Bava Kama - 2:A - .ב

Transcript

Ovos Nezikin. Four avos of Nezikin, ha-shor, ha-bor, ha-mav'eh, v'hahev'er. There are four categories, main categories of Nezikin. Sheitah Mekubetzes is me'orer, why does it use the lashon of Nezikin and not mazikin? It should say, Arba avos mazikin. What's arba avos Nezikin? So the first pshat the Sheitah Mekubetzes brings, that this Tanna is Yerushalmi, and mimeila, to the one who does the nezek is called nezek and not mazik. Lo tani mazikin mishum d'tani Yerushalma hu, v'lo ois ha-nezek korei nozek. Then he brings from the Meiri, that the Meiri says that we don't want to talk about the mazik, we want to talk about the hezek, because if we would talk about the mazik, then the taich is it's mashma shekavanosam l'hazik, v'eilu ein bahem shekavanosam l'hazik. Ela keren v'adam l'daaso, oy mechavez ha'adam, so not all the cases is kavanosam l'hazik. Mazikin. Is mashma the mazik, and not so much the hezek. In Hilchos mazik, not all of them, so to speak, are mazikim, because not dina kavanosam l'hazik. So we're not going to call them mazikim, but l'maaseh they're achrayi for the nezek. So therefore it says, arba avos nezikin. Could be there's a tifa lomdus here also, in the chiluk between mazikim and nezikin, and why the Mishnah dafka says nezikin. When you're chayiv for arba avos nezikin, are you chayiv because you're a mazik? Is the mazik sheboi mechayev? That's the yesod of your chiyuv? It's the shoresh of your chiyuv that you're a mazik? Or the pshat is, l'maaseh there was a hezek, and for whatever reasons, we'll soon see, you became achrayi for this hezek. We'll soon see maybe because you're a poshea, or because it's your mamon. We'll soon get to why you should be achrayi for a hezek. How do you become achrayi for a hezek? But the yesod hachiyuv doesn't have to be that you're achrayi for hezek. It could be that you're a mazik, or because you're achrayi for a hezek. Nachamo. Mishnah states, arba avos nezikin. So we're talking about the maaseh and not the oisah. And that's the Rishonim's kasha, the Shitah Mekubetzes brings down. The pashut teretz is that it's not a kasha, because nizik and mazik, it's the same thing, because Yerushalmi talks like that. Okay. The Meiri says no, that I don't want to discuss the ma'aseh. I don't want to discuss the mazik, the oseh. I want to discuss the ma'aseh, because in ma'aseh, not every time the person meant to be a mazik. Not all the cases, the four avos nezikin, is kavanaso l'hazik. So I want to talk about the nizik and not the mazik. What's the lomdus here? What's the Tifkaitn's verter? What does he mean? You could say it's stam tzach. We could say that he's trying to say to Meiri that the mechayev in Arba Avos Nezikin is not the mazik; it's the ma'aseh hezek. Since you're achrayiv for the ma'aseh hezek, so you have to pay for that hezek. But it's not the shem mazik that's mechayev that you have to pay. Mameila, the Mishnah says Arba Avos Nezikin and not Arba Avos Mazikin. We're not talking about the oseh; we're talking about the ma'aseh. The ma'aseh is the mechayev and not the fact that you're a mazik, shem mazik. This is a Brisker rav, shem mazik.

We'll have to talk it in greater length. We'll discuss it. B'stam, we'll have to give a separate shiur on it. But k'pshutoi, to answer the Rishonim's kasha in dikduk הלשון המשנה, which, you know, that's what we like to do here, is to learn the lashon haMishnah, the text. The lashon haMishnah is nezikin and not mazikin, k'menzogin, because the ikar mechayev is the nezek, not the mazik. The fact that there's a hezek, that's mechayev. Now why are you chayav in that? Because you're achrayi for this hezek. How do you become achrayi for the hezek? As the shiur progresses, we'll see that there could be two ways that you could be chayav for hezek: either because it's your mamon, so your responsibility, or because you were poshe'a in the shemirah that you had to do, which we'll soon see where it comes from, these two tzadim. It's, you do in the Acharonim, these two tzadim. We'll develop it as we develop the shiur. Al kol panim, we've established, if it's emes the way we're learning up the dikduk הלשון המשנה, that it's the ma'aseh nezek, hezek that's mechayev, not the shem mazik. So let's understand what's taka pshat in Arba Avos Nezikin, paying. What are you paying for exactly? So, skipping, I guess, the beginning of the Mishnah, all the cases which we'll get back to, but let's see the yesod of paying that's brought down at the end of the Mishnah, why we pay. Shteit in the Mishnah. Tzar ha-shovah shebahem. Can't learn out one from the other, says the Mishnah. So there's a tzar ha-shovah, shedarkan l'hazik, u'shmirasan alecha, u'k'shehizik chav ha-mazik, l'shalem tashlumi nezek b'meitav ha'aretz. Now here, rabosai, מדויק קלר in the loshon, in the taich, in the translation of the Mishnah. When we say tzar ha-shovah shebahem, shedarkan l'hazik, are these all reasons why you're chayiv? Or these are all reasons how we can make a tzar ha-shovah to learn one from the other? Are the cases, are the instances that the Mishnah brings, that the maskanas you have to pay, it's because that's the reason for paying already? Shedarkan l'hazik, shmirasan alecha, u'k'shehizik chav ha-mazik, that's the reason. Or the taich is, this is all the tzar ha-shovah, that's all. We're giving cases of tzar ha-shovah that m'meila we can learn out one from the other, but it's not the reason. These are not the reasons for paying. What's the nafka mina in how to read the Mishnah? So first of all, you have to know, u'k'shehizik chav ha-mazik, is that a continuation result of shedarkan l'hazik u'shmirasan alecha? Oy dilma, maybe no. It's three different stadim. It's three different nekudos in how their tzar ha-shovah. The tzar ha-shovah is shedarkan l'hazik. It's shmirasan alecha, and therefore the tzad hashaveh is part is uk'shehizik chaver mazik. But the k'shehizik chaver mazik isn't the pshat because of the shmirasan alecha word, the darken l'hazik. Nachamo. When you have the tzad hashaveh, so the Gemara brings actually two, which leads into a third tzad hashaveh, which is darken l'hazik, shmirasan alecha, which leads into k'shehizik chaver mazik. So these are tzad hashavos only, and these are like two, which is a third tzad hashaveh; meileh it's all one din and we can learn out one from the other. Or these are the reasons, and the result of these reasons is uk'shehizik chaver mazik. And the nafkamina would be is how to read the Mishnah when it says k'shehizik chaver mazik, and therefore do we have to stick in the word and therefore k'shehizik chaver mazik, or it's a run-on sentence, as they say, or it's a continuation. Since it's darken l'hazik, shmirasan alecha, and the next part of the tzad hashaveh is uk'shehizik chaver mazik, that becomes all the tzadim hashaveh. It has darken l'hazik, it—

