meta: {"file": "/data/tomer/Sefaria-Export/txt_done/Talmud/Bavli/Commentary/Tosafot/Seder Nezikin/Tosafot on Bava Kamma/English/Tosafot, Translated by Jan Buckler..txt"}
text: Tosafot on Bava Kamma
  תוספות על בבא קמא
  Tosafot, Translated by Jan Buckler.
  
  
  Tosafot on Bava Kamma
  
  
  
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  [The] four primary categories of damage.There are places where the tanna does not use the word “הן” (there are), although it is implied and we understand that the Mishna is saying there are four primary damagers; nevertheless, the word is not mentioned, as in our Mishna, and in the Gemara in reference to the Braita of R’ Oshayo (4b) which says: there are thirteen primary damagers and in the Mishna (K’raisos 8b): there are four m’chusrai kaporo.1<i class="footnote">The מחוסרי כפרה – literally lack atonement - are those who require a sacrifice to be permitted to eat of the flesh of sacrifices. For example, after giving birth the mother must bring an offering to the temple so that she may eat of the sacrifices. She and a zov, zovoh and m’tzoro are the four מחוסרי כפרה.</i>And there are places where the Mishna does use the word “הן”, as in “there are four guards” (Shevuot 49a) and “there are four New Years” (Rosh Hashana 2a). Tosafot, in this initial version, doesn't offer any reason why the tanna sometimes uses the word “הן” and sometimes doesn't. In the Gilyon (a second version) there is an attempt to understand why the tanna sometimes uses the word “הן” and sometimes doesn't.(Gilyon: And if you should ask: Why doesn't the Mishna say: “There are” four primary damagers, as it says in Rosh Hashana (2a) “there are” four New Years? And one can answer: The Mishna is only coming to tell us that these four primary damagers are not like each other, they have different characteristics and one cannot be derived from the other. The Mishna is not telling us that these are the primary damagers, which would require the word “הן”. This presents a slight difficulty: because in the Gemara it is evident that the Mishna is presenting a number of primary damagers, as if to say these are the four primary damagers. This can be seen when the Gemara asks, and why didn't our Tanno teach those (the thirteen or twenty four primary damagers mentioned in the Braita)? The Gemara understands that the tanna is teaching us a list of primary damagers. Otherwise, he would not have asked why he doesn't list the others. The approach that Tosafot suggested that the tanna is telling us that the four primary damagers cannot be derived from each other is not open to the question: why doesn't he list the others? the tanna is not teaching us a list; he is merely telling us that these four cannot be derived from each other. Tosafot cannot resolve this problem and concludes: Therefore, it can be said: There are other places as well that the Tanno does not use the word “הן”, as we find in the Mishna about the four m’chusray kaporoh.)
  The ox and the pit. Why are the four damagers listed in this particular order? Tosafot elaborates upon Rashi’s explanation.Rashi (ד"ה השור והבור) explains: that in the order the four damagers were written in the Torah, the tanna arranged them in the Mishna. Keren appears in Parashat Mishpatim 21, 28.Bor appears in 21, 33.Maveh and hever will soon be discussed in this Tosafot.This is correct according to the one who says that the word shor in our Mishna is a reference to keren. There is another opinion that shor in our Mishna is referring to regel, which actually appears later in the Torah 22, 4, after bor.And even though according to the one who says that when the tanna mentions shor, it means regel, it is not in the order of the parsha, since regel is mentioned in Shemot 22, 4, - “and he will send his animal”, which is after bor (21, 33), this does not present a problem, because in any case, the title “shor” appears earlier in the parsha (21, 28), which is discussing goring by keren. That reference to shor is sufficient reason to list shor first in our Mishna, even though the shor our Mishna is discussing is regel.There is a dispute in the Gemara (3b) about maveh. Rav says that maveh refers to a person who damages. Shmuel holds that maveh means shain, an animal that damages by eating. How do these two opinions mesh with Rashi’s explanation that the Mishna follows the order of the Torah? If maveh is shain, there is no problem. Shain is mentioned in Shemot 22, 4, after bor Shemot 21, 33 and followed by aish (hever) in the next verse. However, Rav’s opinion that maveh means a person is problematic, as Tosafot now points out.And according to the one who says maveh is a person, even though it is written much later in Parashat Emor (Vayikra 24, 18), - “and one who destroys the life of an animal must pay”, which is speaking of a person who damages an ox, the tanna did not feel the need to teach it in the order of the parsha, the hever (aish) before the maveh, because the maveh is so distant anyhow. the tanna therefore prefers to list maveh in the order it will appear in the Mishna later, when the Mishna discusses the different characteristics of the damagers by saying “this one does not appear to have the same characteristics as that one”. In that sentence maveh precedes hever (aish) and that is why the tanna listed ‘a person’ before ‘hever’ in the first sentence of the Mishna.Rabbeinu Tam offers another solution to this difficulty, in line with the answer Tosafot said earlier when the question was raised, why is regel listed first? It appears in the Torah later. Tosafot answered that although regel is mentioned later the title shor appears earlier in keren. Rabbeinu Tam offers a similar solution to our present problem about listing a person before hever (aish).And Rabbeinu Tam explained that the title “person” appears before aish in the parsha, when the Torah says (Shemot 21, 27) - “if a man will steal an ox”, and that is one of the primary damagers, as is taught in the Braita in the Gemara.1<i class="footnote"> See שיטה מקובצת for various opinions who disagree with Rashi and Tosafot about the order that the tanna chose for our Mishna.</i>
  
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  [The primary category of] Ox is not similar to [the primary category of] Maveh. There are two possible interpretations of the Mishna’s statement:A) That shor is not as lenient (קולא) as maveh and therefore if the Torah wrote shor, maveh which has a greater leniency could not be derived from shor.B) That shor is not as stringent (חמור) as maveh and therefore if the Torah wrote maveh, which is more stringent, we could not derive shor which is less stringent from maveh.Tosafot will show that the Gemara holds that the first explanation is the correct one and how the Gemara knows this.The explanation is as follows: The leniency of shor is not as great as the leniency of maveh, (a) which means that maveh is more lenient and if the Torah informed us of shor we could not derive maveh from shor. This explanation is evident as the Gemara (4a) explains later,according to the one who holds that the tanna teaching shor means its keren, and maveh means its shain, because keren has intent to damage and shain does not have intent to damage. Shain is more lenient.Therefore if the Torah wrote keren which is not as lenient we would not be able to derive shain from keren, because it is more lenient than keren.We see that the first explanation is correct. The Gemara is clearly saying that if the Torah wrote keren we could not derive shain from keren because shain is more lenient.Elsewhere, we find that the Gemara’s meaning when using a similar expression is as in the second explanation; that the stringency of (a) is not the same as the stringency of (b).What is the difference in the meaning? How does our Gemara know that the intent of the Mishna is not the same as it usually is?And the explanation of our Mishna is not as it is in other places in the Gemara,where the Gemara many times says, (a) cannot be compared to (b), for there the meaning is that the stringent characteristic of (a) is not the same as the stringent characteristic of (b) and therefore it is not the particular stringencies that cause the ruling, rather it is a common characteristic that they both share which causes the ruling.1<i class="footnote">This type of language is generally used when the Gemara is attempting to derive a law using the system of בנין אב from two sources. The Gemara will say I want to learn (a) from (b). And the Gemara asks: How can you learn (a) from (b), (b) has a stringency that (a) does not have? The Gemara will then attempt to learn (a) from (c). The Gemara will once again argue: How can you learn (a) from (c), (c) has a stringency that (a) does not have? The Gemara will conclude: We see that the ruling is not dependent on the stringent characteristic of (b) because (c) does not have that characteristic. We also see that the ruling is not dependent on the stringent characteristic of (c) because (b) does not have that characteristic. The ruling must be dependent on some common characteristic of (b) and (c) and therefore (a) which shares that common characteristic, can be derived from (b) and (c).</i> The Gemara here deviated from the usual explanation, because the Mishna later mentions the more stringent item first, when it speaks of maveh and shain as compared to aish. The Mishna says: and they, maveh and shain, which are alive, are not like aish which is not alive. It is obvious there that the Mishna is stating that if would know about shain and maveh, I would not be able to derive aish from them, because aish has a greater leniency, namely, that it is not alive.
  And this and that in which there is a living spirit are not similar to the [category] of fire. Tosafot is going to analyze some oddities in the structure of the Mishna.a) When the Mishna discusses the comparison between shor and maveh, it does not mention in what way they are different. However, when comparing shor and maveh to aish the Mishna specifically points out the different characteristic.b) When the Mishna discusses the comparison of shor and maveh, the Mishna tells us that the inability to learn one from the other works both ways, shor is not like maveh and maveh is not like shor. However, when the Mishna discusses the comparison of shor and maveh to aish, the Mishna only points out that if we knew shor and maveh we would not know aish. The Mishna does not tell us the reverse, that if we knew aish we would not know shor and maveh.When the Mishna was comparing shor and maveh, the Mishna did not find it necessary to explain the stringencies of shor and maveh as it does here, when discussing the different characteristic of shain and maveh versus aish, because when comparing one primary damager to another primary damager, it is relatively simple to find a stringency that one has that the other does not, as opposed to a comparison of two primary damagers to one, which is a bit more difficult to find how the two (shor and maveh) both have a stringent characteristic that the one (aish) does not.The reason that the Mishna does not teach us the reverse,that aish is not like shor and maveh, and if we knew aish we would not be able to learn shor and maveh, as the Mishna did earlier, when it said the maveh is not like the shor, that is because the Mishna could not find a stringent characteristic that aish has, and shor and maveh both do not have.For if you argue that aish has a stringent characteristic, that another power is involved with it, i.e. the wind that causes the aish to travel and cause damage at a distant place, and it does not move of its own volition as does his ox, that is not a stringent characteristic. This can be seen from the Braita (9b) that lists all the various stringent characteristics of the primary damagers and does not mention that aish has a stringency that shor does not, that another power is involved with it.Tosafot will now quote another Gemara which seems to say that another power involved with aish, is in fact a stringent characteristic.And the Gemara which later says (3b, 6b) in reference to one’s stone or knife, which caused damage when they were carried away by the wind, In what way do they differ from fire, which is carried by another power and does not travel by its own volition? This description of fire as involved with another power seems to be a stringency. Tosafot explains: the Gemara means as follows, in what way do they differ from aish, where even though there is another power involved, it is reasonable that one is liable, because the aish is your possession and you are responsible to guard it etc, so too, one should be liable for damage caused by his stone or knife that was carried away by the wind, even though a second power is involved in causing the damage. The Gemara is saying that even though there is reason to be lenient when another force such as the wind is involved in creating the damage, we can learn from aish that even so the Torah holds one liable.Tosafot continues with this discussion of the symmetry of the Mishna. In the last sentence, the Mishna says that all the damagers are not like bor, because it is their norm to move and cause damage as opposed to the bor which does not move. There as well the Mishna does not say the reverse, that bor has a stringent characteristic that the others do not. Tosafot comments:And in the last sentence, when discussing bor, the Mishna could have said that bor is not like the others, and if the Torah wrote bor, I would not be able to learn the others, because bor has a stringent characteristic that it was initially created as a damager, whereas the other three serve a constructive purpose. However, the Mishna did not bother to mention that, since it had already interrupted the original symmetry of stating, that shor is not like maveh and the reverse maveh is not like shor, when discussing aish where he could not find a stringent characteristic that aish had and the others did not, as mentioned earlier in the Tosafot.If maintaining the symmetry is so important, the Mishna should have done it for as long as possible, even though it could not have been maintained throughout the Mishna because aish has no stringent characteristic that shor and maveh do not have. The Mishna could have first spoken about bor, and stated that shor, maveh and aish have a stringent characteristic, that it is the norm for them to travel and cause damage, which bor does not have. Then tell us, that bor is not like the others, because it has a stringent characteristic that the others do not have, it is initially created as a damager. The Mishna would have maintained its symmetry up to this point. Then the Mishna could no longer maintain its symmetry it should have said that shor and maveh are not like aish because they are alive. Tosafot now explains why the Mishna did not speak ofbor before aish.And the tanna did not want to teach bor before aish, which would have allowed him to maintain the symmetry for one more sentence, for if he had mentioned bor first, he could not continue, because aish can be derived from bor, as the Gemara (5b) says that all of the damagers can be derived from bor and any one of the others.1<i class="footnote">This is a process known as בנין אב (מה מצינו) from two sources. For example: we want to derive aish from bor. We say that bor is stationary, yet it is a damager; certainly aish which is not stationary should be a damager. We will refute the קל וחומר: Bor has a stringency that aish does not have. Bor was initially created to be a damager, while aish was not, bor has a greater stringent characteristic and you cannot derive aish from bor. We would then say, that we can prove our point from keren, which was not initially created to be a damager, and even so, it is a damager. We see from keren that a damager need not have the characteristic that it was initially created to be a damager. This is a rule derived from two sources, the initial קל וחומר from bor, and when faced with a refutation, we present keren to disprove the refutation. Following this system, the Gemara later says that all the damagers could be derived from bor and any one of the others.</i> As we say later in the Gemara (5b). the tanna wanted to be lengthy in order to make the Torah great and beautify it.2<i class="footnote">As we will see in the Gemara, we could derive all of the אבות from bor and any one of the others. However, the Mishna presented this structure of comparing the primary damagers to each other so that we can have a better understanding of the nature of the אבות, their leniencies and stringencies. The Torah is now greater in the sense that more text is necessary to bring out this message. It is more beautiful, because we gain a better understanding of the material. </i>Tosafot now turns to an entirely new issue. The Mishna has taught us the reasons that one of the damagers cannot be derived from the other. In each case the Mishna mentioned a stringent characteristic that one has and therefore the others could not be derived from that one. This indicates that if it were not for those characteristics we theoretically could derive one from the other. The basis of this system of deriving one damager from another is a דין, which means that there is no scriptural indication that this ruling is true; it is human logic that dictates it to be true. There are two methods:A) מה מצינו - mah matzeenu: a logical comparison. We say (a) is equal to (b), if (b) is liable to pay, (a) should also be liableB) קל וחומר - Kal v’chomer: a fortiori. We say that (a) is stronger than (b), if (b) is liable, then certainly (a) should be liable.There are differences of opinion about the use of these methods.There are those who hold that although we may establish rules and regulations based on these methods, we may not punish one who violates them. Some say, that this limitation applies only to capital punishment, others say that it applies to corporal punishment such as מלקות - lashes, as well. Tosafot is now going to examine that which emerges from our Mishna; that we could derive one damager from another and penalize the violator. We would require him to pay for the damage he has caused, based on either a מה מצינו or a קל וחומר. And there is a slight difficulty: It is understoodfrom our Mishna that we may compel one to pay money based on a דין,a מה מצינו or a קל. In the Mekhilta3<i class="footnote">The M’chilto is a collection of Braitas that expound the verses of the Torah. The collection of Braitas that explains Shemot is M’chilto.</i> we learned in a Braita, expounding the verse that teaches us about bor, the Torah says, if one will uncover a bor, or if one will dig a bor. Why did the Torah have to mention both? If one is liable for merely uncovering a bor, he should certainly be liable for digging a bor, the Torah didn't really have to mention that one is liable for digging. Rather the Torah mentions digging to teach you that we cannot compel one to pay money based on a din. This conclusion of the Mekhilta is a direct contradiction to our Mishna that says we could learn one damager from the other, if not for the stringent characteristics that each one has.Tosafot holds that there is definitely a contradiction here, but he wants to show us that our Gemara has an alternative explanation of that verse. If we accept the alternative explanation, then we have no source to teach us that we cannot obligate someone to pay based on a din.However, in chapter Haporoh (49b) the Gemara expounds on that verse to teach us another rule, that the underlying reason for one’s liability is the uncovering and digging, not his ownership of the damager. The verse is teaching us that the bor under discussion is in a public domain, where one who uncovers or digs cannot be liable because he owns the damager. He is liable for creating the bor. Another explanation of this verse is that it teaches us that if one, Reuven, digs a bor and then another one, Shimon, digs deeper, Shimon is liable. By adding to the depth of the bor, he has undone the action of Reuven
  
