Clarification: Rashi ascribes this Pircha to the first Din (the Mah Matzinu) ...

Clarification (cont.): ... because the second one (the Kal va'Chomer) where Ish va'Ishah, whose strength is 'weak' by Nizakin, we cannot therefore learn Kal from Chamur ...

. Reason: Seeing as even if 'Mu'ad' was not written at all (by Ben u'Bas), we would learn it from the Kal va'Chomer.

Implied Question: Even though by the Kal va'Chomer too, the Tana says 'Lo Chilakta ... ' ...

Answer: ... that Lashon is La'av Davka.

Conclusion: In fact, that explains why the Tana needs to insert 'Lo Im Amarta ... ' - in order to create a Pircha on the second Din (the Kal va'Chomer).

Implied Question: The Tana needs to include Nezikin (even though the basic Pasuk is talking about Misah) ...

Answer: ... because in 'ha'Meni'ach' (earlier, on Daf 33a) the Tana Darshened the end of the Pasuk with regard to Nezikin - 'ke'Mishpat Shor be'Shor'.

Precedent: And similarly, at the end of the Perek, the Gemara learns a superior guarding of Nezikin from "ve'Lo Yishmerenu" even though "Lo Yishmerenu" is written in connection with Misah.

Refuted Explanation: The Gemara does not want to establish the Mishnah like Rebbi Yossi ha'Gelili, as Shmuel himself does with the Mishnah in 'ha'Parah' (later on Daf 48b), in connection with where 'His father or son was in the pit' ...

Refutation #1: ... because what would push Shmuel to establish the Mishnah here like Rebbi Yossi ha'Gelili?

Refutation #2: And what would then be the source of the Machlokes, seeing as Rav and Shmuel, would merely be arguing over who is the author of the Mishnah?

Refutation #3: Moreover, the Reisha of the Mishnah (on Daf 41a) 'Mu'ad Meshalem Kofer, ve'Tam Patur min ha'Kofer' does not go like Rebbi Yossi ha'Gelili.

Implied Question: And the reason that Shmuel does not establish the Mishnah later where 'It is a Mu'ad to fall on people in pits', like he establishes the Mishnah here where 'It is a Mu'ad to scratch against walls when there are people there is ...

Answer: ... because it is not as common as the case here.

Clarification (of question): The Makshan thought that the animal was scratching against the wall in order to knock it down, but not with the intention of causing it to fall on top of people ...

Reason: ... in which case it would not be Patur from Misah.

Clarification (of question [cont.]): And on this it asks 'But it is a Tam?' - And even if it did this many times and people were killed unintentionally, it would not become a Mu'ad to kill people, as Tosfos explained earlier ...

Reason: ... since we do not find a Mu'ad that intends to kill an animal and kills a person.

Clarification (of answer): And the Gemara answers that 'Mu'ad Lehischakech al B'nei-Adam' means where it actually scratches for its pleasure, as the Gemara goes on to explain ...

Clarification (of answer [cont.]): ... which is a Mu'ad right from the start, since that is a normal thing to do.

Question: What pushes Shmuel to say that it is Chayav Kofer, why does he not establish it where it intends to knock down the wall, but not on to people, in which case it is Patur from Kofer as well, since it is a Tam?

Answer: Since both Rav and Shmuel extrapolate from the Lashon of the Mishnah 've'Nafal al ha'Adam', that the ox did not intend to knock the wall on to people, but that it so happened that automatically did when the ox was scratching itself against it for its pleasure ...

Explanation: And that is why Shmuel says 'where it scratched itself against the wall for its pleasure, as is implied in the Lashon of the Mishnah, in which case it is Patur from Misah but Chayav Kofer.

Clarification (cont.): And Rav says that it is Patur from both, since the Lashon 'Patur' implies that it is completely Patur.

Conclusion: Whereas the Makshan thought that the Mishnah mentioned 've'Nafal al ha'Adam', and not 've'Hipilo ... ', because it speaks where, although it did not intend to knock down the wall on to people, it did intend to knock it down.

Question: Here Rav says that he is Patur from both things (Misah and Kofer), whereas later, in 'ha'Parah' (Daf 48b) he establishes the Mishnah which states that it pays Kofer - by a Mu'ad to fall on to people in pits when it sees a vegetable?

Answer: Rabeinu Tam answers that the case there is one of Regel, when the ox places itself in the pit in order to eat the vegetable, in the knowledge that the person in the pit will be squashed ...

Answer (cont.): ... like an animal that treads on a baby knowing that the baby will be killed (above, Daf 20a).