Has shmirasan alecha, it has the third tzad hashava, which is, k'shehizik hava mazik. Or, since they both have these two things, darko lehazik, and also shmirasan alecha, memeila the din, the din is that you have to pay, because that's when and how you pay. That's for what you pay. You must get clearly what I'm saying, because this is mamash the yesod of Bava Kama. I mean, this is a hakdamah shiur to the yesod of Bava Kama, the first perek, mazik, nezikin, tashlumin nezikin. Like I say in the beginning, keep in mind, arba avos, it doesn't say nezikin, it says arba avos—I'm sorry, it doesn't say arba avos mazik, it says nezikin. And the taich, lechora, might be that you're chayav for the maaseh hezek, that you're achrayi for, and not for the fact that you're a mazik. Biur hadvarim, let's see the end of the Mishnah, what's taka pshat in tashlumin nezikin? It's learned out of a tzad hashava from darko lehazik, shmirasan alecha, k'shehizik hava mazik. So this is tashlumin, that's where we get payment from. So I'm asking like this: when it says darko lehazik and shmirasan alecha, these are tzad hashavos which brings the third tzad hashava, because when you tie a knot, you have to tie it on all angles. You gotta make a complete knot. So the last part of the knot is k'shehizik hava mazik. A dilma the tzad ha-shaveh is the taich. Since they have these two dinim, these two dinim are mechayev that you have to pay. If it's darken l'hazik, it's shmiraso alecha, you would have to pay. What's the nafkamina in the verter of the Mishnah, how you read the Mishnah? Is the last, ukshehizik chav hamazik, part of the tzad ha-shaveh? It reads with tzad ha-shaveh: ha-tzad ha-shaveh, this, this, and this. Darken l'hazik, one; shmiraso alecha, two; u'meileh, tzad ha-shaveh, three, kshehizik chav hamazik. Or the pshat is that the kshehizik chav hamazik is not a part of the tzad ha-shaveh, but since it has a tzad ha-shaveh, the din nosen that you have to be mechayev him to pay. It's the two tzad ha-shavos which are mechayev the third one. Or stam the tzad ha-shavos mechayev, that it should be tzad ha-shaveh in all tzadim. That's the shaylah. And this shaylah, l'churah, is taluy in noch a tifresh shaylah, even a deeper shaylah. U'shmirasan alecha. You have to watch. Now the darken l'hazik, that's a metzius. Darken l'hazik, you have to— that's what it does. It's darken l'hazik. U'shmirasan alecha, you have to watch it. Where does it say that you have to watch it behemah? Where does it come from? Vu shteit in these parshiyos that you have to watch it. What it says in these parshiyos is that in case— There is a hezek you have to pay, but it doesn't say anywhere that l'chatchila you have to watch it. You read the parshiyos, you saw them. Does it say anywhere that you have to fore- fore, what's the word I'm looking for, warn, forewarn the hezek? It doesn't say it anywhere. It says hezek, there's a hezek you have to pay. So bichlal, what's the mekor for the shmiras hanefesh? Mechtaisa. Where does it come from? Who said? Ki'ilu that's like a tzad hashaveh in the parsha. Now the emes is, this is not my shaila. Every rishon and acharon and sefer discusses this shaila. But you know I like pshat, so I'm going to gribble before we even get to all this. First I need to get the shitas, the starters. So that's the kasha, where it comes from. Now, like I say, I like pshat, so I'm not going to start right away with giving you all the mareh mekomos and all the rishonim and acharonim. I want to see what I think in the Mishnah. Tell me, is darken lehazik also said in the Torah? Or darken lehazik is a metzius? Which means the tzad hashaveh is not a tzad hashaveh in the parsha.

Darken l'hazik, not a tzad hashaveh in the dinim that we find in the parsha. Darken l'hazik is the metzius of darken l'hazik. Unless you say that since you need darken l'hazik to be chayiv, maybe it's taka one of the dinim of the parsha of mazik. Darken l'hazik is not just a metzius. That's the din of mazik. The din of hezek is telling you darken l'hazik maybe. We have halachos of keren and shor and bor. Darken l'hazik, which means if it's ein kavanaso lehazik or it's ein darken l'hazik, maybe eino chanami, it's not in the parsha. I have chatzi nezek, tzeroros. Again, I don't want to stop b'vakamah yet. I'm just trying to read. Maybe eino chanami, darken l'hazik is a din in the parsha. I'm clear, when it says the word darken l'hazik, is darken l'hazik a metzius, and that's what we have in the tzad hashaveh, or darken l'hazik is taka a din in the parsha, and therefore all the dinim of the parsha, and Shmiras haLechas is a din in the parsha, and therefore you could clarify shailos: where is the din in the parsha, Shmiras haLecha? I dilma, we come and say that there's no din of darken l'hazik. Darken l'hazik is a metzius, darken l'hazik. So me'eila Shmiras haLechas also not a mefurash din in a part of the parsha of mazik, but it's understood that it's Shmiras haLecha because if not, you'll have to pay. In having to pay, it says that you're not supposed to do that, unless you could clarify maybe you're allowed to be mazik to pay. But pashut, if you have to pay, that means that you're responsible for it. And the Shemiraso lecha is not too much more than that. Again, I'm gribbling. And you know why I'm gribbling? Because that's the ikar learning. You'll gain more from what I'm doing and from listening to where I go back and forth how to read a Mishnah than all the Torah I could start telling you that the Tur says like this, and the Rabbeinu Yonah says like this, and the Bechashmuel says like this, and the Rashash says like this, and the Kayitzurim says like this, which we'll soon do. I have no problem with all that. But let's read the Mishnah. When it says, Hatzad hashavah shebehen, does it mean that the dinim of the Mishnah, of the parshiyos, are tzad hashavah? In other words, there's a din darken l'hazik. Mimeila there's a din shemiraso lecha. Mimeila there's a din of k'shehezik chaval mazik. Efsher the taich is bichlal it's not dinim. Grada, these are not so much dinim in the parsha as much as metziusin in the maaseh mazik. This mazik had to have been what? That it's a darken l'hazik. It happens to be that you should be watching it. And ein hachi nami, it doesn't have to—we don't have to find where it says it in the parsha, din of shemiraso lecha. Efsher. And if you think I made this up, meaning avad in the Mishnah itself it's me, meaning no one's going to talk like this in the Mishnah because it's really gribbling. But you should know that Reb Leib says, or any B'shem Reb Shimon, that shemiraso lecha is a sevara grada. What do you think? You could just go and put mazik someone else's cheftzim? Chas v'shalom, you have to watch it. We live in a society where you have to make sure things don't happen bad to other people. I don't even want to discuss this, Reb Leib, b'shem Reb Shimon, so quickly now, but I'm just throwing it out, that the shemiras halachah doesn't have to be a psak din. Shemiras halachah, it's understood, and pshat is that's called mazik. You should have watched; you didn't. But does that have to be a tzad hashava with the din of the parshah? Are you with me? Even if you don't agree with me, listen to what I'm saying. I'm horving with you. Believe me, I'm horving with you. Even if you don't agree or you disagree, but there's—even if you disagree, but to disagree on something, you're disagreeing about something. I'm not stam talking shtus. You're with me. Fine. Let's chazer in the Mishnah. Shemirasan alecha. Tell me, who said? That kasha everybody asks. Everybody asks, who said? Who said shemirasan? Who said? Efsher nisht. Efsher nisht. Yeah, well, you have to pay? Yeah. I don't have to watch it, but in case something happens, I'll have to pay. Where do we get u'shemirasan alecha? So I'm telling you that be'emes you have to know what is—

