Portfolio #3

  • Since Gavi landed inside the woman, one might have thought he would fulfill Yibum (had the woman been his brother's widow) but as learned in the Gemara, 27a, he doesn’t fulfill Yibum because he has no intent (מתכיון).

    • יבום occurs when a man dies and leaves his wife with no children. The man’s brother has the obligation of יבום to marry the widow and provide offspring.

      • If the brother does not want to marry her, חליצה is done, in which he spits in a shoe.

      • מאמר -If a younger brother wants to marry the widow, he does מאמר(otherwise falls upon the oldest).

  • What if the wave that came was common?

    • For this we look at the same daf: Rabbah says:

      • For a Common wind (or in this case wave): Must pay for damages along with the ד׳ דברים

      • Uncommon wind (or in this case wave): Only pay for damages, not the ד׳ דברים

      • If turned in air, also obligated for בושת (meaning if Gavi had intent to land on a person)

  • What about the shorts? Weren't they supposed to stay on?

  • In fact the ad said Shorts, not a Bathing Suit. When Gavi called up the store they said the shorts were only to stay on outside of water. Since they were shorts, the store owner said, it should be obvious not to wear them in water. Gavi was upset because he as well as some other people call bathing suits shorts.

    • We do not go by majority for monetary cases.

      • Rashi: The burden of proof is placed upon the person asking for compensation (money) in this case Gavi.

    • Tosafot asks how can price not matter in this case? Shouldn't Gavi have known a bathing suit would cost more than 39.99 and therefore have known it was talking about regular shorts? He provides 2 answers:

  1. Maybe the price was close- shorts maybe cost 39.99 usually and bathing suits maybe cost 45- close enough to not know the difference

  2. Maybe it was being bought in bulk- when buying 100 bathing suits price may seem similar to buying 100 shorts

    • We learn from Tosafot that price DOES MATTER! (In some cases)

      • Sometimes it may be obvious that the price refers to one thing and not the other. For example, if you are buying a car from someone and they sell it for $5,000 you can assume you are getting a real (not a toy car or something)

  • Assuming Tommy is playing in public property, the Gemara on 27b holds that Tommy must pay Avi for the damage to his ankle and Avi does not have to pay for the Lego brick.

    • The Gemara provides 4 answers as to why Avi is exempt:

      • Rav: It was an unavoidable situation

        • A public place that was full of lego so there was no way for Avi to avoid stepping on it.

      • Shmuel's answer of it being dark does not apply here.

      • Rav Yochanan: The Lego was behind the door so Avi couldn't see it in time to avoid it

      • Rav Oolah: It’s not man’s nature to look where he is going, Avi does not have to look out for Lego while walking

        • According to all the other opinions, Avi is חייב if it is daylight, the object is not obscured, and not in abundance

    • In some scenarios, everyone agrees man must look where they are going.

      • Rashi: If it’s a known thing that objects are kept there, like the corner of an oil press, man must watch out and be cautious of objects

  • What if the Lego was right behind the door and Avi had no way of knowing it was there? Then when he opened the door and the door broke the lego., what would it be? Tosfot brings up a new classification, "Ones Gammer" in which someone does damage but he had absolutely no way of knowing that the damage was going to happen and is therefore exempt.

  • Tosfot brings up 4 cases to prove this idea: of Ones Gammur

    • A person trips on an object in the dark

    • A person is sleeping and damages someone who came into bed next to him

    • A person carrying a barrel stops short and a person carrying a beam behind him breaks the barrel

    • A deceased father left a borrowed cow to his children. Assuming it was now their cow, they slaughtered and ate the cow. They only have to pay the cheapest value of meat.

  • The Ramban rejects Tosfots idea of Ones Gammur, he says in all of those cases, the person who was injured or got their objects damaged put themselves in harm's way. Meaning Tommy should not have left the lego by the door. Here is Ramban's explanation of Tosofots proofs to back up his idea:

    • The person should not have left the object on the floor in the dark

    • The person should not have gotten into the bed (basically hurt himself)

    • The person carrying the barrel should have looked behind him before short stopping

    • The Ramban has no answer for the cow case, but the Steipler does:

      • The Steipler says there is an acceptable assumption that "Anything in my possession is mine" so the children are not even considered as doing damage.

  • The main argument between the Ramban and Tosfot is whether you are fined for reimbursement for the damages or as a punishment for damaging someone's property

  • Here we hold like the Ramban that Tommy should not have left his lego by the door where it could easily be broken by someone walking in and since he did leave it there, he caused Avi to get hurt and needs to pay for the damage.

  • To figure out what Gavi is obligated to pay, we look to the Gemara on 27a. There the Gemara quotes a Mishna that a man is exempt on killing someone if he can escape the danger (put coal on chest- take it off) and a man is obligated on damaging clothing, even if the person can prevent the damage from happening. Rashi explains further:

    • Rashi regarding killing someone by putting coal on chest: The person who places the coal is exempt because he can assume that any man would immediately remove it.

    • Rashi regarding coal on clothing: This is different than a body because the person may allow the coal to damage his clothing (personal item) in order to receive payment for a new one. As for the person placing the coal, you cannot assume the owner will remove it. Therefore, the person is obligated to pay for the damage to the item.

    • If coal/danger placed on a slave (man or property?)

      • A slave is considered to be like a man: person placing the coal is exempt because the slave owner or slave will just remove it.

    • If coal/danger were placed on an ox: Since it is like the clothes (property), the person placing the coal is obligated.

  • Conclusion: Therefore Gavi must pay for the Oxygen lost from the tank due to the hole and not pay for the danger he caused to Avis life because it’s expected of him to save himself. But if they were Scuba Diving in the deep and Avi could not have saved himself and died, Gavi would be responsible for his death.

 

 

 

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