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  And according to Rabbi Eliezer, why does he call it a primary category? The Gemara is trying to determine the difference between an av and a toldoh, a derivative of the av. According to the Rabonon if one does an av and a toldoh at one time , he is only liable for one chatos, but according to R’ Eliezer he is liable for two חטאת קרבנות, if so, what is the difference between an av and a toldoh? Tosafot is suggesting that there seems to be a very simple distinction. When one violates Shabbat by doing m’lochoh intentionally, he is liable for capital punishment. In order to be subject to capital punishment one must be forewarned by witnesses at the time of the transgression. Tosafot will attempt to prove, that when one is warned, even when doing one of the toldos, the witnesses must inform him of which av this is a toldoh. If so, then the difference between an av and a toldoh is that the warning must always name the av that he is violating even when doing a toldoh.If you ask: Let us say that the difference between an av and a toldoh is as far as the warning is concerned, because one has to be warned, even when doing a toldoh, from which av this toldoh is derived? As the Gemara says in Chapter Tolin (Shabbat 138a), one who put wine through a strainer, for which m’lochoh do we warn him? Rovo says it is a derivative of borair, selecting R’ Zeira says it is a derivative of m’rakaid, sifting. We see that the witnesses must mention as they warn, from which av the toldoh is derived. Even according to R’ Eliezer there is a great difference between avos and toldos. At the time of warning one must always identify the av from which the toldoh is derived.Tosafot will give us an alternative understanding of the Gemara in Tolin (Shabbat 138a) that does not require that the av be mentioned each time one is warned for violating a toldoh. And we can answer: The explanation of the Gemara’s question is as follows:There is no question, that if one is warned not to do the toldoh that he is liable. The Gemara was only asking,if the witnesses warned by mentioning an av, instead of the toldoh, which av would be the correct one, that would make him liable? Rabbah says he must be warned that he is violating borair, but if he was warned that he is violating m’rakaid he would be exempt.Since the warning was technically incorrect, he may have assumed that the witnesses were ridiculing him, and he is exempt.However, if they warned him by saying that he should not strain, without mentioning any av, he is liable.1<i class="footnote">Some question this answer of Tosafot. For even if we were to assume that Tosafot is correct, and the Gemara in Tolin, is not insisting that the witnesses must always cite the av, even so, the Gemara does say that if you did mention the av it is a valid warning. So the original question remains, why didn't the Gemara answer that the difference between an av and a toldoh is that, if you mention the proper av when warning, the violator is liable, even though they did not cite the toldoh at all. Whereas, if you cite a toldoh other then the actual one he is committing, the violator is not liable. There are those who answer, that if we hold that an av is not required when warning, then there is nothing special about the use of an av when warning. The reason the use of the av is effective is only because of the similarity between the av and the toldoh. Hence, if witnesses cited a toldoh while the violator was committing an av, he would also be liable if the toldoh cited is similar to the av. There would not be any difference between an av or a toldoh.</i>In this first answer, Tosafot has said that the Gemara quoted to prove that one must mention the av when warning doesn't really prove that point. Tosafot now answers the question, even if we should assume that our initial understanding of the Gemara in Tolin is correct, and the Gemara does say that one is always required to cite the av, even when warning one who is committing a toldoh. And there is an alternative solution: That, is exactly what our Gemara means when it answers, that which was important when constructing the Mishkan is called an av, and it is required to warn one who is committing a toldoh with the name of that av.(See Maharam for a thorough analysis of the various approaches to the next sentence in Tosafot. We will adopt the Maharam’s approach, that the word ועוד is a copyist’s error and should be deleted).Maharam explains that Tosafot has a problem with his second answer. If Tosafot is correct that one does have to mention the av at all times, and that is the intention of the Gemara that says, that which was important in the Mishkan is considered an av and must therefore be specifically mentioned by the witnesses at the time of the warning, why does the Gemara have to tell me the criteria of an av? The Gemara should have simply answered that we have to mention the av when warning. The criterion of an av is not the issue at all. Tosafot sets out to prove that it was necessary to mention the criterion of an av here and it would not have been sufficient for the Gemara to say that one must include the av in a warning.The Gemara in Shabbat (73b) is discussing one who grafts a tree.According to Tosafot (ד"ה משום) understanding of that Gemara the conclusion of the Gemara is that if the witnesses warned the perpetrator by mentioning either the av of sowing seeds or planting a sapling, it is an effective warning. Now, in the Mishna that lists all the avos planting and not sowing is mentioned. It would seem that it is not necessary to mention the av in the warning, because we see that even if the witnesses mentioned planting, it would be an effective warning. That is why, Tosafot says, the Gemara did have to mention the criterion of an av. This is to demonstrate that planting a sapling is also an av even though it is not specifically mentioned in the list of avos. Once we know the criteria, we realize that a particular activity may be an av despite the fact that it is not on the list of avos.Tosafot in anticipation of the question, why did the Gemara have to mention the criteria of an av, the Gemara should have simply said that one must use an av when warning?For we find that if one commits a toldoh of planting a sapling, such as grafting a tree, or of cooking, it is not necessary to mention the av, sowing or baking,2<i class="footnote"> Sowing seeds and planting a sapling are almost identical, and they are both considered avos. The Gemara in Shabbat says that the reason the Mishna list sowing and not planting is because the Mishna chose to list the avos according to what is necessary to produce bread. The same is true of the relationship of baking and cooking. Both are avos, even though only baking is listed. Baking is what pertains to the production of bread. Tosafot is pointing out that planting and cooking are both avos, even though they are not listed among the avos.</i> and if the witnesses mention in their warning, the toldoh planting or cooking, the perpetrator is liable. We see from this ruling that planting a sapling and cooking have the status of avos because they fit the criteria, and even so, the Mishna does not mention them in perek k’lal godol (Shabbat 73a).
  Thus we read: that which was [a] significant [labor] in the Tabernacle, [the Sages] characterized [it as] a primary category, [and] that which was not [a] significant [labor] in the Tabernacle, [the Sages] characterized [it as] a subcategory. Tosafot presents two different versions of the text. On the surface it appears that there would be some difference between the two texts. However, Tosafot in Shabbat (96b) says that there is no difference between the two texts quoted here in Bobo Kamo. See Maharshal, who inserts a third text into our Tosafot, because of this problem. We shall learn the Tosafot according to Maharam, who suggests that there is a difference between the two texts quoted here by the Tosafot. According to Maharam’s understanding we must say that the Tosafot in Shabbat and Tosafot here do not agree about the interpretation of the first text.This is our text: That type of work which was significant in the construction of the Mishkan is called an av, that type of work which was not significant in the construction of the Miskon is called a toldo.And according to this text, it comes to exclude some types of m’lochoh that were not significant even though they were used in the construction of the Mishkan, they are toldos and not avos, even though they were used in the construction of the Mishkan, as we find in Perek Bameh Tomnin (Shabbat 49b): They, the Levites who transported the Mishkan, raised planks from the ground to the wagons, which is hachnoso, bringing in, from the ground which is a public domain to the wagon which is a private domain, as opposed to hotzo’oh, carrying out from a private domain to a public domain. Carrying out is an av, bringing in is a toldoh. And handing from one wagon to the next, as the wagons are arranged along the public domain, is also a toldoh. These two are toldos even though they were used in the transport of the Mishkan and that is because they were relatively insignificant. We see that for a type of labor to be considered an av it is not enough for it to have been used in the transport of the Mishkan, it is required that it was significant in the Mishkan.At this point, it appears that in order to be classified as an av there are two qualifications,a) It was used in the construction or the transport of the Mishkan.b) That it was a significant m’lochoh. We will reserve judgment on this conclusion, as will be explained later. See note1<i class="footnote"> This is very puzzling. It seems that Tosafot is saying that according to this, second text, two criteria are required, but according to the first text, two criteria are not required only one. This contradicts our simple explanation of the first text of Tosafot and is the basis of the various disagreements about the proper understanding of Tosafot. Maharam suggests that our Tosafot holds that according to the first text, there is actually one criterion, significance. Were we to find a m’lochoh that we would consider significant, even if it were not used in the construction of the Mishkan, that would be an av. According to this explanation of Tosafot we are compelled to say that when the Gemara mentions, that which was in the Mishkan, it does not mean to exclude a type of work which was not in the Mishkan, it means that, even though it was used in the Mishkan, it must be significant in order to be classified as an av. Having been used in the Mishkan is not sufficient to be classified as an av. Ultimately; significance is the only criteria for classification as an av.</i>There are those who have the following text: Those types of labor which were in the Mishkan and are significant are called an av, those types of labor which were not used in the construction of the Mishkan and are not significant are called a toldoh. According to this text, it must be said, that two criteria are required, used in the construction of the Mishkan and significance, but if the type of labor is significant, but was not used in the Mishkan, or the reverse, it was used in the construction of the Mishkan, but was insignificant, it is a toldoh.1<i class="footnote"> This is very puzzling. It seems that Tosafot is saying that according to this, second text, two criteria are required, but according to the first text, two criteria are not required only one. This contradicts our simple explanation of the first text of Tosafot and is the basis of the various disagreements about the proper understanding of Tosafot. Maharam suggests that our Tosafot holds that according to the first text, there is actually one criterion, significance. Were we to find a m’lochoh that we would consider significant, even if it were not used in the construction of the Mishkan, that would be an av. According to this explanation of Tosafot we are compelled to say that when the Gemara mentions, that which was in the Mishkan, it does not mean to exclude a type of work which was not in the Mishkan, it means that, even though it was used in the Mishkan, it must be significant in order to be classified as an av. Having been used in the Mishkan is not sufficient to be classified as an av. Ultimately; significance is the only criteria for classification as an av.</i>
  
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  For concerning the primary category [of ritual impurity], it impurifies a person and vessels.1<i class="footnote"> A person who comes in contact with the source of tumoh becomes tomay and a vessel that comes in contact with an av becomes tomay. This does not mean that the person who became tomay through contact with an av can then bring tumoh to vessels. This is the correct text, and not the text “a person and clothing”.</i>For that expression implies that the person becomes tomay and causes his clothing to become tomay as he is wearing them. This is not true in the case of a dead rodent, semen and one who has been in contact with a corpse. They cause a person to become tomay, he becomes a Rishon, a first level of tumoh, but the clothes he is wearing do not become tomay. Since the wearer is only a Rishon and not an av, his clothing which are treated as vessels do not become tomay. As the Gemara says vessels (and clothing) can only become tomay from an av.2<i class="footnote">The situation to which Tosafot is referring, where the clothing do become tomay is an exception, and they only become tomay if the wearer is presently in contact with the source of the tumoh. For example, a person is in contact with a bed that was slept on by a zov or a needoh. While he is in contact with the bed, his clothes become tomay. When he separates from the bed and puts on another set of clothing they do not become tomay. </i>The Gemara has stated that an av of tumoh does not make its toldoh as itself. The toldoh has a reduced level of tumoh. It can only cause tumoh to foodstuff, but not to people and vessels. Although this is generally true for an av coming in contact with a person and with most utensils, there is an area where this is not true and the utensil will have a degree of tumoh as great as the av.And if you ask: There is a tomay mais, a person who came in contact with a corpse, who causes a metal vessel to have the same degree of tumoh as the tomay mais himself, for we have a rule that the sword is the same level of tumoh as the corpse.3<i class="footnote">This is based on a verse in Parashat Chukas where the Torah speaks of a corpse as חלל חרב chalal cherev, literally the corpse of the sword. Chazal understood that this expression is used to teach us that the metal sword has the same degree of tumoh as the corpse. According to most Rishonim including Tosafot, this means that any metal vessel that comes in contact with a corpse or one who has been in contact with a corpse has the same degree of tumoh as the source from which he received the tumoh. The Rambam has a different understanding of this rule.</i> We see that there is a toldoh of tumoh which has the same level of tumoh as the av. Tosafot points out that although the statement is generally true, there still is a difference between a tomay mais and the metal vessel with which it comes in contact. And we can answer: the metal vessel is still not entirely like the tomay mais, because that metal vessel will not cause a second metal vessel to become tomay, as the tomay mais does, as Rabbeinu Tam deduces at the beginning of Masechet Oholos.
  
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  The Sages taught: three primary categories. The Gemara asked a question: do the derivatives of damagers have the same laws as the avos? Now, the Gemara introduces a lengthy Braita that explains all the avos of shor and how they are derived. It seems as if the Gemara forgot to answer the question. Tosafot explains:The Gemara interrupted its flow by citing this Braita, so that eventually he can explain, using this Braita as a basis, which are their toldos that are not like the avos, of which Rav Papa spoke.
  
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  But with [a horn] attached, say [that in] all [cases the legal status] is [that of] a forewarned [ox]. If we only had a verse that spoke of an unattached horn, we would say that the difference of tam and muad applies only to an unattached horn,but when goring with an attached keren, I would say it is totally,1<i class="footnote"> Totally is the literal translation. Here it is used in reference to time. It is always a muad.</i> even the first time, muad. Tosafot tells us the practical difference that would result from what I might have thought: That one must pay full payment even the first time. This requires some explanation. At this point in the Gemara full payment for an attached keren is not mentioned in the Torah. That I might have thought that there is reason to pay in full, is not an adequate reason to require full payment. There must be some means of deriving a new rule, to require a payment that is not mentioned in the Torah. As we have already seen in Tosafot (2a ד"ה ולא) the Gemara later (5b) discusses the possibility of learning one av from the other. It is that Gemara that Tosafot uses to search for a source for the new ruling that an attached keren must make full payment.The Gemara there concludes that all of the avos could be known, had the Torah only written bor and one other av. The Gemara there goes on to explain why the Torah did in fact write all of the Avos. There is one exception, keren, which may not be able to be derived from bor and one of the others. The Gemara says that the derivation of keren depends on a dispute among the amoraim. One holds that we could not learn keren from the other avos because all the others are initially muadim, it is usual for them to damage, whereas keren is not. It is therefore less likely to be liable, and we therefore cannot derive keren from the others. There is a second opinion there, that keren is more likely to be liable than the other avos, because of all the avos, it is the only one that harms intentionally. This amoro views the characteristics of keren as more likely to be liable than the others, so the others can be used as a source for keren. Tosafot will now show us how our Gemara which says that I would think that an attached keren should initially be a muad should be viewed in light of the Gemara on (5b).And if you ask: From where would we derive that an attached keren makes full payment?Tosafot suggests two possible sources for the attached keren, first: if from the unattached keren by a kal v’chomer and say that if the unattached keren is liable then the attached keren should certainly be liable? Then it should be sufficient2<i class="footnote"> One of the rules of kal v’chomer we will learn about later in the Masechet is dayo דיו, it is sufficient to establish a new financial obligation with the kal v’chomer, but we cannot create a greater financial obligation based on a kal v’chomer that uses a lesser obligation as its source. For example in the case we are discussing, if we were to learn attached keren from unattached keren, which pays only half, we cannot conclude that an attached keren should pay more than half. That would be creating a greater payment from a lesser payment and kal v’chomer cannot do that.</i> to give it the rule of an unattached keren and it should only pay half. The second possible source for an attached keren: If you want to learn attached keren from the other avos, as the Gemara says on (5b) that all the avos could be derived from bor and one of the others, that makes sense according to the one who says that keren is stronger than the other avos and is more likely to be liable, because keren has intent to destroy, and even keren can be derived from the other avos, as Rabbeinu Tam has explained that the opinion referred to on (5b) as saying keren is stronger, is actually the one who is mentioned later on (15a) as the one who holds that half payment of keren is a financial obligation, for he holds that ordinary oxen are not assumed to be guarded. That means that we cannot assume that they will not gore others and that there is no need to take measures to prevent them from goring. Rather, we must anticipate the possibility that they might gore, and one is responsible to prevent them from doing so. When he does not take those measures, he is liable for not fulfilling his responsibility.According to this opinion the likelihood of attached keren damaging is no less that the other avos and we could derive the attached keren from the other avos. As opposed to a financial obligation because of his negligence of not guarding his oxen to prevent them from goring. The one, who holds that half payment is a fine, believes that essentially one need not take precautions to prevent oxen from goring. The torah’s insistent on half payment is a fine, not a financial obligation. The differences between the nature of the obligation, financial or fine will be discussed later in the Gemara. However, according to the one who says that half payment is a fine,3<i class="footnote">As opposed to a financial obligation because of his negligence of not guarding his oxen to prevent them from goring. The one, who holds that half payment is a fine, believes that essentially one need not take precautions to prevent oxen from goring. The torah’s insistent on half payment is a fine, not a financial obligation. The differences between the nature of the obligation, financial or fine will be discussed later in the Gemara</i> because he holds that ordinary oxen are assumed to be guarded, and it is not necessary to take precautions to prevent oxen from goring, an attached keren cannot be derived from the other avos, as the Gemara says later on (5b), if you put bor together with any one of the other avos, the other avos could be derived from the combination,4<i class="footnote"> See Tosafot 2a, ד"ה ולא, note 1, for an explanation of how any of the avos can be derived from a combination of bor and one of the others. </i> with the exception of keren, because one can refute the attempt to learn it from the other avos by arguing that it is not a fair comparison, since all the other avos are initially muadim, which means that it is the norm for them to cause damage as opposed to keren, which is assumed to be guarded, and not likely to cause damage.We are now faced with the problem of understanding how according to the one who holds that half payment is a fine, our Gemara says that I would say that an attached keren is fully liable? There seems to be no source for such a conclusion.Tosafot question is based on the understanding that when the Gemara says “I would say” that attached keren pays in full, is that the conclusion would be correct. Thus, Tosafot has attempted to show why that conclusion would in fact be correct. In Tosafot solution, he will say that this understanding of “I would say” is not necessarily so. “I might say” can mean that I might erroneously say.And one can answer: That according to the one who says half payment is a fine, and that ordinary oxen can be assumed to be guarded, that which the Gemara says: but as a far as an attached keren, I might say that it is initially a muad and pay in full even the first time it damages, do not mean to say that a special verse is actually needed to teach me that attached keren is not a muad, and that if not for the verse I would correctly conclude that an attached keren is required to make full payment.If one were to follow the regular systems of deriving one av from another, one could not logically reach the conclusion that an attached keren must make full payment, as we have already explained in Tosafot question. Rather, what is meant is the tanna needed to teach us by citing proof from a verse, that an attached keren as well is included in the term “goring”, so that you might not erroneously conclude that the term “goring” is limited to only an unattached keren, such as the iron horns of Tzidkiyah, but with an attached keren, it is initially the norm for an ox to damage, ror.and we could learn from bor and one of the other avos that attached keren is initially liable for full payment. To avoid making such an error the Braita cited the verse of “the horns of a r’aim are his horns”, with them he shall gore etc. This shows that goring with an ordinary attached keren is included in the term goring. There is no room for a possible error.
  
