But he did not undertake safeguarding [the ox] from causing damage. The Gemara is saying that the Braita that speaks of liability for an ox that has been deposited with one of the guards is speaking about when the borrower assumed responsibility for what might happen to the ox itself, but not for that which the ox damages others. The liability for damages remains with the ox’s owner and if the ox damages an ox belonging to the borrower, the lender is liable as an ordinary damager, for a tam half payment and for a muad full payment.** If you ask: Since the borrower did not assume** responsibility for damage done by the ox on loan,**** liability for damages remains with the owner, if so, it is plain that if the ox on loan damages the borrower’s ox that a tam must pay half of the damages and a muad must pay full damages? We can answer: one might think that when the borrower does not assume responsibility for**** damages, the understanding isthat he is not obligated to secure the ox on loan, so that it does notdamage a third party’s ox, ¹ but insofar as the borrower’s own ox is concerned,one might think that the borrower assumed responsibility for what the ox on loan might do to his own ox and the lender should be exempt, the Braita therefore needs to teach us that the lender is liable even for what the ox on loan does to the borrower’s ox.

footnotes: ¹ דעלמא – literally of the world.

Are there not [baraitot] that disagree? As Tosafot earlier on 13b ד"ה חצר השותפין explained, the Gemara here is saying that R’ Elozor would tell us that the two Braitas are disagreeing with each other. Although the Gemara does offer a resolution, R’ Elozor does not agree with the interpretation of the Braita that holds one liable. The Gemara says that the Braita will be speaking of when both partners are allowed to bring in their produce and they are both not allowed to bring in their oxen. R’ Zeira wondered: How can this be considered ‘another’s field’? After all the damager may also store his produce in the courtyard! Abaye answered this question, but the Gemara says that R’ Elozor does not accept Abaye’s answer and holds that even though they may both not bring their oxen into the courtyard, since the damager may bring his produce into the courtyard, it cannot be considered ‘another’s field’ which is a requirement for shain and regel liability. Tosafot suggests another possible interpretation of the Braita that R’ Elozor could accept. The Gemara could have interpreted that Braita of Rav Yosef as speaking of the following situation: not this one and not that one have the right to bring in oxen and for produce; one of the partners may store his produce there.¹ In the very next Tosafot we will see that Tosafot holds that in this situation even R’ Elozor agrees that it is a courtyard of the nizok for shain and regel, since he has the exclusive right to keep his produce there and that it is the equivalent of a public domain for keren, since both are equally not allowed to bring their oxen into the courtyard.

footnotes: ¹ There is an obvious question asked by Maharsho and Maharam. Since both partners may not bring in their oxen and only one may bring in his produce, in what way is this a jointly owned courtyard? Maharsho and Maharam answer that we are speaking of a courtyard that opens to both of their houses and which they both use for other household items. The division is only for oxen and produce. Thus, this is a jointly owned courtyard that is a public domain for keren and the property of the nizok for shain and regel.

Not both of them [have permission to store] produce; rather, one [of them has]. Raveeno is searching for a solution that would allow us to say that the fourth general rule of the Braita also follows the opinion of R’ Tarfon who holds that when keren damages in the nizok’s courtyard it is liable for full payment. In this last rule of the Braita we must find a situation where the courtyard is considered as a public domain for keren but as a private domain for shain and regel. Raveeno suggests that the text of the Braita “not for this one and not for that one” is to be understood as follows: They did not both have the right to store their produce in the courtyard, but only one did have that right. Since only one partner has exclusive rights to store his produce in the courtyard, it is considered a courtyard of the nizok for shain and regel. All agree about this sentence in the Gemara. Our text continues: “לזה ולזה לשוורים - this one and that one had the right to bring in their oxen”. This would explain why this courtyard is not considered the courtyard of the nizok as far as keren is concerned, because the space was not the exclusive domain of either of the partners as relates to oxen. They both have equal rights and the area is similar to a public domain for keren. Thus, R’ Tarfon agrees that a tam is liable for only half. However, Rabbeinu Tam’s cannot make peace with this text, as he will now explain: Rabbeinu Tam emended the text as follows: The courtyard is not for this one and not for that one to bring in their oxen, neither of the partners may bring oxen into the courtyard, and only one of them may store his produce there. They may be partners, because they both have the right to live there and keep other household items in the courtyard. See Maharsho to previous Tosafot. This arrangement of the Braita satisfies our need to find an area that is considered a courtyard of the nizok in relation to shain and regel, but not for keren. For in regard to shain, which is liable only in ‘another’s field’,it is a courtyard of the nizok, because he did damage produce where the nizok had the exclusive right to store his produce there,** but in regard to oxen,** the classification of the damage is that it is **keren in a public domain, since they both did not have the right to be there.**¹ We should not preserve the text as it is written in manuscripts: That the courtyard is for this one and for that one for oxen, which implies that they both did have the right to keep their oxen in the courtyard, but only one had the right to keep his produce there,for if so, in regard to shain and regel the courtyard should not be considered a courtyard of the nizok, since each one of them has the right to bring his oxen in, as is evident earlier when the Gemara said that the Braita that says that one is exempt for shain and regel is speaking of when both had the right to bring their oxen into the courtyard. It is evident that if I may bring my ox there, I am not liable for the damage that it does. If the courtyard we are presently discussing is one where both partner’s may bring their oxen, how could one be liable for damaging the other’s produce?² Rather, we must emend the text as Rabbeinu Tam suggests that they both did not have the right to bring their oxen into the courtyard and that is why it is considered a courtyard of the nizok for shain and regel. Tosafot considers another way of interpreting the Braita: ולא בעי לאוקמא לזה ולזה לפירות ולא לשוורים And the Gemara does not want to interpret this fourth rule of the Braita as speaking of when this one and that one had the right to bring in produce and not oxen, where we said earlier that there is liability for shain and regel and that for keren one pays half for a tam and in full for a muad even according to R’ Tarfon, because as far as keren is concerned this is not the courtyard of the nizok. Because that would be interpreting the fourth section of the Braita, דלא כר' זירא -- not like R’ Zeira who says that one is not liable for shain and regel, since he has the right to keep his produce there the courtyard cannot be considered ‘another’s field’. The Gemara usually avoids taking sides in a dispute, when an alternative is available. Furthermore, the wording is not to be understood this way. The words of the Braita “not for this one and not for that one” are stressing the negative. If we say that they both do not have the right to bring in their oxen, but they both do have the right to bring in their produce, the situation is as positive as it is negative. If however, we say that both did not have the right to bring in their oxen, and one also did not have the right to bring in his produce, there is far more negative than positive and the negative tone of “not for this one and not for that one” is justified.