K'shezeh chavs of mazik, miin bichlal? What does it mean? I'm sorry, not k'shezeh — darkei l'hazik. What does it mean? Is darkei l'hazik pshat that's one of the dinim of mazik, meaning that's one of the pratim of the parsha of mazik, that it's darkei l'hazik? When it's not darkei l'hazik, it's not the mazik of keren and shor, and we'll soon learn that not all of them are darkei l'hazik. I mean, it's darkei l'hazik, but darkei leilech l'hazik. I'm being careful because I don't want to start the Gemara yet. But al kol panim, is darkei l'hazik one of the dinim of the parsha? So then u'shmirasan alecha also becomes one of the dinim, and then becomes a shayla: where in the din in the parsha does it say u'shmirasan alecha? A dilma, darkei l'hazik is the metzius. The fact is it's a darkei l'hazik. It's not a prat in the parsha. U'shmirasan alecha doesn't have to be a prat in the parsha either. Grad is, but I mean that's the metzius. You should be watching your... It could even be a sevara, like we'll soon see from Reb Shimon. The din mazik needs that it should be darkei l'hazik. If not, there's no din mazik. What do you mean, if? It can be chayav even if it's not darkei l'hazik. What do you mean, how do you know that it has to be darkei l'hazik? If your momma does it — I mean, today in this society, it doesn't have to be darkei l'hazik to be chayav. If I break your thing and it's not a darkei l'hazik, I'm chayav. If you go to court, I'll still be chayav. It's a chiddush, what do you mean, that it has to be darkei l'hazik. Chatzi nezek could be a knas even. According to this, chatzi nezek is pashut knas. Which means if it's not a darkel hazik, you're not a mazik. I mean, what do you mean? I was mazik. So why do you need darkel hazik for? I break your window, it has to be that I'm a darkel hazik? Okay, but the truth is adam's always a muad. But if my animal today, if my dog broke—I mean, I don't have a dog, I have neighbors, but I don't have a dog—so let's say my dog went and broke a window, I'm going to be chayiv. It doesn't have to be darkel hazik. In court, I'm chayiv for it. There's a din in the parsha of mazik that it has to be darkel hazik to be a mazik. It's a very big chiddush. What does it mean? You don't know what it means? That it's normal, that it has normal tendencies to be mazik. Mazik, I don't say—you need normal tendencies. I'm chayiv. The minute I get into a hezek with you, I'm chayiv to pay for it in today's times. And even in the Gemara, chatzi nezek is knas according to many opinions. Shaalef is knas l'mamon, because it's not a darkel hazik. So when the Gemara says darkel hazik, it's one of the dinim of the parsha. Darkel hazik is a din. Shemiras haleches is another din to be a mazik. What? What do you mean if it's a sevara, it's the same thing? Yeah, so therefore you could come and say shemiras haleches. It doesn't have to say it in the parsha; it's understood that shemiras haleches. It's not a question of practically. You're asking me where in the Torah does it say it, that you could come and give this as one of the tzad hashavos, and the Torah doesn't have to say it anywhere, since I know that you have to watch your animal, unless you being mechadesh to me that you don't have to watch your animal, which I don't think anybody's asking. That's not the kashya. The kasha is not on the Mishnah, who said you have to bichlal watch your animals. The kasha is there's no shmiras halecha, a din from the pasuk, that you could come and say it's one of the tzad ha-shavos in the limud. That's where the kasha is. The kasha is not that you don't have to watch your animal. Kasha not in the metzius of shmiras halecha. Maybe you don't have to watch your animal. What, society's chaos? That's what Reb Shimon is trying to say. Shmiras halecha doesn't need a makar. So I'm trying to explain to you that with all the teirutzim, from all the acharonim, I'm not interested. I want to learn the Mishnah. I want to know, after all this, how do you learn the Mishnah? And the answer is that tzad ha-shavos means not dinim in the parsha. That's what it means. It's just more reasons, similarities. What? And this is where I'm getting to, that why you should be chayav. These are all sevaros of why you should be chayav. If it's tzad ha-shavos, so it's not sevaros to be chayav. It's tzad ha-shavos to make the limud. If these are tzad ha-shavos, pshat is dinim in the parsha, we're connecting the dots. So these are not necessarily the reasons to be chayav. It's just connecting the dots in the halachos in the parsha. So the tzad ha-shavos, the third one has to apply as well. But if it's not tzad ha-shavos in the parsha...

It's not part of the limud, but rather what is it? There are sevaros like this. So these are sevaros in what? Sevaros in why you should, you know, have to pay. That's what I call learning pshat. I just cut right through all the acharonim. You know what? This is taking all the pilpul, pages of pilpul, and bring it back to the Mishnah. I want to learn the Mishnah. I'm not interested in all this. Every tzad hashaveh could be a tzad hashaveh in limud. How do you make a limud? If it has this, and this has that, and they both have this, so therefore the parshiyos are connected. But if these are not in the parshiyos, these are not dinim in the parshiyos bichlal. These are just sevaros. So what are these sevaros in? Sevaros l'chiyuv, that's all. So then the shemirasa and the lechev becomes a sevara for chiyuv. That's right. That's right. That's right. That's right. Beautiful. Since we find that this has this, and this has this, and we see the Torah says you're chayav for it, so then we connect and say that that's the reason for the chiyuv now. You don't have to say that it's the reason for the chiyuv. It's just a reason to connect the parshiyos, that's all. So then you have to find where it's in the parshah. So then the kasha becomes, where does it say shemirasa lechev? The parshah. Okay. Shh. So we've established that first of all, it could be that it's because of the hezek and not the mazik that you're chayav, the lashon of the Mishnah, arba avos nezikin and not mazik. We've established that we can either learn that the tzad hashaveh is the reason for chiyuv, or the tzad hashaveh are the tzad hashaveh to compare the dinim. I'm able to put the din of chiyuv mamon here and there and everywhere. One of the tzad hashaveh is shebichayev. It's part of the common denominator that she should be chayev. And the third thing we've established is that shmirasan alecha might or might not be in the parsha, but it doesn't have to be the way we're learning. And it depends: if you learn the tzad hashaveh is sevara, so then it's taka not in the parshiyos. It's just a sevara to be chayev, so it doesn't have to be in the parsha. It doesn't have to say it in the parsha of mazik v'shmirasan alecha, and we could say like Reb Shimon, it's a sevara, shmirasan alecha, and hachanami. Or we have to say that it's taka a din in the parsha, in order to make it a tzad hashaveh in the limud, and there is taka becomes the Rishonim and Acharonim's kasha: where does it say it? So b'emes, there's a very interesting Tur. You'll do this later. There's a very interesting Tur. The Tur in siman shin ayin ches: Kesheim she'asur lignov v'ligzol. First halacha, reish siman shin ayin ches: Kesheim she'asur lignov v'ligzol mamon chaveiro, kach asur l'hazik mamon sheloi. Asur, yehei lashon asur. Kesheim she'asur, you're not allowed to steal, so too you're not allowed to be mazik. I'd like to also read you lashon of the Tur in Siman Shin Pei Tes. It says, the Tur, K'sheim she'asur l'adam sheyazik es chaveiro, v'im hizik chayav l'shalem, kach tzarich lishmor memono shelo yazik. So too, your mamon, you have to be careful that you don't be mazik. Lashon, k'sheim she'asur. There's an issur. This is identified in the mefarshim as issur mazik, that the Tur learns there's an issur mazik. Let me show you how in Shulchan Aruch is brought this halacha, and you'll see that the Tur was davka. In Shulchan Aruch, in Siman Shin Pei Tes, he doesn't begin with the heading, with the introduction—excuse me, not the heading, but the introduction—K'sheim she'asur l'adam sheyazik es chaveiro. He just goes straight to the halacha that kol nefesh chayah, if you're mazik, you have to pay. Nowhere does the Shulchan Aruch use the lashon asur l'hazik mamon chaveiro. I don't want to see Taf Shin Ayin Ches. Let's just double-check Shin Ayin Ches. Shin Ayin Ches. No, he does bring asur l'hazik, asur l'hazik mamon chaveiro. Yeah, but in Hil...