Answer (cont.): Which explains why he pays Kofer, even though the ox is not Chayav Sekilah, since it does not have the intention to damage, and we learn Regel be'Kavanah from Keren be'Kavanah.

Answer (cont.): Whereas here, where the ox scratched against the wall for its pleasure, it is a case of Shein she'Lo be'Kavanah, since it does not know that the wall will fall on the person. Consequently, it is Patur from Kofer like Keren she'Lo be'Kavanah.

Clarification: The Mu'ad mentioned here and later is La'av Davka a Mu'ad after three times, but refers to where the ox is a Mu'ad from its inception, like Shein and Regel.

Implied Question: And when the Gemara asks later, after having established the case where it is a Mu'ad to fall on people in pits - 'In that case, it is subject to Misah?'

Answer: ... it extrapolates from the Mishnah which states 'Meshalem Kofer', and does not add 'Chayav Misah', that it is Patur from Misah.

Rashi: Rashi explains that entire Sugya differently, but his explanation is a Dochek. Tosfos will explain it there be'Ezras Hash-m.

Question: There is also a Kashya on Rabeinu Tam however, inasmuch as he declares Patur from Misah Regel be'Kavanah that intended to tread on a person, since it did not intend to kill him.

Question (cont.): If so, Rebbi Shimon, who in our Sugya, learns Nizakin from Misah, will exempt Regel from Nizakin, there where the animal intended to walk on Keilim but not to destroy them ...

Question (cont.): But this is impossible, since, as the Torah does definitely not make the Chiyuv of Nizakin dependent upon Kavanah to damage ...

Reason: ... because if it did, that would be synonymous with Keren.

Question (concl.): That being the case, it is impossible to learn Nezikin from Misah with regard to Kavanah.

Alternative Text & Answer: Rabeinu Shmuel found in old manuscript that does not have the text that Rav exempts from both things; and later it has the text 'Tanya Kavaseih di'Shmuel, ve'Tiyuvta de'Rav, who exempts above from Kofer, when the ox is not Chayav Sekilah.

Question #1: According to the opinion (in Pesachim, 33b) that 'Hasra'as Safek is not considered a Hasra'ah', we will declare him Patur even without the reason of 'Safek Nefashos .. ', due to the reason of 'Lo Sh'meih Hasra'ah'? ...

Question #1 (cont.): ... even if we were to hold 'S'feika le'Chumra'?

Question #2: And according to the opinion 'Sh'meih Hasra'ah', how can we declare him Patur for that reason here, there where it transpires that he killed a Yisrael? Seeing as in a case (of a Safek which man is his father) where 'He strikes first one and then, the other', we declare him Chayav, even though it is a Safek? ...

Question #2 (cont.): ... and in the case of Nosar (leaving over some of a Korban Pesach), where they warned him 'Don't leave over!'?

Answer: Because it is different there, where he knows for sure that he will transgress if he leaves over or if he strikes both men, which is why it is called a Hasra'ah ...

Answer (cont.): ... as opposed to the current case, where he throws a stone into a group of people, and where he does not know for sure that he will perform an Isur, since he does not know whom the stone will hit.

Source: It is from here that we learn 'Kavu'a' throughout Shas, as the Gemara explains in the first Perek of Kesuvos (Daf 15a).

Question: From where does Rebbi Shimon learn 'Kavu'a'?

Refuted Answer: We cannot answer here like the Gemara says in Erchin (Daf 7 - See Mesores ha'Shas) and in Sanhedrin, Daf 79a) - that Rebbi Shimon learns 'Nesinah' 'Nesinah', and 've'Arav lo" is therefore redundant to learn from it 'Kavu'a' ...

Refutation #1: ... because according to bei Chizkiya (who does not learn 'Nesinah' 'Nesinah'), the question from where Rebbi Shimon will learn 'Kavu'a will remain.

Refutation #2: Moreover, since Rebbi Shimon declares him Patur even if they are all Yisre'elim until he says 'I am aiming at P'loni!', it is not possible to Darshen it (the Rabanan's D'rashah).

Answer: According to Rebbi Shimon, he is Patur on account of 'Kavu'a' from "ve'Arav lo", in a case where they are all Yisre'elim except for one Cana'ani, and where he said that he is aiming at the one that he points out ...

Answer (cont.): ... because in a similar case where, if they were all Yisre'elim, he would be Chayav (See Mesores ha'Shas).

Clarification: 'One' for itself and 'six' to include.

Implied Question: The Tana needs to include it ...

Answer: ... since on Amud Alef the Gemara stated "Ki Yigach", 'Negichah le'Misah, Negichah li'Nezakin', and by Nizakin the Torah specifically writes "Ish". Therefore, Shor Ishah needs a Ribuy to include it.