור מבבור שהשור משלם את הכופר וחייב בשלשים של עבד נגמר דינו אסור בהנאה ודרכו לילך ולהזיק מה שאין כן בבור חומר בבור מבשור שהבור תחילת עשייתו לנזק ומועד מתחילתו מה שאין כן בשור The baraita elucidates: The stringency that applies to Ox as opposed to Pit is that if the ox kills a Jew, the owner is liable to pay a ransom to the victim’s heirs. And for killing a slave the owner of the ox is liable to pay thirty sela to the slave’s master. Furthermore, in such a case, once the court hears the evidence and the verdict of the ox is complete and the court rules that the ox must be killed, it is prohibited to derive any benefit from the ox. And from then, it is considered that the typical manner of the ox is to proceed and cause damage. All of this is not so in the case of a pit that caused damage. And the stringency, i.e., the reason to be stringent, that applies to Pit as opposed to Ox is that with regard to the primary category of Pit, its initial formation, e.g., its digging, is done in a manner that can result in damage, and the one responsible for it is considered forewarned from its inception. This is not so with regard to Ox.