This Gemara, where the Tur begins, כשם שאסור לאדם שיזיק את חבירו, the Shulchan Aruch doesn't start that way. Stam, you're not allowed to be mazik. Shh, we'll do this later. There's plenty of time. I'm not saying it's the Tur, just reading a Tur, an innocent Tur. Tur says that it's asur lehazik mamon chaveiro. And in סימן שן פט, he says, כשם שאסור for you to be mazik, so too your mamon. In Shulchan Aruch, in סימן שן פט, he doesn't begin with the asur lehazik, but למעשה in סימן ח, he brings it, asur lehazik mamon chaveiro. You're not allowed to be mazik. The Rambam—I'll show you—the Rambam also discusses issur of mazik, the issur of mazik. In נזקי ממון, when the Rambam discusses the second din of the Tur about your mamon being mazik, says the Rambam, נזקי ממון פרק ה הלכה א: If a person wasn't shomer his beheima, יש רשות לבעל השדה לשחוט אותה, can go and shecht it, ואומר לבעליה, בואו ומכרו בשר שלכם, go sell your meat. Why? Why am I allowed to go kill your animal if it's going to be ro'eh in my field? מפני שעשה לאדם להזיק ולשלם מה שהזיק, asur. You see, lashon haRambam, it's an issur. So here the Rambam brings the asur. It's asur. So the Rambam is mechadesh not only it's asur. To be mazik, it's even asur to be mazik to pay. You see what the Rambam is mosif? The Torah speaks about asur l'adam l'hazik mamon chaveiro. The Torah speaks about asur l'adam shemema'ein l'hazik mamon chaveiro. The Rambam speaks even one step further: she'asur l'adam l'hazik ul'shalem mah shehizik, afilu ligrom hanezek asur, even to be gorem hezek. Meaning, grama b'nezikin is patur, and af al pi kein it's asur. This is already in the mefarshim, that you see where there's not even a chiyuv tashlumin. The chiyuv tashlumin is not even here. Still, there is an issur mazik. Rabosai, you hear the klalim. Again, the Tur, asur l'hazik mamon chaveiro. That's Shin Ayin Ches, Shin Pei Tes, asur l'mema'ein l'hazik mamon chaveiro. Rambam, in Perek Hei, Hilchos Nizkei Mamon, Halacha Aleph, asur l'adam l'hazik even l'shalem, even with the intent of paying back. What about grama, where there's no chiyuv mamon? Even that's asur, says the Rambam. Pshat, where there's no chiyuv tashlumin, no chiyuv tashlumin, still there's an issur mazik. L'chora, Tur and Rambam are saying the same thing, that there's an issur mazik. I believe that the Tur and the Rambam is kerchoch mizeh mizeh. It's completely different shitos in issur mazik. Yes, it's true, it's emes that there's an issur mazik. That's clear in the Tur. As well as in the Rambam. But the Tur's yesod of issur mazik and the Rambam's yesod of issur mazik is completely different, because the lashon of the Tur is, K'sheim she'asur lignov v'ligzol, k'sheim she'asur lignov v'ligzol mamon chaveiro, kach asur lehazik. According to the Tur, it's a gneivah dika halacha. Mazik is ganef. The Rambam doesn't speak that it's ganef. The Rambam says, She'asur l'adam lehazik u'leshalem. The issur of mazik has nothing to do with the mammon. Where the mammon is not nigea. For example, grama b'nezakin, you still have an issur. It's an issur itself. I know nobody says this, and I don't know why. I'll be honest, I don't know why. The Tur is mamash klar: K'sheim she'asur lignov v'ligzol. It's gneivah dika halacha. Mazik is a type of ganef. I mean, can you get a clearer Tur? K'sheim she'asur lignov v'ligzol. It's gneivah. The Rambam, the Rambam learns there's nothing to do with gneivah, and therefore that's why he speaks it on the—

Context where you have intent to pay the person. You have to know halacha, geneivah, and onas l'shalem. You have to know the tzadim of geneivah and that. I don't even want to get into that sugya. But I see that the Rambam brings in that context, and I see that the Rambam finishes off, afilu ligrom hanezek. You have to be gorem a nezek. Pirush, you're not a ganef, but you're now being mazik somebody. In hilchos geneivah, I might not be a ganef, felt a ma'aseh geneivah, but for mazik that's already called a mazik, because the taich, being mazik is the po'el yotzei, the result that there's a hezek because of me. And, rabosai, let's understand this. Why should it be that? Why for geneivah, for these things, you need a ma'aseh? Why for mazik is the taich, gerama b'nezakin is patur? But for mazik, that's asur. Isur mazik you still have. So you can say a me'iri, the taich, and it has a lot to do with what we spoke about till now. When you have arba avos nezikin, what is the chiyuv mamon? So I told you, either because of the hezek that you're achrayi for, or because you're a mazik. From the Rambam you see that it splits. From the Rambam you see that al tz hilchos mamon, you wouldn't be chayiv. In hilchos mamon you wouldn't be chayiv. In hilchos mazik, I would be chayiv. How do you split that? And the teretz is that you see there's two dinim. There's one din that the person is now going to be a mazik, and then there's another din that there's a hezek that you're achrayi for. What's your question? I know it's not. I'll tell you why. You give me a minute. I know I lost oilam, so that's why I'm being a little nervous here. Let's backtrack a second. I don't want to lose anybody here. The Tur is klar: asur lignov, v'ligzol, asur lehazik. It's often the Tur. You can't run from the Tur. Tur shteit klar, it's geneivah d'halachah. The Rambam—does anybody says, look, the Rambam brings the same thing. It's asur lehazik. But the Rambam למעשה never said it in the context of geneivah. As a matter of fact, if you medayek, you'll see he says it not where it's geneivah, where he's kavanaso l'shalem, and where it's grama b'nezakin patur. The hainu on the mumnus. On the mumnus, there's halachah of mazik. So what's this halachah of mazik where for mumnus you're patur, not a mazik? For ganef, you wouldn't be a ganef; for mazik, you're a mazik. Teretz is a stark. When you're ganvening, when you steal, what are you chayiv for? Is the chiyuv for the maaseh geneivah, or is the chiyuv the fact that the yenem doesn't have his money? It's l'choirah that the yenem doesn't have his money could be you need a maaseh geneivah also. But that's a chiddush. To be chayiv for geneivah, you need a maaseh geneivah. But avada, yesod ha'issur is the toitzah, the fact that the person's money is gone. What is issur mazik? Is issur mazik types that you made a hezek? What the pshat is, that the other person has hezek and you're achrayi for. So I would say that for issur mazik, the other taich is that it's a mazik. You're not allowed to be a mazik. The Torah asers you to be a mazik. There is hezek and you're achrayi. So the taich is that the hezek is not good, and you're achrayi, so that's a mamonsdike halacha. The issur could be, is an issur to be a mazik. By geneivah, what's the issur? The issur is to be a ganef. What's like a bein adam laMakom, to be a ganef. The issur is, the ta'utzah that there's a geneivah here. By issur mazik, it's very shayach that it's the issur to be a mazik, and we'll soon see where that comes from. Are you with me? You maskim? Kol rabosai. Issur mazik is identified properly and correctly from the Rishonim. It's there. Torah, shem she'asar. The Rambam, aser lehazik mamon chaveiro.