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  And the Torah teaches us, in passing, a concept. By using different verbs to describe the goring of a person as opposed to the goring of another animal, the Torah is teaching us that there is an inherent difference between killing a person and killing an animal. A greater effort and viciousness is required to kill a person. Therefore if an animal is muad to kill people, it is automatically muad to kill animals, but if the animal is muad to kill other animals it is not muad to kill people.Tosafot points out that there seems to be a Gemara later that contradicts our conclusion. On (37a) Rav Papa clearly says that an animal that is muad to kill people is not muad to kill animals. Tosafot will attempt to reconcile this apparent contradiction.And even according to Rav Papa who says later in Shor Shenogach Daled V’hay (37a) that a muad to kill people ordinarily is not muad to kill animals,which seems to contradict our Gemara and the lesson taught by the Braita,that is only when he killed only three people, by doing that he does not become muad to kill animals, but if he gored a person, an ox and a donkey which are three species he becomes muad for all including people.However, if he gores an ox, a donkey and a camel, he does not become muad for people, even though he is muad for all animals, even according to Rav Papa as the Gemara says there (37a). That according to Rav Papa an ox who killed three different animals is a muad for all animals. The lesson of the Braita is still in effect, animals are more readily killed than humans. Tosafot offers a second solution to this contradiction:And R’ M’nachem explained that the Gemara means to say as follows: An animal that is muad for people, who was a muad for everything including animals, and he retracted from animals, he saw an animal three times and did not attack it, but he remained a muad for people, there was no evidence that he retracted from killing people, remains a muad for animals, for the retraction from killing animals is inconclusive, as long as he remains a muad for people.However, a muad for everything, people and animals, who retracted from killing people, is no longer muad to kill people, for his retraction from killing people is a retraction. According to this answer as well, we see that an animal is more likely to kill animals than humans, therefore his retraction from killing animals is inconclusive as long as he remains muad for people, but his retraction from killing people is a retraction even though he remains a muad for killing animals.
  
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  As one who consumes with the tooth. Why is tooth referred to as golol? Rabbeinu Chananel explains that the word golol is related to tooth as we see in Ezra 6, “rows of marble stone.” We see that golol is used to describe marble. For a tooth is similar to marble stone. We therefore translate “as the golol consumes”- as the tooth consumes. The word y’vaer is used to describe the activity of the tooth, so too, the verse in the Torah u’vee’air refers to the activity of the tooth.
  
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  Where the object is not completely destroyed. Tosafot is searching for an example of non-total destruction. Rashi explained: that the case of not totally destroying the object is speaking of an instance where the animal ate some of the early growth of the produce, which will grow back, but it will not be as fine a quality as it would have originally been, had the animal not eaten of the early growth.And this is difficult: For what the animal ate actually is totally destroyed, for the owners could have reaped what the animal ate.To put Tosafot objection in a more understandable light: Let us imagine that an ordinary plant will grow to a height of twelve inches. The animal ate some of it as it was growing. He consumed three inches of the growth. The plant will now only reach a height of eleven inches. The landowner could have taken those three inches himself and used them for animal fodder. Tosafot sees the eating of those three inches as total destruction of those three inches. They could have been taken by the landowner and they are no longer here. That the plant will continue to grow does not diminish the fact that those three inches are no longer in existence. Rather, one should say that the case of non-total destruction is when the animal soiled produce for its enjoyment.See Rashi &amp; R’ Akiva Eiger.Sometimes an animal rolls in fruit as a way of frolicking or to scratch its hide. This reduces the value of the produce, but what is missing is not something that the owner could have removed and benefited from before the animal soiled the produce.This definition of non-total destruction presents another problem.What emerges from Tosafot is that any situation that the animal ate produce would be one of total destruction. The only situation of non-total destruction is when the animal soils the produce as a source of enjoyment. Since the Gemara has a special verse to include non-total destruction, we must say that soiling the produce is spoken of in the Torah. If so, why is that not considered an av in its own right? Tosafot addresses this problem:Even so, that the Torah speaks of non-total destruction, which can only mean the animal soiling produce for its enjoyment, the Gemara later refers to soiling the produce for its enjoyment as a toldoh, because the simple meaning of the verse that speaks of shain, is discussing eating, which totally destroys.1<i class="footnote">Perhaps this is why Rashi has another view of the matter. Rashi did not want to accept the fact that since the simple meaning of shain is eating, soiling is not thought of as being mentioned in the Torah. Rashi holds that according to this approach soiling should be an av. The alternative is to say, that the Torah doesn't even allude to soiling and the non-total destruction comes about by eating as does totally destructive shain. In the face of Tosafot question, we must say that total destruction means that the plant the animal ate is totally destroyed and will not produce anything more. Non-total destruction is when the plant will continue to exist, but will produce less than it would have initially produced.</i> 
  And where the object is completely destroyed. The Gemara answered that if we did not have any indication that ושלח refers to regel we would say that both ושלח and ובער refer to shain. One verse is discussing shain that totally destroys and one verse is discussing shain which does not totally destroy. It is fairly obvious that shain which totally destroys is more likely to be liable. Therefore Tosafot asks:And if you ask: Let the Torah write ,ושלח ,ושלח which refers to non-total destruction, and it would not have to write ובער, which refers to total destruction? Once we know that one is liable for non-total destruction, then by kal v’chomer we understand that he is liable for total destruction.1<i class="footnote">This question is actually asked by Rashi. Rashi answered, that if we had only one verse dealing with shain, we would say that it refers to the more likely shain, which is total destruction, we would then have no source for non-total destruction. It is only because we have a second free verse that we say that this second verse refers to non-total destruction. Tosafot obviously disagrees with Rashi’s explanation. Perhaps Tosafot holds that inherently there should be no difference between totally destructive and non-totally destructive shain. In either case the victim is losing money. Why should it make any difference if the animal did it in a way that is totally destructive or non-totally destructive? It is only because the Torah uses the word ובער - u’vee’air which by definition means total destruction that we would conclude that only totally destructive shain is liable. However, if we only had the verse, ושלח which can mean both forms of shain, it would not dawn upon us to say that there might be a difference.</i>And one can answer: Had the Torah used the word ושלח to teach us that shain is liable, we would say that one is only liable if the animal was sent by its owner and not if it went on its own, as the Gemara says later.
  
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  [It is] similar to trampling. The Gemara asked: Now that we have come to the conclusion that ושלח refers to regel and ובער refers to shain, how do we know that shain, which is not totally destructive is liable? The Gemara answered that we know this because the Torah has compared shain to regel, since they are both in the same verse and just as regel is liable for non-totally destructive damage, because regel is inherently non-totally destructive, so too, shain is liable for non-totally destructive shain.And if you will ask: Let us say the reverse, that just as shain is liable only for totally destructive shain, so to, regel should only be liable for totally destructive regel? For that which we usually say when faced with the choice of making a comparison which will result in a stringent ruling or a lenient ruling, that we choose the stringent ruling, that is only in matters pertaining to the violation of prohibitions,1<i class="footnote">This term generally refers to such matters as whether it is permitted to eat a certain food, or the requirement to perform a mitzvah.</i> but not in financial matters.2<i class="footnote">There are two distinct approaches to understanding Tosafot question. Some are of the opinion that Tosafot understood that choosing the stringent ruling falls under the general rule that when in doubt in matters pertaining to Torah law we must be stringent. So too, when faced with a choice of understanding that a היקש, a comparison, may be teaching us to be stringent or lenient we must choose the stringent because this too, is a doubt in matters of Torah law. According to this approach, for any conclusion that we reach as a result of this rule, we would not give lashes or any other punishment. The truth of the issue whether the topic under discussion is permitted or forbidden remains in doubt. We only give lashes when we are certain that a person violated Torah law. If there is any doubt, we may not punish the violator with lashes. There is a second approach to Tosafot question. Even in the question, Tosafot was aware that ruling to the stringent side is a part of the system of היקש and any ruling established as a result of this system is considered to be definitely prohibited and one who violated the ruling would be given lashes. Tosafot raised the question in our case, because we are dealing with money matters. In financial matters there is no true lenient or stringent side of a doubt. What is lenient for one side of the dispute is stringent for his opponent. For example: If we rule that non-total destruction is included in shain that is stringent for the damager and lenient for his victim. If we rule that it is not included in shain that is lenient for the damager but stringent for the victim. It is only here that Tosafot raised the question that perhaps we should not rule. according to the stringent side.</i>Tosafot assumes in his question that choosing the stringent side is only in order when dealing with prohibitions of the Torah not with financial matters. In his answer we will discover that this is not so: And Rabbeinu Tam said: That this, choosing the stringent side, is a method of the Torah, there is no difference whether we are dealing with matters of prohibitions or financial matters.3<i class="footnote">This answer makes sense according to the first approach discussed in the previous note. According to the second approach, some further explanation is necessary. See Rishonim and Acharonim on this matter.</i>
  
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  “And the teeth of animals I will send forth against them.” (Deuteronomy 32:24) Generally the word בהמה refers to domesticated animals, such as cattle and sheep. חיה refers to non domesticated animals, such as lions and bears.We have learned that the av of shain is when an animal destroys my neighbor’s crops by eating them. That is described by the Gemara as:A) There is no intent on the Animal’s part to be harmful.B) It is enjoying and benefiting from the damage.Tosafot will now point out that the shain that the Torah speaks of in Parashat Haazinu, is speaking of a different form of shain, where the animal does have intent to harm and has no benefit from the damage it does. If so, how can the Gemara say that the shain of eating can be derived from the verse “and the tooth of animals I will send against them?” Even though we say elsewhere, (sifrai Parashat Haazinu) that the animals referred to in this verse will be domesticated animals, that have poison like a snake, that will bite and kill, which is biting - a toldoh of keren.This is not the av of shain that the Gemara is discussing, where the animal eats for its pleasure, not to harm its victim. Why does the Gemara say that the ושלח refers to shain as can be seen from the verse in Haazinu, which is speaking about shain that is a toldoh of keren and not ordinary shain?Even so, the verse is also speaking about wild animals, that pounce on their prey and eat the prey to satisfy their hunger,which is a toldoh of shain, as the targum translates the verse, the tooth of בהמות, as the tooth of wild animals. This translation is correct; even though the verse is speaking about domesticated animals, because חיה is included in the word בהמה.As far as non-domesticated animals are concerned, when they attack humans in order to eat them, that is ordinary shain, since their intent is for their own benefit, their need for food. The verse in Haazinu is actually speaking of two types of shain, ordinary shain and shain which is a toldoh of keren. Since the posuk uses the word אשלח, we see that ושלח, which is of the same root, refers to ordinary shain as well as ‘biting’ which is a toldoh of keren.
  
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  It is necessary, [as it] could enter your mind to say [that] this matter applies only where he sent [it].The Gemara conceded that both avos, shain and regel could be derived form the single phrase ושלח, however we would only know that one is liable if he sent his animal to destroy his neighbor’s field. The Torah therefore wrote ובער to tell us that even if the animal strays into a neighbor’s field and damages either by shain or regel, the animal owner is liable. This is a departure from the Braita’s original explanation of the verse that ושלח speaks of regel and ובער is discussing shain.Initially the Gemara asked why the verse “as the golol consumes” was cited, we could have arrived at the conclusion that ובער refers to shain by the process of elimination. The Gemara deflected that contention by saying that if we did not have the verse “as the golol consumes” to identify ובער as shain, we would conclude that ובער also refers to regel and it is teaching us that even when the animal strayed on its own into a neighbor’s field and was not sent there, its owner is liable. And if you ask: We should now ask, that which the Gemara asked earlier, when analyzing the Braita that cited the phrase “as the golol consumes” to prove that shain is an av: The reason that we know shain is an av is because the verse writes “as the golol consumes”, golol refers to tooth, so we see that the term “he will consume” refers to damage by tooth, otherwise we would not know that shain is an av.But if not for that verse, you would not know that ובער is referring to shain. But what would you say it, the verse, is about if not shain?This was the Gemara’s original question about this statement of the Braita. Now, the question surfaces once again. Since we now know that shain can be derived from ושלח, why did the Braita have to cite the verse “as the golol consumes” to prove that shain is an av. Earlier the Gemara answered that if we did not have the verse “as the golol consumes”, we would say that the phrase ובער is needed to teach us that even if the animal strayed on its own one is liable, and I would not know that shain is an av. That answer is no longer viable because now shain is not derived by the process of elimination, but by a positive teaching that ושלח refers to shain and ובער comes to teach us that even when an animal strays on its own into a neighbor’s field, its owner is liable.And now, that we have seen that ושלח can be a source for shain, we cannot answer as we did before, that without the verse “as the golol consumes” we would not be able to derive shain. It definitely can be derived from ושלח. That answer was viable when we were asking that without any verse to teach us that ובער refers to shain we would have to come to that conclusion by the process of elimination, but now that we have a positive source from which to learn that shain is an av we must once again ask the question, why did the Braita cite the verse “as the golol consumes”?Tosafot says: We must now take a different view of the Braita. Our original way of understanding the Braita is that the Braita means, that this method of expounding the verses involved is the only way that we might arrive at the proper conclusion, that there are two avos, regel and shain. Tosafot now suggests, that perhaps the Braita, does not mean that at all: And one can answer: That the Braita is saying as follows: That if the verse had not written ושלח, from which we now see that we can derive both shain and regel, we would have learned that shain is an av from the verse “as the golol consumes”. The Braita is only saying that this is one possible way of learning that shain is an av. It is not saying that there is no other possible way to derive shain.1<i class="footnote">In summation Tosafot may be understood as follows: The Gemara’s original question was, why do I need any verse at all to teach that ובער refers to shain? By the process of elimination we would know that ובער refers to shain. The Gemara answered that the process of elimination would not be adequate. Without a verse to identify ובער as shain, we would understand that ובער also refers to regel, but comes to teach us that even if the animal went on its own volition the owner is liable. Tosafot now raises the question again, if I have ושלח to teach me that shain is liable why is “as the golol consumes” needed? Tosafot now answers: that deriving shain from ושלח is a viable way of arriving at the conclusion that shain is an av. However, this too, is dependent on introducing another verse, “and I will send the tooth of b’haimos against them”, which teaches that ושלח refers to shain. If so, there is no real difference whether the Braita tells us the system of learning shain from “as the golol consumes” or from “and I will send the tooth of b’haimos against them”. In either case I must introduce a new verse to understand that shain is an av. This perhaps what Tosafot means when he says that the format of the Braita is “if it had not written ושלח”, which would require the clarification of “and I will send the tooth of b’haimos against them”, we could learn that shain is an av from “as the golol consumes” which elucidates ובער. Either derivation is acceptable. See sheetoh m’kubetzes where some say that there is a definite advantage in the system the Braita suggests, which is to derive shain from ובער and “as the golol consumes”.</i>One may wonder is this an acceptable way of explaining a Braita? Tosafot finds a precedent: And we find that the Gemara uses this type on solution to solve the difficulty of understanding a Braita, at the beginning of perek Aizehu Neshech (Bovo M’tzeeo 61a).2<i class="footnote">The Braita there presents a גזירה שוה to establish certain rules about the laws of interest. The Gemara questions the need for the גזירה שוה and concludes that the Braita meant that if there had not been verses to prove this point, we would do so by a גזירה שוה. There too we see that the Braita spoke of an alternative way of discovering the halochoh despite the fact that the halochoh can be learnt from a verse.</i>
  