footnotes: ¹ Rabbeinu Tam holds that the rules of keren apply where both the damager and the nizok had equal rights to be in the area that the damage occurred. This is true of keren in a public domain where they were both permitted to be and of keren in a third party’s domain where they were both equally not permitted to be. Rashi may hold that if keren occurs in a place where the nizok was not allowed to be, even though the damager also did not have the right to be there, he is exempt. ² Rif, Rambam and Rosh all follow our text in the Gemara, that we are speaking of a place where both were allowed to bring in their oxen but only the nizok was allowed to store his produce. See תוספות תלמיד רבינו תם ור'א and אבן האזל הלכות נזקי ממון פ'ח סי' ח who suggest that when one has the exclusive right to store his produce in a courtyard, this precludes his partner from bringing in his oxen when the courtyard is being used for produce, and if he does bring in his ox, he is liable. His right to bring in an ox is limited to when the courtyard is not being used for produce. Whereas, when they both have the right to bring in produce and oxen, they both may use the courtyard for both purposes, regardless of who was using it first. Even when one put his produce in the courtyard first, the other partner may bring in his ox and he will not be liable for shain and regel. See אבן האזל הלכות נזקי ממון פ'ח סי' ח for greater clarification of this matter.

If that is so, [does the braita list] four [principles]? There are [only] three. The words ‘אי הכי – if so’ indicate that this question is asked only according to Raveeno’s solution to the Braita, where he explained that even the fourth rule of the Braita is in accordance with R’ Tarfon’s opinion. According to Shmuel’s approach, that the Braita was split and the fourth rule is not in accordance with R’ Tarfon, this question is unfounded. Tosafot clarifies: It is perfectly understood that according to Shmuel who interprets the Braita as follows: thatthe beginning, the first rule, is in accordance withR’ Tarfon and the conclusion, the fourth rule, is in accordance withthe Rabonon, therefore the conclusion, the fourth rule,is needed to exclude the opinion of R’ Tarfon. Initially, R’ Shimon ben Elozor, the author of the four rules, agreed with R’ Tarfon. Ultimately he favored the Rabonon and added the fourth rule as an expression of his final opinion in this matter.** However, according to Raveeno,** the fourth ruleis not needed at all. For in regard toshain and regel that this area is courtyard of the nizok can be understood from the first rule: inany place that is the domain of the nizok, there is liability for all, shain regel and keren. As previously explained, this case is considered the domain of the nizok as far as shain and regel are concerned because only the nizok is allowed to be there, so we know that shain is liable in this area. And that this is consideredkeren in a public domain can be understood from the third rule that says thatin a jointly owned courtyard and a valley, one is liable for keren as in a public domain. The jointly owned courtyard when both have equal rights to be in that area is considered as a public domain even though it is not actually a public domain. So too, a jointly owned area, where both do not have the right to be is considered a public domain, because they are equally not allowed to be there. As long as both the damager and the victim are equally allowed or not allowed to be in that place, it is viewed as public domain for keren as Tosafot explained earlier. According to Raveeno’s interpretation of the fourth rule, all the details can be derived from the other rules of the Braita and the Braita did not need to mention the fourth rule at all.