So everybody learns the Torah, the Rambam is a mazik. If you see clearly, and you tackle, like I taught you to go back to the mekor and patachter the verter, learn the words, you see it's mamash like ... two different sheets Rishonim. The Tur is learning it's a gneivah dika halachah. He says it clearly, k'sheim she'aso, like ... gneivah. The Rambam, the Rambam could be learned it's not a gneivah dika halachah, it's a mazik. And because he didn't learn it's a gneivah dika halachah, he doesn't say it in Hilchos ... lahazik. He says it in lahazik l'shalem, where you plan on paying it back. And even where ... gneivah, you're patur. For mazik you're chayav. Shailah is why should it be that way? Teretz is that gneivah is the taich, the ... You stole. Geneivah, there's dinim that you need a maaseh gneivah. Okay, you look at Reb Chaim in the sefer. It's a chiddush that in the parshah gneivah you need a maaseh gneivah. Fine. But avadeh, if you ask anybody, he'll tell you that the fact that I took the ... that's the problem, that ... doesn't have the ... The fact that he loses his ... that's where the chesaron is. Mazik. Mazik could be the taich, hen mitzad chiyuvei mamon, which comes from the fact that ... doesn't have now the ... or hen mitzad that you're not allowed to be mazik, that you, you're not allowed to be mazik. You're not allowed to be mazik mamon chaveiro. So then, in you, you're not a mazik. We'll get to that in a few minutes. I'll show you the mekoros. What I do have from this is that could be the Tur learns it's a geneivah d'halachah, and the Rambam learns it's not a geneivah d'halachah. It's a geder d'halachah. The gavra is not a mazik. There's an issur mazik; you're not a mazik. So even if it's l'shalem, and even where it's grama, you're still not allowed to do it. What's the nafka mina? There's a big klal in the Acharonim, which we'll get to a little bit later. In order to be mechayev in the mamon, do we have to say it's based on you being over this issur mazik? Reb Shlomo Zalman, they all clarify this shailah. Rav Nissim, in order to be chayev in the mamonus, does it have to go through the issur? If I'm over the issur mazik, I have a chiyuv mamon. You need the issur. That's a shailah l'Acharonim. The emes is, the sevara I don't hear it so well, but they have many rayas for it. The sevara I don't see why should the mamonus be telling the issur. But Reb Shlomo Zalman, they speak about it; they have rayas for it. L'choirah, the way we're learning, it has two noshaichus. There's the issur mazik, and then there's the achrayus of the hezek that you're chayev to pay, even your ganef. Unless you say that—and nachonami, even the Rambam will agree—in other words, there could be a mazik without a nizak, din without the nizak part. But, like, to be over and to be chayiv, you taka have to have the issur mazik. Because I'm splitting it two ways. What I'm doing is I'm saying is that the Rambam learns that the issur mazik is one thing, and the chiyuv to pay comes from the fact that he's a nizik, and he's achrayi. There's a hezek and you're achrayi for that hezek. But it's not muchach just because there are two different dinim that they're not talui ha-baha. Maybe taka in order to be over and to be chayiv, you taka have to go through the issur mazik. It's not muchach. No, it's just because I'm splitting that there's taka two different problems doesn't mean that you don't need to go through the issur mazik to get to the chiyuv of nezek. That was like this: l'machamah. If it's too difficult, don't worry, it gets easier from soon. For the next 45 minutes it'll be hard, and the next 45 minutes after that it gets easier. Don't worry about it. The Rambam l'chura learns that there's an issur mazik which is not dependent on gneivah d'halachah. There's an issur for you to be a mazik. So then you could come and say that the chiyuv mamon is taka like a gneivah because you were mazik.

And the issur is because you're a masik. So then it's lo karav and v'lo shayich zeh lazeh, and Reb Yisrael Zalman's chakirah is not the way the Rambam learns, l'churah. Although you could say just because they're divisible, which means you can have an issur mazik without a chiyuv mamon, that it's not necessarily muchach the other way. Maybe you can have a chiyuv mamon, you need an issur mazik. To have an issur mazik without a chiyuv mamon does herech. That's the Rambam. But it's still not muchach the other way around, that in order to have a chiyuv mamon you need an issur mazik. Maybe you still need an issur mazik. Just because the Rambam gives me the issur mazik on the chiyuv mamon doesn't mean that the chiyuv mamon doesn't need the issur mazik. Reb Yisrael Zalman, okay. So then what is this issur mazik? Is it a gneivah-dik halacha, like we say in the Tur, or like we say in the Rambam, mipnei sheyihyeh a mazik? Where does it come from? So memeila says the Rabbeinu Yonah. Rabbeinu Yonah in Avos, perek aleph, mishnah aleph, says klar, lo sigzol. Mamash gzeilah. Mazik is gazlan. That's this Tur. The Yad Ramah in Bava Basra, lo yachpor בורו קוב זיין, says it's kovea geder with the hevel liftnei iver. He goes under the issur of lifnei iver or v'ahavta l'reacha kamocha. If you take a look at the Chinuch, it's mitzvah reish mem gimmel. The Chinuch takkeh says it's because of v'ahavta l'reacha kamocha. You look at the Rosh, Shas Teshuvos, klal kuf ches, he says it's because of דרכיה דרכי נועם. Where does the issur mazik come from? What is it? You know, it's interesting. To most maggid shiurim, this would be the ikar part of the shiur. You notice for me, I'm just going through it like, okay, I'm giving the information, let's go vayter, you know what I mean? This is not the ikar, boys. The ikar is to learn the Mishnah. I just, in the Mishnah, in the Rambam is muchach that there's an issur mazik, and there's a din mamonis of mazik. And it's loi talui habah, because you can have the issur mazik on the mamonus. ... that's, could be you need the issur mazik to be chayiv the mamon. Maybe the other way around is taka emes. You don't need the mamon for the issur mazik, but you need the mazik, the issur mazik for the mamon. It's a geneivah d'halachah. The Yad Ramah in Bava Basra, l'yachpor ois kuf zayin says it's lifnei iver, or v'ahavta l'reacha kamocha. The Chinuch in reish mem gimmel says it's v'ahavta l'reacha kamocha. Like the second pshat, the Yad Ramah in Bava Basra. You look at the Shalos Uteshuvos HaRosh, klal kuf ches. He says it's derech hachinoya. Derech hachinoya is mechayev issur mazik. Could be this is the mekor for Reb Shimon's vort, the ... sevara. Not a mefurasha pasuk. The derech hachinoya, mamash, has to behave like an old person. Part of normal behavior of derech hachinoya is just to make sure your animal doesn't hurt anybody. But you're asking, what? ... no? But it's a simple translation, lifnei iver, lo siten. Don't hurt someone, don't stumble somebody, you mazik somebody, hurt somebody. The most little pshat. I probably say it's the most little translation, looked either. Don't put a stone in front of a guy to be mazik him. So you have an issur to be mazik someone. It's the most simple. All the big lamdanim, they don't read a pasuk. Lifnei iver, lifnei... don't hurt, don't stumble a guy. Don't put your foot out when a guy is walking and he falls. It's an issur, no? Everybody's thinking, don't give him a beer, don't this, don't that. They don't realize that. So I know my wife's gonna pipe up that there's a machlokes rishonim if there's pshutei in that pasuk. Yeah, okay, so what do you want from me? I'm not lasiova yadrama. What should I do? I should erase the yadrama? I should cut it out? I should write a sefer on the yadrama that Rabbi Weiss said that this is not like the chinuch? Okay. Oy vey. Why do you want my life? Why did I say so bad? I told you over yadrama, you know. Rabbi Weiss, you know, there's something called homework. Do the yadrama. What do you want from my life? I'm responsible for the yadrama.