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  Neither ten nor nine are written. The Gemara stated that on the surface it appears that there is no mention, whatsoever, of a distinction between, a ten tefachim bor and a nine tefachim bor. Rashi on 50b in his explanation of the Mishna there says that usually a bor is ten tefachim deep. Tosafot feels that this contradicts our Gemara which says that a bor of ten tefachim is not mentioned in the Torah. If a bor is usually ten tefachim deep, when the Torah speaks of a bor it is speaking of the usual bor which is ten tefachim deep.Tosafot will now present three difficulties with Rashi’s explanation. The first:This is bewildering: For in Chapter Haporoh (50b) we are taught by the Mishna, “just as a borhas sufficient depth to kill, which is ten tefachim etc.”, and Rashi explains that the Mishna knows that a bor has ten tefachim, because an ordinary bor is ten tefachim deep. If so, that Rashi is correct and an ordinary bor is ten tefachim deep, then when the Torah speaks of a bor, it is as if a bor of ten tefachim is written in the Torah. How can our Gemara say that ten tefachim is not written in the Torah?The second difficulty: Another difficulty with Rashi’s explanation, is that here, the Gemara expounds from the verse “and the corpse shall belong to him” to prove that the bor that the posuk is discussing is ten tefachim and according to Rashi, this is not necessary, the use of the word bor inherently means that it is ten tefachim deep.The third difficulty: And yet another difficulty with Rashi’s explanation is that the Gemara will soon ask that ultimately this, a ten tefachim bor, is an av for liability if there is a death and that, a nine tefachim bor, is an av for liability if there are damages? and Rashi explains that when the Torah describes the events that happen in a bor it uses the phrase “and there will fall into the bor” which implies that it caused either death or damages, and therefore both are avos. If so, that both are avos, because they appear jointly in the verse, then when the Gemara expounds from the verse “shor” that one is liable only causing the death of an ox but not for a person, that exclusion should apply equally to everything that is alluded to in the posuk and should exclude liability for a person damaged by the bor, just as one is excluded if a person is the victim killed by the bor. Since we are saying that “there will fall into the bor” is referring to damages as well as to being killed; then the exclusion of a person as a victim should apply to both avos that are mentioned in the posuk. The Gemara, however, (28b) says that the exclusion of a person who is a victim of the bor is limited to one who suffers death, and does not apply to a victim who suffers damages.Tosafot suggests an entirely different explanation of the Gemara, in order to avoid the problems he has with Rashi’s explanation. Therefore, it appears that the explanation is that an ordinary bor is very deep, and in order to define the properties of a bor it is necessary for the Torah to use both terms, bor and “the corpse will belong to him”.By balancing the implications of these two terms we will arrive at the definition of the Torah’s bor for which one is liable. For had the Torah not written bor and the only source for defining the bor would be “and the corpse shall be his”, I would say that one is liable for whatever kills, even if the bor was not deep enough to kill. This requires some explanation. Why should one be liable for the death of an animal if the bor cannot cause death? The expression, ten tefachim are sufficient to kill, means that an average animal will die after such a fall. If an animal dies in a shallower bor, he must have been of less than average health and therefore died as a result of a minor fall. If we had no indication otherwise, we would say that one is liable even for the death of a weaker animal. After all, one has no business digging a bor in a public domain at all and could conceivably be held responsible for the death of an animal of less than average health. The Torah therefore, added the word bor as part of the definition, to tell us that since a bor always has sufficient depth to kill an average animal, one’s liability is only for an average animal, and if the bor is less than ten tefachim the bor digger is not liable. Now, that we see that bor per se would mean that the bor has sufficient depth to kill, we must ask, why was it necessary to include “and the corpse will be his” in the description. And if the Torah only wrote bor, I would say that the liability of bor is limited to a round pit, and not to a square or rectangular pit. If that were true it would be a decree of the Torah, because there is no logical reason to exclude a square or rectangular pit, but since the word bor does specifically refer to a round pit we would say that liability is limited to a round pit. The Torah therefore wrote a second phrase with which to define bor, “and the corpse will be his” to inform us that even if death is caused by a square or rectangular pit one is liable. And that is why both terms defining bor, are necessary.According to this explanation of Tosafot the first two difficulties he had with Rashi’s explanation no longer present a problem. An ordinary bor is not ten tefachim deep, so it cannot be said that a ten tefachim bor is written in the Torah. The Gemara here says that ten tefachim is derived from because it cannot be derived from the word bor alone.Tosafot will now explain why the third difficulty that he had with Rashi’s explanation is not a problem according to his own explanation:And this is the Gemara’s question: neither a nine tefachim bor nor a ten tefachim bor are explicitly written, how can you differentiate between them, declaring that one is an av and the other is a toldoh? The Gemara then answered that a ten tefachim bor is mentioned, because that is indicated by “the corpse will be his”. Despite the truth of this statement that a ten tefachim bor is mentioned in the Torah, the Gemara argues that both are avos: The Gemara then concludes that ultimately this one, a ten tefachim bor, is an av for death, and this one, a nine tefachim bor, is an av for damaging. The Gemara is departing from its previously held position that if one is mentioned in the verse, only that one should be the av. This departure requires some explanation.The explanation is as follows: Since the ten tefachim bor is not explicitly mentioned in the verse, rather, it is derived from logic based on the verse “and the corpse will be his”, which shows that we require a bor that has sufficient depth to kill, and it was known to the Rabonon that this is a bor of ten tefachim. If so, that the derivation is based on logic, then as far as a nine tefachim bor as well, it is logical that it is an av for damages, since it has sufficient depth to cause damage.Tosafot is bringing out that the nine tefachim av for damages is based on a logical argument, that there is no reason that it should not be an av for damages just as a ten tefachim bor is an av for killing, but it is not explicitly written in the posuk, as is the ten tefachim bor. Therefore the exclusion of a human victim is only applicable to what is actually written in the Torah, not what is derived from logical reasoning.However, we do not exclude a human victim, from being entitled to payment for damages, as a human victim’s heirs are excluded from receiving payment in the event that he is killed, because the verse “and there will fall into the bor an ox” is speaking only about a ten tefachim bor.The ruling, arrived at by logic based on what is written in the posuk, is not as if it is written in the posuk. The exclusion of a human victim, therefore only applies to what is actually written in the verse and not to the nine tefachim bor which is not actually written in the verse.Tosafot concludes that if the simple meaning of the verse would be referring to both a nine tefachim bor and a ten tefachim bor, as it is according to Rashi, the exclusion of “shor and not a person” would apply to both of the bor of death and the bor of damages. However, now that we are saying that the nine tefachim bor is not explicitly mentioned in the posuk but derived by a logical comparison, the exclusion of “shor and not a person” does not apply to that bor. Tosafot will now present a Yerushalmi that seems to contradict Tosafot explanation.And in the Yerushalmi the Gemara there expounds the verse as follows: he should have written: if a man will open, and if a man will dig a bor, why did the Torah write bor twice? The only possible reason is that, one bor comes to teach us that there is liability for death and one bor comes to teach us that there is liability for damage.According to this Yerushalmi, we have an inference that there is a bor for which one is liable for damages in the verse, the superfluous word בור. Since the bor of damages appears in the Torah, we revert to the question raised earlier by: why is the bor owner liable for damages to a person? The exclusion of shor and not a person, should apply to every bor mentioned in the Torah. and even so, we do not exclude a person from being the victim of damages, because the verse “and he will fall” doesn't exclude being the victim of damages, only that which is written in the verse explicitly, which is a bor that is ten tefachim deep, and exclusion does not apply to that which is learned from the superfluous word in the verse.In conclusion, Tosafot is saying that even if there is some hint in the Torah to a nine tefachim bor, the exclusion of “shor and not a person” does not apply to it. It only applies to that which is openly written in the Torah. This is not an adequate defense of Rashi’s position, because according to Rashi the words literally mean that either death or damages occurred. The reference to a nine tefachim bor is explicit and the exclusion of “shor and not a person” should apply.
  
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  Whether according to Rav or to Shmuel, these are [a subcategory of] pit. As we proceed in the Gemara we will learn of many different opinions about the liability of a bor. We must keep in mind that the bor in a public domain never becomes the actual property of the digger. We must also keep in mind that the actual concussion is caused by the earth, referred to as, the ground of the world. If so why are we so sure that the bor digger is liable? All of these aspects of bor, are addressed in the Gemara. At this point we will limit our discussion to the Gemara that Tosafot cited. The Gemara has now introduced a new concept of bor. That one who is hurt above ground by another’s stone, knife or package is considered the victim of a bor. Rav and Shmuel both agree with this. Tosafot questions this assumption. When one is hurt above ground by a stone, it is the concussion that harms him. Tosafot will show that Rav holds that the liability of bor is not for causing a concussion.And if you ask: Rav holds later (50b) that the that the bor for which Torah holds one liable is for the foul air that is harmful to the animal that falls into the bor and not for the concussion caused by the fall against the earth at the bottom of the pit. When an animal falls into a bor, an argument can be made that it is being hurt by the foul air. This is certainly not true if it is hurt at ground level. If Rav holds that bor is not liable for the concussion it causes, why should it be liable for hurting someone above ground? And one can answer: That there, when an animal falls into a pit, the pit digger is not liable for causing the concussion because it is the ground of the world that damaged him. Rav holds that exposing the ground that causes the concussion is indirectly causing damage and one is not liable for that. However, here when one collides with a stone that concussion is his own. It is his property that actually damaged the victim and for that he is liable. Rav holds that one is not liable for a concussion only because the earth that caused the concussion is not the bor digger’s. When the collision is with the owner’s property the owner is definitely liable.
  
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  We derive it from 'his ox.' Rav says that if one owns a stone, knife or package, they cannot be considered a bor. It is Rav’s opinion that a bor is ownerless by definition. If so, from where can we learn that if one’s stone, knife or package damaged somebody, that the owner is liable? The Gemara says that it can be derived from shor, his ox. His ox is his property and he is liable for damage that it does, so too, he is liable for his stone that is his property. We have learned that shor has three avos. From which one do we learn that one is liable for the damage caused by his stone? This is one of Tosafot topics. We must keep in mind that when we learn the liability for a stone from bor or shor, it takes on the laws of shor or bor. For example, according to Shmu’aill who holds that we learn the liability for a stone from bor, one is not liable for damage to vessels, since a bor is not liable for damaging vessels.From which av of shor are we learning that one is liable for damage done by his stone, knife or package?It is keren that is the source from which we learn that one is liable for damaged caused by his property. We cannot use shain or regel as a source, for shain and regel are exempt in a public domain and that which is derived from them would have the same rule and also be exempt in a public domain. The Gemara is specifically speaking about a stone that damaged in a public domain, so the only source can be keren, which is liable in a public domain.Using keren as a source is not without problems. Theoretically, for anything that is derived from keren there should be a distinction between a tam and a muad. The Gemara makes no mention of such a distinction about damage caused by one’s stone. Why not? As far as one’s stone knife or load, we cannot distinguish between a tam and a muad, for it is only logical to make such a distinction about live animals. When dealing with live animals one can say that the first three times the animal damaged were an irregularity and he only pays half. After three times the animal has shown that he regularly damages and is liable for full payment. This distinction between the first three times and afterwards cannot be made for inanimate objects.Another problem with using shor as a source: And if you ask: How can we learn from shor, that one is liable for damages done by his inanimate objects? The comparison can be refuted with the argument: How can you use shor as a source from which to learn that one is liable for damaged caused by his stone? Shor has the characteristic that it is alive and has intent to harm, which the stone, knife and load do not have?Tosafot answers: And Rashbam explains: That they, the stone, knife and load, derived from bor and shor by the method of a common characteristic.1<i class="footnote">When attempting to derive a new law from an already existing law, many times we refute the attempt by saying there is no comparison because the existing law has a chumro that the new law does not have. For example, in the case under discussion, when we attempt to learn one’s stone from his ox, the attempt is refuted wit the rejoinder, the shor is alive and has intent to damage, which the stone does not. We then say bor will prove that those characteristics are not what cause liability, because bor also doesn't have those characteristic and yet one is liable for damages caused by his bor. As we will see later, in this particular case there is no refuting the proof from bor that it is not necessary to be alive or have intent to harm in order to be liable. Later on we will discuss a situation where the second proof is also challenged. In any case we see that it is not the special characteristic of shor that is the reason for liability, because we see from bor that one can be liable without those characteristics. It must be the צד השוה, the common characteristic that they share that is the reason for liability. The common characteristic that the Gemara uses here is that they are your property, they are likely to damage and it is your responsibility to guard them so that they do not damage others. We thus learn that one is liable for damages caused by any type of property that has these common characteristics. </i>Our Mishna said that there is a common characteristic from which we learn other forms of damaging. Later the Gemara (6a) discusses what additional forms the Mishna mean. The first suggestion by Abaye is the case presently under discussion. The Gemara there argues that if they were declared ownerless, according to both Rav and Shmuel they can be derived directly from bor, and there is no need for them to be derived from the common characteristic. If they were not declared ownerless, the Gemara says that according to Shmuel they can be learned directly from bor, the common characteristic system is not needed. There seems to have been a text which reads that, according to Rav they can be derived from shor. In the context of that Gemara this would mean that they can be learned directly from shor, and there is no need for the common characteristic method. Tosafot, however, holds that this is definitely not true. He has shown us that the inanimate objects cannot be derived directly from shor but only through the common characteristic method. And later (6a) where the Gemara discusses what can be learned from the common characteristic, where Abaye says that it comes2<i class="footnote">לאתויי-literally means: to bring or to include.</i> to teach liability for one’s stone and knife, we do not have the text: if according to Rav who says that they are all learned from shor, they are shor, which implies that the common characteristic system is not needed. For according to Rav, Abaye’s statement that they are derived from the common characteristic works out well because it is derived from the common characteristic method as we explained.We mentioned earlier that when one derives a new rule from an already existing rule, the new rule has the same laws as the existing one.but there is a difficulty, since we are now saying that we are learning the inanimate objects not only from shor but also from bor, and then one should be exempt when they damage vessels as is the law by bor? Perhaps, that is in fact the rule that if the inanimate objects damage a vessel the damager is exempt? Tosafot proves that this is not so. And later in Hamainee’ach (28a) Rav says that one is liable when they, his inanimate objects, damage vessels, where the Mishna discusses one whose jug was broken in a public domain, because he holds that they are derived from shor where there is no exemption for breaking vessels. This is a contradiction to what Tosafot has just said; that inanimate objects that are one’s property are derived from shor and bor and accordingly, there should be an exemption for breaking vessels.3<i class="footnote">See שיטה מקובצת who quotes a gilyon who offers an answer to Tosafot question. This particular common characteristic is derived from פלגא דדינא, literally a half din, which means that when the Gemara refutes the derivation from shor because shor is alive and has intent to harm, we then present the argument that we see from bor that those characteristics are not the reason for liability, since bor is liable even though it does not have those characteristics. Atthis point there is no further refutation. Elsewhere we will see that the Gemara many times argues that the second source is also not acceptable, but here there is no such argument. Therefore, the newly derived form of damaging has the rules of shor and not the rules of bor. If the Gemara had been able to argue that bor is also not an acceptable source and we would have then proved that between the two we find that this new form is also liable, then the new form would take on the rules of both.</i>
  
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  Your property. This characterization of bor as “your property” is imprecise as far as bor is concerned, because a bor is not one’s property. The bor that the Torah speaks about is in the public domain. Obviously, it is not the property of the one who dug it.And so too, in so far as aish is concerned, the characterization of “your property” is imprecise, for it is plain that if one kindled his neighbor’s silo with another person’s fire; he is liable, even though the fire is not his property.
  
