אוקימתות‎

לכבוד הרב מיכאל אברהם

שאלות בעניין אוקימתא

אני מתנצל אבל הרבה יותר קל לכתוב באנגלית

I gave a shiur this past week on the first Mishna in the third perek of Bab Kamma 27a-b. In the shiur I discussed the problem of okimta and your answer together with Menachem Fisch (whose answer is the opposite of yours)

Below is a summary of the sugya with my questions:

Mishna: If someone puts an obstacle in the public domain and a pedestrian either gets hurt or breaks the obstacle the one who put it in the public domain is responsible and the pedestrian doesn't pay even if he damaged the article.

Gemara:  The pedestrian should be the guilty party since he should have looked out

QUESTION #1 :  The question on the Mishna is not the usual one of a contradiction with another source but simply the gemara disagrees with the psak of the Mishna. What happened to the rule that Amoraim don't disagree with a Mishna? (see question 3)

The gemara then presents 3 okimtot to answer the question

#1 Rav – The Mishna talks when the person filled the entire public domain and so the pedestrian had no choice

#2 Shmuel – The Mishna talks at night when the pedestrian couldn't see

#3 R Yochanan – The pedestrian came from a corner and so couldn't see the obstacle

QUESTION  #2 – The first okimta is a fairly standard one and the answer that the Mishna describes a Platonic state is possible. However, the other two answers merely state that in the Mishna instead of two possibilities there is only one choice since the pedestrian was not a fault. In this case I would ask פשוטא?  There is no lesson in a Platonic state where there is no two sides. The whole point is to decide who is guilty when both sides are at fault. Hence, I don't understand the answer of a Platonic discussion for the last two okimtot

The gemara then presents a fourth Okimoto

#4 Rab Aba to Rav Ashi in the name of Rebbe  Ulla: The Mishna is to be taken literally that the one who puts the obstacle in the public domain is guilty. The pedestrian is not guilty because most pedestrians don't look where they are walking (As noted in the shiur they are looking at their smartwatch)

QUESTION #3 – According to the answer for okimtot that the gemara had a Mesorah here the last question disagrees totally with the earlier okimtot and takes the Mishna as is.

Note that the three okimitot are given by Amoraim of the first generation Rav, Shmuel, R. Yochanan while the opinion that rejects the okimtot is the last generation of Rav Ashi. Now the Mishna is dealing with the real world and not a Platonic universe. This seems to be a very fundamental disagreement on the use of okimtot.

Interestingly the SA (CM412) paskens like all 4 answers. Basically the SA paskens like the fourth answer that the one who puts the obstacle in the public domain is guilty. However, if he had permission to put the articles in the public domain he doesn't pay for damages. However, if one of the three okimtot happened then he doesn't have to pay.

Thus, even though the fourth answer rejects the okimtot and we pasken like the fourth answer nevertheless the SA accepts the 3 okimtot for the case that the obstacle was placed in the public domain with permission.

 kol tuv