My fault, he says it. Let me tell you what my job is. My job is to, what do you call that, the, in English, what do they call that? Process. To process the information. And I can tell you, nobody does it as good as this. Nobody. Nobody out there processing the information. You don't like the information, so complain to the Ribono Shel Olam. It's not my fault that the Yad Ramah says it. I'm sorry. I'm sorry. Is it my fault? Could I be responsible if the Yad Ramah says it? What should I do about it? Good, I know. You don't think I knew right away you were going to come and say, but there's no peshuto lifnei? I said that that's what's bothering you. I don't know all this. What should I do? But that's not the shiur. The shiur is not lifnei. The shiur is not lifnei, rabosai. Farkert. The shiur is to take an eiver and make him a seen person. The shiur is given maybe lifnei, but it's not supposed to be over lifnei. Okay, anyways. B'kitzur, so we have over here an interesting Rosh, that the Rosh says it's derech dachinoyim gar. Maybe that's Reb Shimon's vort, derech dachinoyim. It's human etiquette that you don't have your beheima hurting somebody else. There's a very interesting Chasam Sofer. The Chasam Sofer wants to say, shteit doch, u'shmartem me'od lenafshoseichem. So you have to be very careful. Every mazik could turn into a death situation. So u'shmartem me'od is mechayev you not to be mazik yenim. Mamin, mamin, I don't know. Mamin chaveiroi. I don't know. No, if you’re being mazik somebody else, I hear, Shmartem meod lenafshoseichem. But to be mazik yenem’s mamon, chayav is not to do this, some sefer. Okay. The Rashash in Kesubos daf yud ches says that the issur mazik is based on hashavas aveidah. The parshah of hashavas aveidah is mechayev that there should be an issur mazik, because maduch, you have to take yenem’s cheifetz and return it to him when it’s not yours; you took it away from him, kol shekein you’re not allowed to take it away. You’re supposed to go out of your way to make sure yenem’s cheifetz remains his. Daashteit in hashavas aveidah, so kol shekein you’re not allowed to take it away from him. That’s hashavas aveidah. You look at the Steipler, you look at the Kovetz Shiurim, Bava Basra os ayin daled, they hold that it’s this yesod, the Rashash, that the issur mazik is hashavas aveidah. What’s the nafka mina between these ta’amim for the issur mazik? What’s the nafka mina if it’s because of geneivah, or it’s because of the other ta’amim that the Rishonim tell us, because of hafla’as hachamoicha, darkei darchinoyam? What’s the nafka mina l’maaseh? So I think it could be an interesting nafka mina, the Rambam’s case, l’choirah. The Rambam discusses what happens when I'm mazik k'dei l'shalem. So if it's geneivah, like I tell you, l'choira it's not shayach to geneivah. But if it's al tzviachter yacha kamoicha, if the problems are other inyanim, so maybe I'm patur, not a get to the mamon so much. If you learn that it's a mamonisdike din geneivah, so if I'm a naaseh l'shalem, if it's a naaseh l'shalem, could be I'm patur, not chayiv. But if the taiches that it's v'hafterech kamoicha, hashavas aveidah, so I'm taking away yenem's chefetz. In hilchos geneivah I'm not a ganef efshar, but in hilchos v'hafterech kamoicha and all other inyanim that the Rishonim talk about, derech hachinuch, for example the Rosh, that's yes shayach even when it's al menas l'shalem. It's interesting, the Kias Sefer, I saw the Keli Yakar brings it down in perek hei, niskei mamon, that if he's mazik al menas l'shalem, it's only asur midrabbanan. It's only asur midrabbanan. If you take a look, the Bach, the Bach, Choshen Mishpat, lamed daled, os yud beis, it's a machlokes, and he says, he brings from the Mordechai that—

If you're mamashik, a menas l'shalem, you're pasul eidus. So, l'chein, מדייק from the Bach, from the Mordechai, that it must be d'Oraisa, because if it's only d'Rabbanan, you wouldn't be pasul eidus. What's the hesber ha-machlokes? This, l'choira, the hesber ha-machlokes. If you learn that it's a geneivah dika halacha, so a menas l'shalem, there's no geneivah. A menas l'shalem, it's not a geneivah. Mashen kein, if you learn that it's not a geneivah dika halacha, then it could be d'Oraisa. The only problem is the hesber becomes a pesul eidus then. If you over an issur, pasul eidus. If you ganav, you become pasul eidus. So I would say, fakert, loit the Kiyas Sefer, it's not a geneivah dika halacha. It's not a geneivah dika halacha. Could be it's only d'Rabbanan, and the pshat it's only d'Rabbanan. Why? Because it's nichlal in the parshiyos of hashavas aveidah, maybe, mid'Rabbanan. It's not a d'Oraisa; it's nichlal in the parshah of hashavas aveidah. So that's a d'Rabbanan go. Mashen kein, loit the Tur, that's mamash d'Oraisa, k'sheim she'asur lignov v'ligzol, so you taka, like the Bach, k'sheim the Mordechai, you become pasul eidus. See, at first glance, as they say, hashkafa lishaina, I would have said that the Kiyas Sefer is loit only d'Rabbanan, because the pshat, since a menas l'shalem, you're not a ganef, like, not like the Rambam. The Bach, the Bach will be the Rambam, because even a menas l'shalem, you have the issur. The issur mazik is shayach even when it's not a menas l'shalem. The only problem is why pasleidus? Even this is not pasleidus; that's a ganef. So, fakert, the bach is the tur. The Bach held that it's a gneivah dika halacha mi'pasleidus. The Kia Sefer learned that it's not a gneivah dika halacha. It's like the other shitos; it's al tzad hashavas aveidah. So it can't be a d'Oraisa; it's only d'Rabbanan. In this din of hashavas aveidah, sheteichnisht asur l'haazik, d'Rabbanan said it's nichlal. We find this also by bikur cholim and all these things. The Rambam paskens that all these things are only d'Rabbanan. What are they nichlal? V'ahavta l'reacha kamocha. The Rambam. The Rambam is kolel all bikur cholim and all these inyanim in the d'Rabbanan, mi'divrei sofrim, based on v'ahavta l'reacha kamocha. Same thing. Since it's based on v'ahavta l'reacha kamocha, since it's based on the issur of hashavas aveidah, the din of hashavas aveidah, thus meinte Kia Sefer is sina d'Rabbanan. Now, let's identify what is this issur. We know where it comes from. We know where it comes from. Either it comes from the issur gneivah, like the shita of Rabbeinu Yonah in the Tur, or it comes from the lifnei iver, or v'ahavta l'reacha kamocha, Yad Ramah, or like the Chinuch, v'ahavta l'reacha kamocha, or like the Rosh, l'ched d'Chinanya. Or like, ... from Nishmartem me'od lenafshoseichem. Or like the Rashash, Shabbos ..., the acharov, the Kli Yakar, and the Koveitz Shiurim, al ha'achronim. What is the yesod hapasuk? We know where it comes from, but what is it? So it's interesting, the Bachrim spoke, shtei techin Torah v'lo yishmerenu, that by the parshah of mazik, shtei didn't watch the behemah. So the Chashmuel, siman beis, brings from Reb Chaim that he asked the kashya to Reb Chaim, what's the yesod hapasuk? Reb Chaim says, shtei techin Torah v'lo yishmerenu. So v'lo yishmerenu, Reb Chaim is being mechadesh that it's not why you're chayav, why you're chayav, but v'lo yishmerenu, you were supposed to watch it. The Torah is telling you, michlal lav atah shomea hein, that you were supposed to watch it. Now be very careful here, because it's very, very tricky how to learn this b'Chashmuel, Reb Chaim. Shtei v'lo yishmerenu. But the Torah is saying it in the context of what you did and don't. So the Torah is not telling you what to do. The Torah is telling you what you didn't do. So how do you understand what you didn't do? So either we could—