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  A subcategory [if while] asleep. Later, on this page, the Gemara cites the opinion of Rav that Maveh mentioned in our Mishna means a person who damages. At the end of (4a) the Gemara asks: The Mishna says that one of the common characteristics of the four avos is that they are all likely to damage. Is a person likely to damage? The Gemara responds we are speaking about a sleeping person. It is clear from the Gemara that a sleeping person is an av.When the Gemara suggests that perhaps a sleeping person is a toldoh, the Gemara could have refuted that suggestion by arguing that later (4a) the Gemara says that our Mishna is speaking about a sleeping person who is likely to damage and he is called an av.1<i class="footnote">The Gemara there is suggesting that when the Mishna speaks of a common characteristic of the four avos, the person referred to is a sleeping person. It is clearly saying that a sleeping person is one of the avos that the Mishna is discussing. </i> However, the Gemara does not present this refutation because anyhow he refutes the suggestion correctly.
  But didn't we learn [that] a person [is] always forewarned? The Gemara rejects the suggestion that a sleeping person is a toldoh, because the Mishna later says that a person is always muad even while sleeping. How does the fact that a person is always muad, prove that a sleeping person is not a toldoh? Perhaps a sleeping person is a toldoh and yet he is always liable?The Gemara does not mean to ask that a sleeping person is also an av, as the Gemara expounds about a person who injures another person in the Gemara in Chapter Kaitzad (later 26b) from the verse “a wound in place of a wound”,1<i class="footnote">See Artscroll 26b note 2. The Gemara there says that the verse “a wound in place of a wound” is superfluous and its purpose is to teach us that one is liable for damaging another person even if his action was unintentional or the result of an unavoidable accident. </i> for the Gemara does not cite the verse here.Rather, the intent of the Gemara when quoting this Mishna is to show that a sleeping person is legally the same as a person who is awake and Rav Papa was not referring to a sleeping person when he said that the toldoh is sometimes not the same as the av. 
  
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  Saliva or moisture. Rashi says that כיחו is saliva and ניעו is moisture that runs from the nose. Tosafot proves that Rashi’s interpretation of ניעו is incorrect and offers his own explanation. Rashi explained that ניעו is moisture of the nose. And this is difficult to Rabbeinu Tam: For in Chapter Dam HaNeedoh (needoh 55b) the Gemara teaches in a Braita “כיחו וניעו and moisture of the nose”. Obviously ניעו is not moisture of the nose. And it appears1<i class="footnote">From the root strength</i> that כיחו is that which emits from the throat by the strength of one’s cough, and2<i class="footnote">From the root to move </i> ניעו is that which emits from the mouth by relatively light shaking.
  
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  To exempt in the public domain. Rovo is not sure whether צרורות pays from the choicest assets of the damager or not. The Gemara asks: if so, in what way is צרורות a toldoh of regel? The Gemara answers: It is a toldoh of regel as far as being exempt in a public domain. It seems that it makes sense to Rovo that צרורות should have the exemption of regel in a public domain, but he is not sure whether צרורות should have the severity of regel to pay from the choicest.And if you ask: Why is it more apparent to Rovo that צרורות takes on the character of regel and is exempt in a public domain, while he is uncertain whether צרורות pays from the choicest assets as regel does?Tosafot explains that it depends on how one views the reduction in payment of צרורות.And we can answer: Since the law of regel would require that צרורות pays full damages and the halochoh to Moshe from Sinai comes to teach us that he only pays half damages, if so, we see that the halochoh to Moshe from Sinai comes to be lenient, Rovo therefore give צרורות the leniency of regel and not to be stringent, and Rovo is therefore unsure of whether to apply the stricter ruling of regel that one pays from the choicest.
  But why is it characterized [as] a subcategory of trampling? Tosafot is concerned with the basis of the Gemara’s question. There seems to be a very simple reason why it is called regel, it is exactly regel because it is a usual occurrence, as is regel. Why does the Gemara neglect that reality? Although it is similar to regel in that this type of damage is common, even so the Gemara questions; why is this called regel? Because the similarity is not sufficient reason to classify it as regel. Since its rules are distinct from regel, that צרורות pays only half damages, according to Rovo צרורות should be called a name of its own. The Gemara then answers that it does have at least some laws of regel that it is exempt in a public domain and therefore it can be properly called a toldoh of regel. See Otzar HaTosafot note 511.
  
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  As Rav Yosef translates. There are three possible reasons why the Gemara speaks specifically of Rav Yosef as the one translating in the Targum language.A) He was the author. There are many who believe that Rav Yosef was the author of the Targum of נביאים and כתובים. That would of course justify the Gemara referring to the Targum of Rav Yosef. Tosafot in Shabbat (115a ד"ה ובידו) disagrees with this opinion because the Gemara there refers to a Targum of Iyov in the times of the Tanoim that predates Rav Yosef.B) Rav Yosef was blind. There is a prohibition to say the words of the written law by heart. Rav Yosef could not read the words, so he always spoke of the words of Tanach in Targum.C) Rav Yosef was an expert in Targum.Tosafot will choose the reason he feels is best. The Gemara mentioned Rav Yosef because he was an expert in Targum. Expertise is required because there are many1<i class="footnote">We know of Targum by Unkelos , R’ Yonoson ben Uziel and Targum Yerushalmi. As we have seen some are of the opinion that Rav Yosef himself authored a Targum. Others feel that Tosafot is referring to the Targum of R’ Yonoson ben Uziel, but there are many versions of it and that is what Tosafot is referring to when he says there are many versions of Targum.</i> versions of Targum. And this reason is not as has been explained elsewhere (Shabbat 115a) תוספות ד"ה לא ניתנו, that because Rav Yosef was blind. And the Gemara in (Gittin 60b) says2<i class="footnote">The Gemara there explains, what appears to be a contradiction. It is written “write for you these words”. And it is written "for according to these words”, the word for according litterally means upon the mouth. There seems to be a contradiction, in one segment of the verse the Torah discusses writing the words and in another segment the Torah discusses the words of the mouth. How does one resolve this contradiction? The written Torah you are not allowed to say them by heart. The oral law you are not allowed to say them in writing.</i> and the written Torah you may not say by heart. And that is why he said Targum. This reason is not acceptable because of the verse “it is a time to do for Hashem”, (Tehilim 119) the Gemara says there (Gittin 60a), based on this verse that it is permitted to violate the prohibition against saying the words of the written Torah by heart.3<i class="footnote">The Gemara there is actually discussing the reverse situation. R’ Yochanan and Resh Lokish were studying a book of Agadato, which seems to be a violation against writing the oral law. The Gemara says in reference to that violation that because of “a time to do” that it is permissible. The Gemara never specifically says that one may violate the prohibition of saying words of the written law by heart that it is permissible because of “A time to do”.</i> And you have no “time to do” that permits one to violate this prohibition greater than this, where Rav Yosef who was blind would not be able to say the words of the Torah at all, if we were to enforce the prohibition in this case.
  
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  Goring, where there is no pleasure [to the animal in doing] damage, is not similar. The Gemara is showing how one could not learn shain from keren if only keren were written in the Torah. The Gemara says that Keren is more stringent than shain because keren does not derive any benefit from its damaging, whereas shain does. On the surface this seems to be an error. The fact that keren does not derive benefit from damaging seems to be a reason that it should not be liable and if the Torah says that one is liable for keren even though it does not derive any benefit from damaging than certainly one should be liable for shain where the animal does derive benefit when it damages.The same is true of the other refutation the Gemara mentions; if the Torah only mentioned shain where there is no intent to damage we would not be able to learn keren where there is intent to damage. This also seems to be an error. The fact that the animal intended to damage should be more reason to believe that the owner is liable. According to Rashi it seems that this is in fact the case that the initial statement of the Gemara about the relationship between keren and shain was an error, and the Gemara immediately sets about correcting this error. Tosafot is not willing to accept that the initial statement was a total error and searches for some logic in this statement.Keren which does not derive any benefit from damaging should have been prevented and the owner was definitely negligent, for he should have guarded his ox to prevent it from damaging, for it would be relatively easy for him to guard it because it is not so provoked to damage, since it has no benefit from damaging. The fact that there is no benefit from damaging can be seen as a reason for liability because it is relatively easy to prevent it from happening.Shain by contrast is decidedly different: However, shain where the animal does benefit is similar to an unavoidable accident for it is difficult to guard to prevent it from damaging as much as is necessary, since the shain is provoked to eat for its benefit. It is therefore less likely to be liable for shain, because it is harder to prevent.Tosafot will now show us that a similar line of thinking can be found for the Gemara's next statement:And one cannot view the shain which has no intent to destroy and itsevil inclination to destroy is not so overpowering and it is relatively easy to guard her and prevent her from damaging, as one views the keren that has intent to destroy and its evil inclination to destroy is overpowering and it is difficult to guard her well so that she should not damage. Shain may be liable because it is relatively easy to prevent since there is no intent to damage. Keren may be exempt because it is too difficult to prevent.Tosafot has shown that the initial introductory statement of the Gemara may be logical and need not be seen as an error. The Question that we must ask is; how the Gemara ultimately refutes this logic? See Maharam who says that ultimately the Gemara prefers the original approach despite the fact that an argument can be made in favor of Tosafot approach. All Tosafot wanted to accomplish is that the initial statement was not a total error.
  
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   It is similar to a slave or maidservant. Rashi explained that the exemption is taught by a Mishna later in Perek Hachovail that says that when a slave damages, his owner is not liable. Tosafot holds that the Mishna Rashi quotes is not the proper source of this ruling.The source for this ruling in the Mishna is not as Rashi explained because we are taught in a Mishna in perek Hachovail (later 87a) that as far as a slave and a married woman are concerned, an encounter with them is terrible, for one must pay if he injures them and they do not have to pay if they injure anybody. For if it was so that our Gemara is referring to that Mishna, the Gemara should have mentioned ‘a slave and a married woman’, which would be a direct quotation of that Mishna. Since the Gemara does not mention ‘a slave and a married woman’, it seems that the Gemara is not referring to that Mishna.Rather, Rabbeinu Tam explains that the Gemara mentioned a slave and a slave woman, because it is referring to a Mishna at the end of Masechet Yadayim (Chapter 4, Mishna 7) that specifically discusses this case of a slave and a slave woman who damage others. And the reason that they are exempt which is because their master may anger them and they will damage another person’s property in order to cause their master to pay that is soon mentioned in our Gemara is explicitly mentioned there in Masechet Yadayim, which also proves that our Gemara is referring to that Mishna.
  Is it not so that although their objective is to cause damage, nevertheless their owners are exempt? The Gemara is presently contending that intent to harm is a positive reason to hold one liable. The questioner attempts to prove that this is not so. His proof is from a Mishna in Masechet Yadayim (Chapter 4, Mishna 7) that says: that a slave and a slave woman who damage others are exempt. The slave and slave woman do have intent to damage and even so they are exempt.The Gemara responds: although it is true that a slave has intent to harm and his owner should therefore be liable, there is an overriding reason to exempt the owner. The slave can cause the owner untold losses by damaging other people’s property when he is enraged by his master. If he knows that the master is liable, he will use this weapon against him. If however, the master is exempt, this weapon has been neutralized. It is for this overriding reason that the owner of a slave is exempt when the slave damages others.The Gemara’s contention that intent to damage is a positive reason to hold one liable remains intact. All this information about the exemption of a slave appears in one Mishna in Masechet Yadayim. Tosafot wonders: How much information did the questioner have, when he asked his question? Tosafot is extremely puzzled by this problem and presents three difficulties with the simple explanation of the Gemara.The first difficulty: And if you ask: As far as a slave and a slave woman themselves, we should learn from a kal v’chomer from shain that they are liable for damaging, since the questioner did not yet know the reason for exempting the slave owner mentioned later which is that his owner may anger him and he will cause him untold losses. As long as the questioner does not have that information, he should be convinced that the slave owner is liable, whereas the Mishna in Yadayim clearly says that he is exempt.1<i class="footnote">Many of the commentaries on Tosafot are extremely puzzled with Tosafot question. Tosafot seems to be asking the very question that the Gemara is asking. When the Gemara contends that intent to damage is a positive reason for liability, the questioner argues that we see from a slave and a slave woman that this is not true. Essentially the Gemara is saying that liability of keren and the exemption for the slave owner are contradictory. On the surface it seems that Tosafot is asking the same question: if shain is liable without intent to damage the slave and the slave woman should also be liable? Why are they in fact exempt? P’nai Yehoshua offers the following explanation. The contention of the Gemara is that intent to damage is a positive reason for liability. If so, why did the Torah have to write keren, it can be derived by a kal v’chomer from shain. The Gemara answers: you are correct, intention to damage is a positive reason for liability; however the Torah had to write keren because I may have erred and thought that intent to damage is a reason for exemption as can be seen from the slave and the slave woman. The Gemara is maintaining that the basic position is correct, but the ruling about the slave may have misled me. Tosafot is questioning the premise that the basic position is correct. If it is in fact correct, why is the owner of the slave and slave woman exempt?</i>The second difficulty:And there is another problem: since the questioner obviously knew the beginning of the Mishna in Masechet Yadayim, as can be seen from the fact that he uses the phrase “a slave and a slave woman”, which is a direct quotation of the Mishna in Yadayim, and he does not use the phrase “a slave and a married woman” that is used in Perek Hachovail, then he most probably knew the end of that Mishna, which states the reason for the exemption, that his owner may anger him and he will cause him great losses. How did the questioner ignore the reason stated in the very Mishna that he is quoting?A third difficulty:And there is another problem: that a slave and slave woman, even when they have no intent to damage are also exempt. This proves that the reason for their exemption has nothing to do with their intent to damage. If intent was the reason for their exemption, they would be liable when there was no intent to damage. If so, how is the questioner bringing proof that intent to damage is not a reason for liability? The exemption of the slave owner has nothing to do with intent or the lack of it.Tosafot has now presented three problems with the simple understanding of the Gemara:1) How can the questioner make peace with the exemption of a slave and slave woman? According to his understanding they should be liable based on a kal v’chomer from shain.2) How could the questioner not have known of the reason mentioned in the Mishna in Yadayim that a slave who is angered will cause his owner great losses?3) How can the ruling of a slave be used as proof that intent to harm is a reason for exemption? The slave is exempt even when there is no intent to harm.In order to answer all Tosafot questions we will have to adopt an entirely new approach to the Gemara’s question. For a fuller understanding of the issues we will identify three levels of intent that are possible when a slave damages.a) He intended to damage because he wanted to cause his master a loss. Only a human is capable of such intent.b) He intended to damage without thinking of the consequences to his master. This is similar to an ox that damages. It intends to damage but is certainly not thinking about causing its owner a loss.c) He did not intend to damage at all. He may have been negligent or a victim of unavoidable circumstances.And we can answer: that the questioner certainly did know the reason for the exemption mentioned at the end of the Mishna that his master may anger him and he will cause the master major damages if the master was required to pay. And even so the questioner asked that from the ruling of a slave we see that intent to damage is a reason for exemption, not liability.2<i class="footnote">This answers the second question. </i> The basis of his question is that since we see that a slave and slave woman are exempt even when they have no intention to damage and even though the reason that their master may anger them does not apply in this specific case.3<i class="footnote">This answers the third question. </i> The reason the owner does not pay is because he is an אונס, a victim of a situation beyond his control, the slave and the slave woman are intelligent human beings who have a mind of their own and it is impossible for him to stop them when they intend to damage.But perhaps they are damaging because their owner angered them and that is why the owner is exempt? We will prove that the owner is exempt even when it is clear that they are not damaging with the intent to cause him a loss.4<i class="footnote">This explanation of Tosafot is mentioned in שיטה מקובצת in the name of גליון. There are many other approaches. See Maharsha, Maharam and Pnai Yehoshua. </i>Because sometimes they, the slave and slave woman, damage intentionally, and they say that they had no intention to damage. If they truly intended to avenge themselves for being mistreated by their master, they would want their master to know that they did this to hurt him. Since they are denying that they damaged intentionally, they obviously did not intend to hurt their master. Therefore their owner is exempt in any case even when there is clearly no intent to avenge themselves from their master, but why? What emerges is that their intention to damage causes that the situation is beyond the control of the owner and that is why he is exempt.5<i class="footnote">There remains one major problem according to this approach to Tosafot. Since Tosafot effectively proves that the reason for the exemption is the fact that there is intent to damage, why does the Mishna in Yadayim say that the reason is because his master might anger him and he will damage another’s property as a form of revenge? The גליון addresses this problem. He says that there is reason to believe that even though the true reason for the exemption is that it is beyond the control of their master to guard them, however, it is within his control not to anger them and he should be liable if he is the cause of their damaging. It is to this possibility that the Mishna responds that the angry slave may cause untold damages if we were to hold the master liable and we must neutralize the weapon in the hand of the slave by exempting the master. </i> It is not because of the possibility that his owner angered him, because we have proof from the fact that they said they had no intention to damage that they did not want to take revenge. It must be the fact that they have intent to damage is what makes the situation beyond the control of the master.The questioner’s conclusion is:keren as well; where there is intent to damage is a situation beyond the control of the ox owner and we should exempt it.And Rav Ashi explained that even when there is no intention to damage there is a major overriding reason to exempt the slave owner. Rav Ashi believes that the slave would feel a sense of revenge even if he tells the master that he damaged unintentionally. His satisfaction comes from knowing that the master must pay. This is possible in all situations, even when it appears to us that the damage was totally unintentional. According to Rav Ashi the concern that the slave is damaging for revenge is ever present and that is why the master is always exempt. Thus there is no proof at all that intent to damage without the motivation for revenge is considered beyond the control of the master.
  
