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What is the fundamental basis for liability in the four avos nezikin? The Mishna states "shmirasan alecha" (guarding is upon you), yet the Torah (תורה) only commands payment. The shiur examines why shemirah appears as the yesod of liability rather than simply ownership, and explores whether there exists an independent obligation to guard one's property beyond the financial consequence of paying damages.
This shiur analyzes the opening Mishna of Bava Kamma, which introduces the four primary categories of damages (arba'ah avos nezikin): shor, bor, mav'eh, and hev'er. The Mishna concludes with the principle "shmirasan alecha" (their guarding is upon you), establishing that one who is negligent in guarding these sources of damage is liable to pay for any resulting harm. Rabbi Zweig begins by addressing a fundamental conceptual difficulty in Tosafos (תוספות) regarding the principle of "yesh shemom min hadin" (one can derive the full severity of the law through logical inference) versus "ein shemom min hadin" (one cannot derive the full severity). Tosafos on this daf appears to say that our Mishna holds "yesh shemom min hadin," yet cites a Mechilta that says "ein shemom min hadin" and seems to rule accordingly. This creates a serious contradiction: how can Tosafos poskin like a Mechilta against the stam Mishna? The Rambam (רמב"ם) explicitly writes in his introduction that when there is a clear Gemara (גמרא) or Mishna, one does not rule like a Mechilta. The shiur explores possible resolutions, including the idea that the Mishna may only be "k'tzas mashma" (somewhat indicative) while the Mechilta is clear, creating an "ein safek motzi midei vadai" situation.
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Bava Kamma 2a
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