Say you didn't do it, therefore you're chayav. Or you could say, v'lo yishmerenu, from the fact that the Torah is me'ashim, blames you for not doing it, so that itself, michlalo d'shmeihein, you were supposed to do it. But if you learn like the first way, that it's not that the Torah is blaming you, but the Torah is telling you that's the reason why you're chayav, so where do you see there's a mazik? So you have to say, like the Acharonim, that the issur mazik is the reason why you're chayav. In other words, if the v'lo yishmerenu is the reason why you're chayav, so the v'lo yishmerenu means that there's an issur to be mazik. Nachon. Listen carefully, I said it's very tricky. Reb Chaim just says simply, v'lo yishmerenu. So you see you have to watch it. Now, to say over Reb Chaim just like that means you don't know what he's saying, and you're not saying anything. You're not saying anything, because again, you don't see that you have to watch it. All the Torah is saying is you didn't watch it. So maybe pshat is, who told you you have to watch it? But in case you didn't watch it, you have to pay. So either you could say that Reb Chaim meant to say is that the Torah blames you for not watching it, so it means the Torah was mechayev you to watch it. Michlal lav atah shomea hein. Not even going into the chiyuv mamon, stam from the words v'lo yishmerenu. Either that's what Reb Chaim means, or Reb Chaim means, you see that the v'lo yishmerenu was gorim the chiyuv mamon, so then we have to understand how is the v'lo yishmerenu gorem the chiyuv mamon. Which becomes another klal in Nachri. Is it the issur or is it the peshiah? Is it the issur of v'lo yishm'renu, the issur mazik that's mechayev, Reb Yisrael Zalman, like I told you, or it's the peshiah sheboi, the fact that I was a peshaya, that's mechayev that I have to pay. Peshiah? You're a peshiah. The v'lo yishm'renu that's gorem to pay, is it a gorem because I did the issur, or it's a gorem because I was a peshaya? Exactly. Huh? So that's the question. That's the whole question. Reb Chaim says in the words v'lo yishm'renu, we see an issur. Now, either Reb Chaim means, because the Torah—what do you call—the Torah accuses you. V'lo yishm'renu, that means that you were supposed to watch it. Michlal lav atah shomea hein. A dilma, what Reb Chaim means—and the yeshiva world, they gotta learn like this, the Reb Chaim—that if the Torah says v'lo yishm'renu is the reason for the chiyuv mamon. Now, boys, does this sound familiar? Is v'lo yishm'renu a reason for the chiyuv mamon? Hatzad ha-shaveh. Remember how we spoke in the beginning of the shiur? Remember we spoke about this? Is the hatzad ha-shaveh, shemirasan alecha, the reason? But let's get back now to v'lo yishm'renu is the reason. So then you have to clarify the reason why. The reason because I did the issur, or the reason because I was a peshaya. Reb Chaim's learning because I did the issur. We could commentate because I was a peshaya. Now let's see the Nimukei Yosef, how he brings this din of chiyuv shmira, u'shmiraso lecha, on the tzad hashava. Nimukei Yosef. Rabosai, turn to the Nimukei Yosef. Acha! Shenischayavta b'shmirasan, machmas shehein memoncha. Oi shenimsares lecha l'shamra, oi she'asisa בהם מעשה שחייבך בשמירתן, כדאמרינן לקמן, והשומר שמירתו עליך, שאי אתה חייב בנזקן אלא בזמן ששמירתן עליך, ופשעתה בשמירתן עד שהזיקו. So first of all, the pshia and the pshia that we see clearly in the Nimukei Yosef. That's what I want to begin with. He says clearly that the shmirasan alecha and the pshia, and that's what you're chayiv. The only chiddush that we have over here in the Nimukei Yosef is the first part of the Nimukei Yosef, that what's the reason to be mechayev you on the pshia of shmira? Because it's memoncha. L'choira, it's not because of the issur.

It's because it's memoincha. The only thing is, if you look carefully, he brings a few cases. Shenischayavta b'shmirasa machmas sheheim memoincha. Oy, oy, shenimsaris l'cha l'shamra, not your mamon. Oy, she'asis b'ma'aseh shechayavcha b'shmirasa, again not your mamon, which is a famous chakirah in Acharonim, ba'ita. Acharonim want to know, what's the reason for chiyuv nezek? Because it's my mamon, which is like my extension. It's me. My mamon was mazik, so who else should pay for it? Or the pshat is because since I'm chayiv to watch, and I was a poshea, so therefore. So the Muki Yosef takkeh speaks memoincha, and that's a very stark diyuk. But he also says what when it's not memoincha. So you have to say that you see it's not a din in mamon hamazik. What is it? It's a poshea. Now, what's the nekudah of poshea? L'choira it has to do with issur, and that's why he doesn't speak issur. The word issur isn't in the Muki Yosef. So l'chora, Reb Chaim's yesod would be that the mechayev is the v'lo yishmerenu, the issur, while the Muki Yosef seems to say not like this. The Muki Yosef is saying is because it's not memoincha, but it's shmiraso alecha, and pshia. That's the equation. The equation is, is it because it's memoincha? Some Acharonim learn like this. Is it because it's shmiraso alecha and you're poshea, the Muki Yosef? Or like Reb Chaim, because you're over the issur. That's issa mazik chayav mamon. One thing is clear in the Muki Yosef. The words of the Muki Yosef is that the shmiras haleches mechayev the money. He says it clearly, right? You reading it? You reading it? He doesn't say clearly that shmiras haleches is mechayev. Because his chava mazik is the result of a shmiras haleches, huh? Says it. Rabosai, let me tell you one step further. Let me tell you one step further. There's a very interesting Bach. The Bach says there's an issur mazik. Where did the issur mazik come from? Who said there's an issur mazik? So that we know we brought mekoros from Rishonim that give us where in the Torah issur mazik comes from. The Bach says, you know where the Tur knows it from? It says in our Mishnah. Shteit in our Mishnah. Azoi zogt the Bach. The Bach says, mekor of divrei haTur is our Mishnah. Where? Because the Mishnah says a shmiras haleches. So you see clearly there's a chiyuv shemirah. So there must be an issur mazik. Azoi zogt the Bach. Yeah? The Bach says, where did the Tur know issur mazik from? So I gave you an entire, remezak Tur around for the Tur. Where does the Torah knowledge from? I brought you from Rabbeinu Yonah, from the Yad Ramah, right, with the chinuch, with the Rasha. The Bach says it says in our Mishnah. In our Mishnah it says, Ushmirasan alecha. Haboisai, where does he see that in the Mishnah? It just says, Ushmirasan alecha, it just means you have to watch it. Where does it say there's an issur mazik? Could be it's like Reb Shimon. It's a seicheldike thing, derech eretz kadma laTorah, that you have to watch your animal. Haboisai, let me ask you a question. Hatzad hashaveh, I told you is toli. If you learn hatzad hashaveh means dinim in the parsha, so then it becomes hatzad hashaveh that's darken lehazik. Also, what? Shmirasan alecha is a din in the parsha. Mimeila, shmirasan alecha has to come from the parsha. Mimeila, the Mishnah is telling us that there's a makor, but you still don't have the issur mazik though, right? Could be there's a din of shmirasan alecha, you have to watch it. So let me talk to you for a second. The lashon of darkan lehazik. You know, I always like to read the words.