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  And when [he] causes damage, the damager is liable. These words appear twice in the Mishnayos of our Perek. Once in the very first Mishna on 2a and a second time in the Mishna on 9b. Tosafot wants to clarify which Mishna we are referring to when the Gemara says that these words כשהזיק חב המזיק comes to include regel or keren.When the Gemara says that comes to include regel or keren the Gemara does not mean the first that appears in the Mishna on 2a. Rather, the Gemara is referring to the other mentioned on 9b. It is from that Mishna that regel or keren is included.1<i class="footnote">Rashi on 9b explains that the first is used to teach us other forms of damaging as mentioned in the Gemara on 6a. It is only the second of 9b that is available to teach us keren or regel.</i>
  
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  To enumerate it among the forewarned. In the give and take between Rav and Shmuel, Shmuel argues that our first Mishna did not mention a person who damages because the Mishna teaches us about a person later on 15b. Rav counters that although a person is already mentioned in the first Mishna on 2a, it was mentioned once again on 15b to be listed with the other muadim. Actually, some other avos, such as shain and regel are also mentioned there which seem to lend credence to Rav’s explanation. In our Gemara, Shmuel does not respond to Rav’s argument. Tosafot will tell us what Shmuel’s response is.And Shmuel holds that the Mishna did not have to inform us in the end of the Mishna on 15b about a person, since the Mishna there is not teaching us anything new about a person who damages that we do not already know from the beginning of the Mishna.The same is not true of shain and regel that are mentioned in the first Mishna on 2a and the Mishna on 15b. However, shain and regel, even though they are taught in the beginning of the Mishna on 2a, they are taught again in the end of the Mishna on 15b together with the muadim, because of something new that the Mishna explains there, which is, that shain is muad only to eat that which is suitable for it, not clothing and regel is muad to break objects as it walks. These details of shain and regel are new information and that is why they are mentioned together with the muadim on 15b, whereas nothing new is taught about a person who damages. Shmuel holds that if a person was mentioned in the first Mishna there is absolutely no reason to mention him again in the Mishna on 15b. Since he is mentioned there it is proof that the Mishna did not mention him previously and that maveh is not a person.But what about keren, which is mentioned in the end of the Mishna together with the muadim even though nothing new is taught about it?And keren was also taught in the end of the Mishna on 15b, even though it was taught in the beginning of the Mishna with the words “when he damages the damager is liable”1<i class="footnote"> The word keren doesn't actually appear in the Mishna at all. It is intimated by the expression “when he damages the damager is liable to pay”.</i>that come to include keren as an av, and nothing new is taught about keren in the end of the Mishna, even so, it is taught in the end of the Mishna because it is already taught there in regard to the five tamim, which are all keren, since no other av has two subdivisions, tam and muad, and it is for that reason that keren is taught together with the muadim.Just as we have analyzed the reasons why shain, regel and keren are mentioned in the Mishna on 15b, we must also know why aish and bor are not mentioned in that Mishna.And if you ask: why did the Mishna on 15b not list aish and bor among the muadim?And we can answer: that he listed only damagers that are alive. There is a logical difference between the first time an animal damages and the fourth time. The first three times, it is not yet evident that the animal is in the habit of causing damage and after three times it is apparent that the animal is a habitual damager. This distinction is true only of animals, but as far as bor and aish are concerned, the same tendency to damage is true the first time as it is the third or fourth time.
  
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  similar to characteristic of the Man, where does not pay the ransom. The G’moro is showing that there is an inherent leniency with the way the Torah deals with a person who has murdered someone else. Whereas, when an animal kills a person the owner is liable to pay kofer, a person who kills someone else is not liable for the kofer payment. So too, argues the G’moro that although an animal might be liable to pay damages, a person may be exempt. One cannot derive the liability of a person who damages from the liability of an animal that damaged.This argument is based on the understanding that a person’s lack of liability for the kofer payment is a leniency. Tosfos questions this assumption.Riva asked: what sort of stringency is this, that a person does not pay kofer? The reason he does not pay kofer is because it, the obligation to pay kofer, is canceled by that, capital punishment for murdering, which is greater than it,1<i class="footnote">This principle is derived from a posuk in Sh’mos 21, 22. The Torah is discussing payment for aborting a fetus when one strikes the mother. The Torah says: אם לא יהיה אסון ענוש יענש if there will not be a death, which would have resulted in capital punishment, the perpetrator will be fined. ואם אסון יהיה and if there will be a death,ונתת נפש תחת נפש and you will pay with a life for a life and there will be no financial payment. We see that when one is subject to capital punishment, financial obligations are cancelled.</i> the financial fine of kofer. Indeed, it is the severity of a person’s behavior, that carries with it capital punishment which causes that he does not pay the kofer. If so, how can the G’moro present non-payment of kofer as proof that the laws governing a person are lenient in comparison to those governing an animal?And he answered: That it is not the severity of a person that causes him to be exempt from kofer, because we find that an unintentional murderer is also exempt from kofer, from that which was taught in the academy of Chizkeeyoh2<i class="footnote">The academy of Chizkeeyoh teaches in K’subos 35a, based on a       textual comparison between a person who kills an animal and a person who kills another person, that one is not liable for financial punishment when murdering even though, he will not actually be put to death.</i>. Since we see that a person is exempt from kofer payment even if he murdered unintentionally, it is obviously not because of the stringent way the Torah deals with a person, but rather, because of the lenient way the Torah is dealing with him. The G’moro’s original contention that non-payment of kofer proves that the Torah is lenient with a person remains.Tosfos is skeptical about legitimacy of the Riva’s question. Riva’s question assumes that the reason a person who kills is exempt from kofer is because of the principle that a lesser punishment is canceled by a greater punishment. R”I will prove that the basis for the exemption is totally independent of the principle of קם ליה בדרבה מיניה.   The question we must ask is; why the principle of the greater punishment cancels the lesser does not apply? Upon proper analysis we can see that the Torah in Sh’mos 21, 22, is not discussing a financial payment for causing the death of the mother. Such a payment if it were to take the form of kofer might be in order as far as that verse is concerned. What the verse there is excluding is a payment for the lost fetus, which of course is totally independent of the payment for the mother’s life. It may be that we can learn from the verse that only independent payments are canceled by a death penalty, but we cannot learn from that verse that a payment for the death of the mother is exempt because of that verse.And R’I says: That the Riva’s question is no question at all, because one is not exempted from kofer because of the principle that a lesser punishment is canceled by a greater punishment, and here in the discussion of non-payment of kofer it is not possible to mention that which was taught in the academy of Chizkeeyoh, because that is an extension of the principle that the lesser punishment is canceled by the greater punishment. Since the original principle does not apply, the extension also does not apply.Later the Gemara on 26a asks that a person should be liable for kofer based on a kal v’chomer. If an animal that is not liable for the four things, pain, medical expenses, lost time and embarrassment, is liable for the kofer, a person who is liable for the four things should certainly be liable for the kofer. The G’moro rejects this kal v’chomer, because the verse obligating one to pay kofer uses the word עליו - upon him, referring to the animal and the G’moro understands that this means to exclude a person from kofer. Tosfos now applies what we learn from that G’moro to the issue under discussion.For later in the second Perek on 26a it appears that if not for the verse עליו- upon him, the ox, and not upon the person, we would derive liability for a person who killed from an ox that killed, based on the kal v’chomer we mentioned earlier. The liability for intentional murder would be capital punishment and kofer. It does not seem that the principle of the lesser penalty being canceled by the greater penalty is relevant. And it is from עליו, that he is exempted from kofer. The exemption of עליו applies even when he killed unintentionally, because a person who murders unintentionally is comparable to an ox that killed, even though the ox had intent to kill, there is no legal validity for the intention of an ox3<i class="footnote">Even though we definitely speak of an ox’s intent to harm as being a reason for liability, such intent could never qualify as intent for a human who is liable only if he understands the consequences of his action and can be warned by witnesses that he will be liable for capital punishment. See Rashash.</i>. Just as an ox kills with less than legally valid intent, so too, a person who kills unintentionally lacks legally valid intent. Since the Torah says עליו- and not upon a person, the implication is that in any way the ox is liable for the kofer, a person is exempt. The ox is liable even though his intent is not legally considered intent, so too, a person is exempt when he does not have legally valid intent to kill.We now have a source other than קם ליה בדרבה מיניה for the exemption from kofer for both intentional and unintentional murder. However, we must still know why that principle does not apply to kofer.And that which was taught in the academy of Chizkeeyoh, that exempts one who kills even unintentionally, is not discussing kofer, which is a penalty for killing, it is referring to property that one damaged as he was committing a capital violation. That payment would be totally unrelated to the capital violation. The relationship of the two violations is simply one of time. They both happen together, as in the case of paying for a fetus. The capital violation of murdering the mother happens at the same time as the financial obligation for aborting the fetus. The reason one pays for the fetus has nothing to do with the death of the mother.That which was taught by the academy of Chizkeeyoh comes to reject the opinion of the one in Perek Ailu Naaros (K’subos 35a) who expounds the verse in Sh’mos 21, 22, “if there will be no death, the perpetrator must pay”. He deduces, but if there will be a death, there will be no payment for the fetus. The word אסון death, refers specifically to the penalty for death, and it is actually only if the murder was intentional when there will be a death sentence, that there will be no payment for the aborted fetus. If however, the murder was unintentional and the murderer is not executed, the payment for the fetus must be made. It is this opinion that Chizkeeyoh rejects.Chizkeeyoh comes and informs us that it need not particularly be liability for the death penalty that cancels the payment for the fetus but even an unintentional murderer is not punished with payment for the fetus.
  
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  Since [one] contracts and extends [his limbs] while sleeping, it is his [typical] manner [to damage]. The Gemara is saying that it is the norm for a sleeping person to damage others because he bends and stretches as he sleeps. It is only logical that his liability is limited to the area in which he bends and stretches. As long as he is careful that there is nothing to damage in his immediate area, he will not be liable for damage that occurs as the result of someone else’s behavior.In Yerushalmi it is stated, that a sleeping person is only liable when he laid himself down next to the vessels that he broke, but if he was asleep and others brought vessels and placed them next to him, and he broke them, he is exempt because they caused him to break the vessels by placing them next to him.And so too, if he was asleep and his neighbor went to sleep next to him, and they damaged each other while asleep, the first one is exempt and the last one is liable.
  
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  And according to your reasoning. Shmuel questioned Rav; the Mishna says about the avos, it is your obligation to guard them, this term does not seem to refer to a person. It is a person’s obligation to guard himself, not to guard them. Rav responds: and according to your reasoning, you have the same problem. What is Shmuel’s reasoning, that Rav to which Rav refers?The explanation is: even if you say that maveh in our Mishna is shain, the term “and it is your obligation to guard them” makes sense in out Mishna, but that term is used in Karno’s Braita where a person is specifically mentioned among the avos, and even so he uses the term “and it is your obligation to guard them”. How will you deal with the term “and it is your obligation to guard them” there. 
  [For a] man [the responsibility for] safeguarding his body is upon him. The Gemara only seems to have a problem with one term that the Mishna uses “and it is your obligation to guard them”. Otherwise, there is nothing in the Mishna that presents a problem to Rav who says that maveh is a person. From this question, it appears that we do not have in our Mishna the text וממונא -- and it is your property, since the Gemara does not also ask; is a person his own property? As the Gemara is asking how Rav’s position is compatible with the Mishna, this question should also have been raised.Tosafot is not convinced of the severity of this problem. And for this reason, that the Gemara did not raise the question, it need not be erased, as I have explained earlier.1<i class="footnote">Tosafot explained earlier that since aish and bor are also not one’s property the Mishna’s usage of the term ממונך -- your property, is obviously not accurate.</i>
  