I find that the words, the lashon of the Gemara, the Rishonim, they enlighten us into the sugya if you learn them properly. When the Mishnah says, darkon lahazik, so we could translate darkon lahazik that that's one of the tzadim of chumra, or that's the reason to be mechayev, right? So why does it say darkon lahazik? But let's clear up, boys. Is the mechayev because of you, that you're a poshea? Or is the mechayev because the maiseh is a maiseh hezek? We began the shiur by clarifying: mazikim nezikin. Is the yesod the mazik or the maiseh hezek? What's the nafka mina if it's the mazik or the maiseh hezek? If you learn the mechayev is pshia, so then the pshat is what? You, the mazik. If the yesod of mechayev, shmirasan alecha, means what, like the Nimukei Yosef says, you're the poshea, then the yesod of the mechayev is what? That you're a mazik. Peshea, you have pshia in your shemira. If you learn—what? I asked you, arba avos nezikin, shtei tlazikin nishmazikin. So the Rishonim say, and then we said it could be because the nekudah isn't the mazik, but rather the ma'aseh hezek. L'choira, it's talui in this shaila of the Rishonim: why you're chayav on shemirasan alecha. If you're chayav in shemirasan alecha because you're a poshea, so then the taich becomes you're a mazik. You were poshea in your shemira, so you're a mazik. I could hear that, therefore it's a ma'aseh hezek. Pashut, the hezek, the ma'aseh hezek is there anyway, but you're not a mazik if you weren't a poshea. And b'emes, if you think about it, that's what the Meiri was saying, that since it's not always darken l'hazik, so you're not a poshea. Mamash the loshon of the Meiri. So shemirasan alecha is the taich that you're chayav for poshea, so you're chayav al tz mazik. Ma she'ein kein, if you learn that it's not mazik, but rather it's ma'aseh hezek, so the darken l'hazik becomes what? The darken l'hazik becomes that otherwise it's not a ma'aseh hezek. If it's not darken l'hazik, so then this is not called a ma'aseh mazik. I'm clarifying: what's the darken l'hazik? The darken l'hazik is the taich, therefore you're not a mazik? If it's not darken l'hazik, meaning the darken l'hazik makes you into a mazik? That's so poshut, because the shemirasan alecha is the poshea. Who said the darken l'hazik is that? Pashut, the darken l'hazik is therefore it's a mazik. The hezek is a ma'aseh hezek. Since it's a darken l'hazik, so what they do is hezek. Don't say the darken l'hazik meilei you're a peshia. It doesn't say it anywhere. Show me where it says in the Rishonim, since it's darken l'hazik, so therefore you knew and therefore you're a peshia. It doesn't say that. We're talking about the ma'aseh hezek, darken l'hazik. I'm clarifying the darken l'hazik is the mazik or the ma'aseh hezek. The same shaylah would be in the shemirasan halecho. Is it in the ma'aseh hezek, or it's in the mazik? It had to be watched, so therefore it's a hezek when it's not watched, or it had to be watched and you didn't watch it, so you're a mazik. If it's pshat that there's a hezek because it had to be watched and you didn't, and not so much that you're the mazik because you didn't watch it, what's the nusach shemirasan halecho? Chayav l'shomro, you have to watch it. What's the halechah? The halechah is not negea. The main thing is that it's shamor. Darken l'hazik, it's dangerous. It has to be watched. If you're looking at the ma'aseh hezek sheboi, the halechah is really not negea. It should just say like this: darken l'hazik, v'chayav l'shomro.

To be shomer. Tzricha shmirah; they need shmirah. The fact that the Gemara, the Mishnah, is madgish d'yolecha, the Mishnah is mashma that we're talking about the mazik. You had to watch it. You were poshea not watching it. Does everybody understand what I want? Think of it this way. We're almost done. Another hour. It's almost finished. Not so good, but you see what I want? In other words, like this. When the Mishnah speaks, when the Mishnah speaks, darken l'hazik, u'shmirasan alecha. What does the Mishnah mean? Does the Mishnah mean to say, since it's darken l'hazik, so therefore their ma'aseh is a ma'aseh hezek, u'shmirasan alecha? So that becomes what now? I could say, you had to watch it; you didn't watch it, so there's a hezek, ma'aseh hezek here. You look at the Rishonim, they talk about the pshia. The pshia is that taich more you than the ma'aseh. The nezek is you, the mazik, because you didn't watch it. The lashon of the Mishnah is u'shmirasan alecha. What's it nafka mina between everything, if it's the din in the mazik or the din in the nizak? I'll tie it like this. Like I said, the Bach learns from over here there's a nisah mazik. If this is the reason for chiyuv, so you invite that don't have a nisah mazik. Because maybe the reason for chiyuv is because since you didn't watch it, so now you're chayiv. But it doesn't say anywhere there's an issur, vushtei issur. If the Mishnah only means to say, Shmirasan alecha, and that's why you're mechuyiv, where do you see issur בכלל? Where does it say one word that it's assur to be mazik chaveiro? But if you learn that it's a tzad chumra in the Mishnah, which means there's a din that's mechayev shmirah, so the chakirah becomes: one din is mechayev the shmirah. One din is mechayev the shmirah. So if you learn that the Shmirasan alecha is the pshia, so then the pshat is it's only a din of your watching your animal, not more than that. You had to watch it, and you didn't watch it, so there's a pshia that's mechayev you. But if it's not, it's the pshia, so what's the mechayev in Shmirasan alecha? What? The issur. One second, one more time. We'll end with this, I see the oilam can't take anymore. We'll stop over here, but just listen to me one more nekudah and you'll see what I want. The Bach says that in our Mishnah's statement, it's a mazik. Okay, sha's, where do you say in our Mishnah it's a mazik? It doesn't say anything about it's a mazik. It says Shmirasan alecha, you have to watch it. Good, so there's mekoros from the Rishonim where we know it from, but it still doesn't say issur. The word isur never is found in the Torah. It's nemesis. You have to know if this is a reason to be mechayev. So let's say it's a reason to be mechayev. Let's say it's a reason to be mechayev. So the shmiras halecha becomes the reason. If you learn like the Nimukei Yosef, that the shmiras halecha is pshat is you and you're the mazik, you're the mazik, and the pshat is you're supposed to watch your peshiah, so there I hear why you're chayev. How is the shmiras halecha the mechayev? If you learn the shmiras halecha is not so much olecha the pshiah, but it's just a tzad hashava that it has to be watched, like darka l'hazik, and there's another tzad hashava, shmirasan, grado olecha, but the olecha is not the main part of the נזק; it's not we're blaming you for it. It had to be watched. So if it's not the pshiah in the ma'aseh shemirah, then what was it? So you could say it's m'ma'on chashehizik, but that has nothing to do with shemirah. And the Nimukei Yosef tells us a veke valdik, because it shayach shemirah only m'mecha. M'ma'on chashemirah, not toli bah. Teretz is that there's a din shemirah that's mechayev. Once the din shemirah that's mechayev without the pshiah, the teretz is this a mazik. Does make the bach. Mishteteit, because if you learn the...

That this is one of the reasons to mechayev. So you can either learn it's only because it's pshia, or because there's a nisamazik. It's off the back, dashtei, there's a nisamazik.