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  But [why not] say [that] Maveh, this is [the primary category of damage caused by] water? Tosafot wants to show that this question was not asked arbitrarily, rather, there is a legitimate basis for this question. The explanation of why this question is asked is as follows: Since the verses quoted to substantiate the meaning of the word מבעה are not precise, neither according to Rav nor Shmuel, it is reasonable to ask if perhaps there is a totally different meaning.Granted that there is reason to believe that מבעה may have some other meaning, it would still not be justified to ask if perhaps it means water, unless there is a source in the Torah that water is in fact one of the damagers.1<i class="footnote">The Rashba disagrees with this position. He says that the Gemara’s point in asking the question may be to bring out that since the basis of Rav and Shmuel’s opinions are somewhat vague, perhaps we should consider water and fire. This does not mean that the Gemara had a detailed system of how this would work, as it does according to Tosafot.</i>And if you ask: and where is water written in the Torah as a damager? And we can answer: the source is from ושלח, and where do we see that ושלח relates to water? And so it says in Iyov 5, 10, as he describes the wondrous deeds of G-d, “and he sends waters over the open country”. The phrase “he sends” is used together with water. So too, when the Torah uses the word ושלח, it refers to one who damages by “sending” water.And even though the phrase “ושלח-he sent” in the Torah is speaking of an animal, because the word בעירה used in the verse means an animal, even so, we can also learn that water is a damager, since the Torah expresses the concept of an animal damaging with the phrase “he sent”. In order to express the idea of an animal damaging by regel, the Torah did not have to use the term “he sent”. There are more efficient ways of expressing that thought. Since the Torah did use the term “he sent” which can be interpreted as referring to water based on the verse in Iyov, we say that the Torah especially used this expression to teach us that water is also a damager.The Gemara earlier on 4a, asked: if we had no verse to prove that ושלח refers to regel, what else could it mean? It seems that there is nothing else that it could have meant, but at this point in the Gemara we are entertaining the idea that ושלח may refer to water. Why was the Gemara on 4a not thinking of the possibility that ושלח means water?And earlier when the Gemara asked: what could it, ושלח, mean? The Gemara could not have said that it means water, because even if one says ושלח means water, we must still say that it means something that relates to an animal since the word בעירה, his animal, is written in the verse.Now that Tosafot has determined a would-be source for water as one of the primary damagers, he turns to the practicality of what this damager would be as compared to the other primary damagers.And if you ask: And these waters that are to be included as a damager, what are the circumstances that cause liability? If he turned the flow of the water of a river or a stream upon it, the object that was destroyed, and the water fell upon it immediately, that is his, the person’s, power and he is liable as a person who damages. And if it was a secondary power, the water did not immediately fall on the object as it came out of the stream but it started to flow in a new direction and at some distance from the stream it damaged the object, that is merely indirectly causing a damage and one is not liable for that as the Gemara says in HaNisfrafin (Sanhedrin 77b).2<i class="footnote">The Gemara there in Sanhedrin is discussing a murder case. Reuven drowned Shimon by redirecting the flow of a river to where Shimon was tied up. The Gemara says that if Shimon was drowned by a first power, the water came out of the river and immediately fell on Shimon, That is Reuven’s power and he is definitely liable. If however, the water flowed some distance before reaching Shimon, that is a secondary power and Reuven is not liable.</i>And we can answer: that it is speaking when the water is a secondary power, and the Torah is letting us know that for a secondary power one is also liable. The Gemara in Sanhedrin quoted earlier which says that a secondary power is merely indirectly causing a death, is speaking after the fact that water is not one of the damagers. If water had been one of the damagers, the Gemara there would not have concluded that one is not liable for causing a death through a secondary power.Tosafot offers a second option of how the damager water would be liable if the conclusion of the Gemara was that water was indeed a primary damager.Alternatively, the Torah is telling us that water is a damager after it comes to rest in a public domain. But it is not the same as bor and could not be derived from bor, as we find (later 30a) that when one opens waste pipes to the public domain that eventually damage others he is liable for the damage that was caused even after they came to rest. This cannot be derived from bor, since opening waste pipes is permissible during the winter. So too, the water under discussion could not be derived from bor, because it is permissible to bring water into the public domain.But the Gemara does derive that one is liable for opening waste pipes from the common characteristic method.3<i class="footnote">See Tosafot 2a ד'ה לא הרי.</i> Why can't we derive water from that same common characteristic method?And even though, it, water that rests in a public domain, could be derived from the common characteristic method, as the Gemara on 6a says that opening the waste pipes is derived from shor and bor. So too, water that has come to rest in a public domain could be derived from that very same common characteristic method. Even so, it is necessary to write a new av of water so that one will be liable for the destruction of vessels, for this could not be derived from any derivation using bor as a source, since bor is exempt for damaging vessels.Tosafot has now explained why the Gemara asked: and perhaps מבעה refers to water? We have also learned how מבעה could be derived from verses in the Torah and we have seen the circumstances under which one would be liable for this new av. However, ultimately the new av could not be what was meant by the Mishna.And the Gemara could have refuted the contention that מבעה means water by asking: what is meant by the Mishna’s phrase, when referring to shor and maveh, neither shor nor maveh that have a spirit of life is like fire which does not have a life spirit? If maveh is water, that too does not have a spirit of life.4<i class="footnote">Chasam Sofer says that this last statement of Tosafot is true only according to the second proposal of Tosafot that water is a damager after it came to rest. At that point it has no spirit of life. However according to Tosafot first proposal that the water is damaging as it moves either by a primary or secondary power, that can be considered a spirit of life because it is an extension of the person who caused the water to flow there.</i> However, the Gemara did not raise this question because even without it, the Gemara answers the original question; perhaps maveh means water, correctly. 
  Is it written: water boils? See Artscroll note 5. The Gemara is rejecting the contention that maveh is water because the verb in the verse is not referring to what happens to the water rather the verb is referring to the activity of the fire. If the verb נבעו was used it would refer to the water and we could then say that maveh of the Mishna refers to water. And if you ask: Even if the verse had written נבעו, which refers to the water, it still could not be said that our Mishna is discussing water. Does our Mishna use the word נבעה, which would show that the word was derived from that verse in Yeshayahu 64? Which is the very question that the Gemara asked earlier (3b) about the opinion that maveh is shain. Does the Mishna use the word נבעה? Since our Mishna uses the word maveh it obviously is not referring to the verse in Yeshayahu 64.Earlier the Gemara said that maveh may mean shain because we find that the word נבעו means to uncover something that had been covered. While shain is eating, the tooth that had been covered is uncovered and therefore the term מבעה may refer to shain.And one can answer: that it is not logical to ask “does the Mishna say נבעה?” only when analyzing shain. The context of the question is let the Mishna use the word נבעה which implies that the tooth itself is uncovered in the process of eating, whereas the word מבעה means that it uncovers [something else, which had previously been covered] which is not true of shain. It does not uncover something else in the process of eating. However, as far as water is concerned, it is quite logical to use the term מבעה, because piping hot water is called מבעבעים. The term מבעה can be referring to what happens to the water as opposed to shain, where the term מבעה cannot be referring to what happens to the shain.
  
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  [There are] thirteen primary categories of damage. Although there are thirteen primary damagers, there are only twelve sets of laws governing them, because a lessee has the same laws as a paid guard according to some or an unpaid guard according to others.1<i class="footnote">Later on 45a, there is a dispute between R’ Yehuda and R’ Mayer about the laws governing a lessee. There is another dispute among the amoraim about who holds that he has the laws of an unpaid guard and who holds that he has the laws of a paid guard.</i>
  [The] unpaid guard and the borrower. The order in the Torah for the guards is:1) שומר חנם – unpaid guard2) שומר שכר – paid guard3) שואל – borrower4) שוכר – lesseeThe Braita when presenting the guards does not follow the order of the Torah. What logical order is it following? An unpaid guard is not liable for any occurrences such as theft, loss and unavoidable accidents, except for negligence. By contrast, a borrower is liable for all occurrences even accidents, with the exception of the animal dying because of labor it was doing. These are the extremes; the paid guard is somewhere in the middle.And a paid guard is liable for some occurrences such as theft or loss and is not liable for accidents. This is why the Braita mentioned them in this order and not in the order in which they are written in the parsho. 
  
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  Two types of a man who damages. In response to the question, why does the Braita mention a person who damages and the list another series of ways that a person damages, the Gemara answered we are speaking about two distinct cases of a person who damages. The first section of the Braita is referring to a person who damaged an animal, whereas the second section of the Braita is referring to a person who damaged another person. This answer begs another question.And if you ask: since the Braita is being more specific than the Mishna and taught two distinct cases of a person who damages; he should also teach us about three avos of shor: the keren, the shain and the regel? And we can answer: that the Braita is content to incorporate all the avos of shor in shor as did the tanna of the Mishna.1<i class="footnote"> This answer of Tosafot requires some explanation. We still remain with the question why did he treat a person different than he treated the shor. Tosafot could just as easily have said that he wanted to treat the person in the Braita as he treated him in the Mishna and just write a person and nothing more. There must be some reason that he saw fit to elaborate about a person and not to elaborate about shor. The גליון of Tosafot cited in שיטה מקובצת suggests that the distinct laws of keren versus shain and regel are mentioned specifically in the Torah. There is no need for the Braita to bring attention to the distinct avos of shor. He therefore uses the word shor to collectively describe all the avos of shor. However, the difference between a person who damages another person, who must pay the four things and a person who damages an animal, who need not pay the four things is not specifically mentioned in the Torah. It is derived by expounding the verses in Parashat אמור. Since it is not openly written in the Torah, the Braita had to call attention to this by discussing two distinct cases of a person who damages.</i>
  
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  And conspiring witnesses. Zom’mim witnesses are disqualified by a second pair of witnesses who testify that the first pair could not possibly testify about the subject because they were elsewhere with us, the second pair, at the time the proceeding were supposed to have taken place. The rule of Zom’mim witnesses is that they are penalized with the punishment that they wanted to inflict upon their victim. If they were testifying about a capital offense, they are put to death. If it was a financial matter, they must pay their intended victim the amount that they said he was obligated to pay.In capital cases there is a very interesting rule for the zom’mim witnesses. They are liable as long as their intended victim has not yet been put to death. If however, he has already been executed, they are not liable for the death punishment. This is derived from the verse that describes their punishment as כאשר זמם as they planned to do, ולא כאשר עשה but not as they actually did. Tosafot discusses the application of this rule to a financial offense. Why does Tosafot choose this venue to discuss this matter? Two reasons are offered by the Acharonim:A)	The Braita is listing zom’mim witnesses as a damager. If he is liable only when the verdict is not carried out, how can he be listed as a damager? When he actually damaged by having the victim pay, he is not required to pay. When he is required to pay, the victim did not suffer any damages. Since the Braita list him as a damager, it must be that he is required to pay even if the verdict was already carried out.B) The Gemara later calls the payment of zom’mim witnesses’ ממונא a financial payment as opposed to a קנס a fine. If the rule was that he only pays when the verdict was not carried out, how could one possibly say that this is a financial payment and not a fine? Tosafot needs to show us how we know that they pay even after the verdict has been carried out.Riva explained: that even if the victim already paid based on the testimony of the zom’mim witnesses, they are liable to pay the victim. The rule “as they planned but not as they did” does not exempt them in financial matters because the unjust payment can be returned to the victim. Capital punishment is final. It cannot be undone. When somebody pays money on the basis of false testimony, the money can always be returned to its rightful owner. In this context one never really can be exempted because of ולא כאשר עשה, for in financial matters כאשר עשה is never really final.Tosafot offers another explanation for the ruling that zom’mim witnesses must pay in financial matters even if the verdict has already been carried out. And R’I explains that the reason offered by Riva is unnecessary, because as far as financial matters are concerned we can hold them liable for their false testimony by a kal v’chomer. If one is liable for planning to wrongly cause his victim to pay, he should certainly be liable if he did already pay. For in regard to money matters we can punish based on a kal v’chomer.And that which the Gemara says in that when they already killed the victim, they, the witnesses, are not killed, that is because we cannot inflict capital punishment based on a kal v’chomer. R’I understands that כאשר זמם is not an exemption for one who already did. If it were an exemption it would apply equally to money matters as to capital offenses. Rather, it is a statement that the Torah specifically punished the witnesses when the verdict was not executed. Any other conviction must be based on a new derivation. Kal v’chomer can be used to establish a punishment in money matters, but not in capital cases.
  
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  One who pours [another's wine] as a libation [for idolatry].There are those who disagree about the meaning of in this Braita in One holds that we are discussing one who actually pours wine before an idol as a form of idol worship thus rendering the wine prohibited and the other holds that we are discussingone who mixed wine that was prohibited because it had been used in the service of idols together with kosher wine thus rendering the kosher wine useless.
  
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  Didn't Rabbi Akiva break [the force] of his fist? The Gemara has stated that the Braita does not present the opinion of R’ Akiva about an ox that injures a person who is liable for full payment even the first time it damages. Tosafot wants to explain why the Braita cannot present this opinion. We will soon see Tosafot’ objection to Rashi’s explanation.One cannot say that because we are taught in the Braita that he, the tam who injured a person pays from his body, which indicates that he is a regular tam who only pays half,we now know that R’ Akiva changed his mind, and no longer holds that a Tam that injures a person pays in full.In Shemot 21, 28, the Torah is discussing an ox that gores a person. First the law of a tam is discussed and then the law of a muad. In verse 31, the Torah says “whether it gores a boy or it gores a girl, in accordance with this law shall be done to him”. Our rabbis disagree about the meaning of “in accordance with this law”.For in Chapter Hamaineeach (later 33a), the Gemara clearly states that R, Akiva says that the payment for a tam that gores a person is “in accordance with this law” (Shemot 21, 31), the law mentioned last in the verse, the muad that pays in full, and not the law mentioned first, the tam that pays half. The same Braita continues, one might think that he must pay from the choicest etc. and the Braita proceeds to teach that payment is from its body. We see that the same Braita that teaches us that R’ Akiva holds that the tam that injures a person pays in full also holds that it pays from its body. This disproves the contention that when R’ Akiva realized that a tam pays from its body he retracted about the full payment as well. And according to Rashi’s explanation there also is a difficulty. For he explained:1<i class="footnote">The text of Tosafot’ quotation of Rashi is inaccurate. See the gloss on the side of the page. In place of “even though” it should read; “what emerges is” that sometimes the tam will not pay in full but only what the ox is worth.</i> that even though there will sometimes be less than full payment, because the ox is not worth the full value of the damage, and since there will not always be full payment the Braita does not mention it. This is inadequate; in any case the Braita should teach two types of shor, because sometimes there will be full payment. Even though there will not always be full-payment, the fact that there will sometimes be full-payment is sufficient reason for Tam that injures a person to be listed. And we can answer: that since the tam that injures a person pays only from its body, it cannot be listed together with the other avos, because later (on this page) we say that they, those listed in the Braita of R’ Ḥiyya, are all like avos in regard to the fact that they pay from the choicest. It is only the fact that they pay from the choicest that qualifies them as avos. The tam that injures a person that does not pay from the choicest cannot be listed with the other avos. 
  
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  The rapist, and the seducer, and the defamer, which are monetary restitution. The Gemara asked that the rapist, seducer and slanderer be included in the Braisa because there is a payment of damages (shame and a reduction of value) in addition to the fine. Tosafot points out that this is true only in reference to the rapist and the seducer, and not for the slanderer.For the slanderer there isn't any financial payment at all, only the hundred silver pieces and those are a fine. However the Gemara mentions him, the slanderer, because of the others. This trio usually appears together throughout the Gemara and that is why the slanderer is mentioned here together with the others.1<i class="footnote">See Otzar HaTosafot who quotes Tosafot of Rabbeinu Tam who actually removes the slanderer from the text of the Gemara.</i>
  
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  One who causes to become ritually impure, and one who mixes. The Gemara asked that these should also be included in the Braisa of R’ Oshayo. Tosafot says that this question could have been deflected simply.The Gemara could have said that they were not listed because they are not liable when the damage was done unintentionally, whereas all the avos are liable when done intentionally or unintentionally. Since they need not pay if the damage was unintentional and thus they are different than the other Avos mentioned in the Braisa.
  
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  If it were recognized as damage. The Gemara seems to be upset with the fact that R’ Chiya’s Braisa would hold that unrecognizable damages are not considered damages.Tosafot wonders why? Ḥizkiyya who holds the position that they are considered damages is refuted in Perek Hanizakin (Gittin 53:), if so, why does the Gemara feel that it must find a way to reconcile the Braita with that refuted opinion? And even though Ḥizkiyya who says that unrecognizable damage is called damage is refuted in HaNizakin (Gittin 53b), even so, the Gemara would be more contented to establish the Braita of R’ Ḥiyya his father to concur with him. 
  And teaches damage that is not evident. The Gemara answered that there is a need to mention forms of damage that are unnoticeable. Tosafot questions why is it necessary to mention three different forms?And the reason that the Braita teaches three varieties of unnoticeable damages is because they are taught together in פרק ניזקין, Gittin 52b. This system of mentioning all three varieties of unnoticeable damage because they are taught together elsewhere, even though it is only necessary to teach one in order to bring out the desired point is already employed in the Braita. In order to teach us that one is liable for indirect damage on 4b the Braita taught an unpaid guardian, the borrower, a paid guardian and the lessee. It is unnecessary to mention all of these to make his point, even so he taught many varieties of indirect damage, because elsewhere they are always mentioned together.
  
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  He taught the number to exclude. Usually the word למעוטי means to exclude. If taken literally the Gemara is saying that our Mishna is excluding R’ Oshayo’s avos. This implies that the Mishna does not agree that they are avos. Tosafot tells us that we should not make the error of thinking that our Mishna actually holds that they are not avos.This term to exclude the avos of R’ Ḥiyya, is not because he does not hold of R’ Ḥiyya’s avos. R’ Oshayo definitely agrees that they are avos. Rather, what is meant is that they are excluded from the Braita because he is not discussing them. He chose not to list them in his Braita because he did not want to discuss fines.
  
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  To exclude an informer, etc. The Gemara says that R’ Ḥiyya’s count excludes an informer and one who renders another’s sacrifice pigul. Tosafot tells us that those exclusions are not the only ones.The Gemara could have said that the count comes to exclude the payment of kofer and the thirty sh’kolim for the death of a slave who is killed by keren. And the reason that the Braita does not teach them is because he is not discussing payments for the death of the victims.And an informer and one who renders another’s sacrifice pigul,1<i class="footnote"> Tosafot explanation is for the informer. He is considered one who damages indirectly, since he does not actually take away his victim’s property himself. One who renders another’s sacrifice pigul is a direct damager as Tosafot explain on 100a ד"ה טיהר.</i> even according to the one who does not hold one liable for indirectly causing a damage, in these cases are liable because of a fine instituted to discourage such actions. This can be seen in the Gemara in Hagozel Batra 117a.2<i class="footnote"> The Gemara on 117a discusses whether an informer is liable for violating a law or because of a fine. Tosafot understanding is that the one who holds that one is liable for indirect damage holds that it is a law and the one who does not hold one liable for indirect damage holds that an informer is liable because of a special fine.</i>
  
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  Speech that involves an action. The Gemara defines the slanderer who is damaging his wife primarily by what he is saying about her, as דיבורא-words that are accompanied by an action. What is the action?For in פרק נערה, Ketubot 46a, R’ Eliezer B’ Yacov says that these words, the punishment of a slanderer, were only said when he, the husband, had relations with her, and that is the action that causes liability. And R’ Yehuda holds there that the slanderer is not liable until he hires witnesses to testify falsely.1<i class="footnote"> Rashi and the Rashba both identify the actions as having relations with her as is the opinion of R’ Eliezer B’ Yacov. It is a bit puzzling that they do not mention the hiring of witnesses as Tosafot does. Some suggest that perhaps they hold that hiring witnesses is not considered a direct action as is having relations with his victim. See Otzar HaTosafot note 763.</i>
  
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  All of them are characterized as primary categories to pay from [one’s] best. It appears from the Gemara’s answer that the avos mentioned in the Braitas of R’ Oshayo and R’ Ḥiyya are called avos only because they pay from the choicest. It seems that to be liable to pay from the choicest is a characteristic reserved for avos and not for toldos. This is not true as Tosafot points out.And even though the toldos of the avos of our Mishna also pay from the choicest which shows that paying from the choicest is not reserved only for avos, if so, why does the Gemara say that they are called avos because they pay from the choicest? However, those avos of R’ Ḥiyya and R’ Oshayo, if they were not called avos by the Braita we would not know that they pay from the choicest. There is reason to believe that this group is weaker than the others. The Gemara said that R’ Oshayo did not list R’ Ḥiyya’s avos because they are fines. Our Mishna does not list R’ Oshayo’s avos because some of them are indirect damagers. Perhaps there is no requirement to pay from the choicest. Since they do not have Toldos, the designation as avos can only mean that the Braita intended to elevate them to the level of other avos that they pay from the choicest.
  
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  In place of giving, etc. Rashi ד"ה תחת נתינה in a lengthy exposition of all the words and avos shows how we can derive that each av pays from the choicest. The derivation of בושת -embarrassment is a bit vague. Rashi says it may be included in the תחת mentioned in the Torah in the verses dealing with a rapist or in the verses dealing with one who wounds another. Tosafot brings to our attention that there is another source that he feels is more reasonable.In Sifrei we learn that embarrassment is paid from the choicest from the verse in D’vorim 25, 12, “you shall cut off her hand1<i class="footnote"> Our Rabbis teach that this verse is not to be taken literally. It means that she must pay for the embarrassment she inflicted on her husband’s opponent.</i> and you shall not show pity”. In that verse we see that one is liable for embarrassing another person and he learns from the zom’mim witnesses where it is also written in D’vorim 19, 21, “and you shall not show pity” that just as the zom’mim witnesses pay from the choicest, so too, embarrassment is paid from the choicest. And it should not be said that this is a regular “common word” method of learning, because the Gemara here does not say that we learn that avos pay from the choicest from תחת, נתינה and עיניך.Since our Gemara does not include the word עיניך among the four words of the “common word” method, it seems that our Gemara does not hold that this derivation is a proper “common word”.2<i class="footnote">Tosafot’ understanding of this situation is a bit puzzling. Tosafot obviously disagrees with Rashi who offered another exposition to learn that embarrassment is paid from the choicest. That is why he presents the Sifrei’s method of learning this law and infers that our Gemara concurs with Sifrei. He also says that this is not a proper “common word”. If so, what is it? Some suggest that the common word system is limited to one word in a sentence. Since the verse dealing with embarrassment and the verse dealing with zom’mim witnesses are exactly the same “and you shall not show pity”, this goes beyond the “common word” system and may be used to derive laws from one to the other even when the rules governing a “common word” derivation would not be satisfied. Rashi understands that our Gemara does not subscribe to the Sifrei precisely for the reason that Tosafot suggests. Since our Gemara does not list עיניךas one of the words of the "common word" method,it does not subscribe to that derivation and he therefore offers other sources.</i>And as far as the zom’mim witnesses themselves, Rashi says that we learn that they pay from the choicest because it is written about them נפש בנפש “a life for a life”, even though the word תחת does not appear in that verse, the meaning of the verse is understood as if תחת was written in the verse and that is sufficient for the “common word” method.Zom’mim witnesses present an interesting dilemma. They usually pay exactly as they planned to cause their victim to pay. If so, why do we need to learn that they pay the choicest, let us see what the victim would have paid?And we must say that even when they testify falsely about a tam ox that damaged that does not pay from the choicest, or they testified that p’lonee owes p’lonee3<i class="footnote">This is the Gemara’s way of saying, somebody owed somebody.</i> a moneh, one hundred zuz, whose law is to pay from the poorest,4<i class="footnote">By biblical law a creditor is paid from the poorest. By Rabbinic decree he is paid from the medium quality. Some correct our Tosafot to reflect the rabbinic ruling.</i> the zom’mim witnesses pay from the choicest, even though this not what they planned to do to their victim.Tosafot is basing his conclusion on an obvious question. Why is it necessary to have a verse teach us that zom’mim witnesses pay the choicest? For if they sought to make their victims pay from the choicest, we would not need a verse to teach us that they pay from the choicest, because we would learn from כאשר זמם that we do to them as they planned, that they are liable to pay from the choicest. Just as they planned that their victim would pay from the choicest, so too, they must pay from the choicest. The additional verse is necessary to teach us that even when they did not plan that their victim should pay from the choicest; the zom’mim witnesses still pay from the choicest.
  
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  What is [the Mishnah] saying? The comparisons of subjects by the term לא ראי are legion. The Gemara never seems to have a problem understanding them. Why does the Gemara here suddenly need to ask; what does he mean?Because this לא הרי cannot be explained1<i class="footnote">Tosafot 2a ד"ה לא הרי השור explains that in our Mishna the term לא הרי means that the leniency of shor is not as great as the leniency of bor. Elsewhere the term usually means that the stringency of (a) is not as great as the stringency of (b).</i> as the all other לא הרי that appear throughout the Talmud, the Gemara wonders, what was meant? 
  
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  In place of giving, etc. Rashi ד"ה תחת נתינה in a lengthy exposition of all the words and avos shows how we can derive that each av pays from the choicest. The derivation of בושת -embarrassment is a bit vague. Rashi says it may be included in the תחת mentioned in the Torah in the verses dealing with a rapist or in the verses dealing with one who wounds another. Tosafot brings to our attention that there is another source that he feels is more reasonable.In Sifray we learn that embarrassment is paid from the choicest from the verse in D’vorim 25, 12, “you shall cut off her hand1<i class="footnote"> Our Rabbis teach that this verse is not to be taken literally. It means that she must pay for the embarrassment she inflicted on her husband’s opponent.</i> and you shall not show pity”. In that verse we see that one is liable for embarrassing another person and he learns from the zom’mim witnesses where it is also written in D’vorim 19, 21, “and you shall not show pity” that just as the zom’mim witnesses pay from the choicest, so too, embarrassment is paid from the choicest. And it should not be said that this is a regular “common word” method of learning, because the Gemara here does not say that we learn that avos pay from the choicest from תחת, נתינה and עיניך.Since our Gemara does not include the word עיניך among the four words of the “common word” method, it seems that our Gemara does not hold that this derivation is a proper “common word”.2<i class="footnote">Tosafot’ understanding of this situation is a bit puzzling. Tosafot obviously disagrees with Rashi who offered another exposition to learn that embarrassment is paid from the choicest. That is why he presents the Sifray’s method of learning this law and infers that our Gemara concurs with Sifray. He also says that this is not a proper “common word”. If so, what is it? Some suggest that the common word system is limited to one word in a sentence. Since the verse dealing with embarrassment and the verse dealing with zom’mim witnesses are exactly the same “and you shall not show pity”, this goes beyond the “common word” system and may be used to derive laws from one to the other even when the rules governing a “common word” derivation would not be satisfied. Rashi understands that our Gemara does not subscribe to the Sifray precisely for the reason that Tosafot suggests. Since our Gemara does not list עיניךas one of the words of the "common word" method,it does not subscribe to that derivation and he therefore offers other sources.</i>And as far as the zom’mim witnesses themselves, Rashi says that we learn that they pay from the choicest because it is written about them נפש בנפש “a life for a life”, even though the word תחת does not appear in that verse, the meaning of the verse is understood as if תחת was written in the verse and that is sufficient for the “common word” method.Zom’mim witnesses present an interesting dilemma. They usually pay exactly as they planned to cause their victim to pay. If so, why do we need to learn that they pay the choicest, let us see what the victim would have paid?And we must say that even when they testify falsely about a tam ox that damaged that does not pay from the choicest, or they testified that p’lonee owes p’lonee3<i class="footnote">This is the Gemara’s way of saying, somebody owed somebody.</i> a moneh, one hundred zuz, whose law is to pay from the poorest,4<i class="footnote">By biblical law a creditor is paid from the poorest. By Rabbinic decree he is paid from the medium quality. Some correct our Tosafot to reflect the rabbinic ruling.</i> the zom’mim witnesses pay from the choicest, even though this not what they planned to do to their victim.Tosafot is basing his conclusion on an obvious question. Why is it necessary to have a verse teach us that zom’mim witnesses pay the choicest? For if they sought to make their victims pay from the choicest, we would not need a verse to teach us that they pay from the choicest, because we would learn from כאשר זמם that we do to them as they planned, that they are liable to pay from the choicest. Just as they planned that their victim would pay from the choicest, so too, they must pay from the choicest. The additional verse is necessary to teach us that even when they did not plan that their victim should pay from the choicest; the zom’mim witnesses still pay from the choicest.
  [They] are forewarned. The Gemara says that keren cannot be derived from all other avos because all other avos are initially muadim. The term initially muadim indicates that they pay in full even the first time they damage while keren is first a tam and pays half the first three times it damages. Tosafot will show that we cannot accept this simple understanding of the Gemara. Later on Bava Kamma 15a there is a dispute among the amoraim about the half payment of a tam. Rav Papa says that it is a monetary requirement. This means that an ordinary ox is assumed to be a potential damager even as far as goring by keren is concerned. His owner should be aware that he needs to be guarded to prevent him from goring others. Therefore, when one fails to guard his ox he is liable for failing to fulfill his obligation to prevent his ox from damaging. Since this reality is not immediately apparent to the ox owner, the Torah was lenient with him and requires only half payment until it is actually established that his ox is a muad.Rav Huno son of R’ Yehoshua says that an ordinary ox is not a potential damager and need not be guarded. The half payment is a fine that the Torah placed upon the owner in order to encourage extra preventative measures.One should not explain that the term initially a muad refers to the rule that they pay in full as opposed to keren which pays half, for if that were so we would learn from the other avos that keren also pays full. Since it would not be written that keren pays half,1<i class="footnote"> The Gemara at this point is working under the premise that keren would not be written in the Torah and we would learn keren from bor and one of the other avos.</i> we would learn keren from all other avos and we would assume that it pays in full as do all other avos. Rather, Rabbeinu Tam explains that the term initially a muad refers to the fact that it is usual for them to damage, which is not true of keren, because ordinary oxen are assumed to be guarded according to the one who holds that half payment is a fine. Keren is not as likely to damage as are the other avos and it could therefore not be learnt from the other avos.In our Gemara the opposing opinion is presented as the one who holds that keren is more likely to be liable. According to him keren can be derived from the other avos by a kal v’chomer since he damages intentionally. Rashi says that that it is not clear who the author of this opinion is. Tosafot will inform us who he believes is the author of this opinion.And the one who says: to the contrary, keren is more likely to be liable because of his intent to damage, that is in accordance with the one who says half payment is a monetary payment, because it is common for oxen to damage and they are not assumed to be guarded. And not as Rashi says that the author of this opinion has not been clarified.Note:You will notice in the text of your Gemara that there are parentheses around most of the text of the Tosafot. There is a great controversy about whether this is actually a part of Tosafot. The objection to the text of this Tosafot is based primarily on Tosafot ד"ה אש, so we will wait till after we learn that Tosafot and then discuss the various opinions.
  
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  ...Their [unique] halakhot. It appears from the Gemara that the only purpose for the Torah writing each and every one of the avos is because of the unique laws that they each have. According to Tosafot analysis the Gemara did not have to say that we would be lacking the unique laws of each of the avos. There is one general law that applies to all of the avos that would be lacking if bor was one of the source of the damagers, the liability for vessels.The Gemara could have said that each and every av had to be written explicitly, for if they were not written, rather, we would derive them from one of the others and bor, we would exempt vessels from liability by all of the avos. Since they would all be derived from bor which is exempt for damaging vessels all the other avos would also be exempt for damaging vessels. The Gemara did not have to say that writing all the avos is necessary only because of the distinctive laws of each one. Perhaps this problem about the exemption of vessels could be resolved by adding aish which is not exempt for the destruction of vessels and all of the other avos could be derived from aish and one of the others? That is why the Gemara says that all the avos needed to be written only because of their unique laws.And if we would learn all of the other avos from any one of these avos and aish, we would have to exempt hidden objects from liability by all of the avos. Adding aish would not result in a situation where the avos needed to be written only for their unique laws. There would still be a general rule that would be lacking even after the addition of aish; liability for hidden objects.The Gemara has explained why the Torah had to write all of the avos, but why is the Mishna written as it is which leads us to believe that all the avos needed to be written because otherwise we could not learn them from each other?And our Mishna taught us in the format of that leads us to believe that each and every av had to be written, otherwise we would not know of it, only to make the Torah great and beautify it. As we study the Mishna in this format we become aware of the weaknesses and strengths of each of the avos which give us a greater understanding of the avos. This greater understanding beautifies the Torah. Eventually as we study we become aware that some of the avos could have been derived from bor and one of the others, so we are ultimately not misled.
  
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  Pit to exempt for [damage to] vessels. The Gemara said that bor had to be written. It could not be derived from any of the others, since it is the only one that does not travel. Why did the Gemara say that bor was written for its unique law, the exemption of vessels? Bor had to be written because it could not be derived from the others.As the Gemara is in the mode of listing the special laws of the other avos it also mentions the unique law of bor. At this point in the Gemara it was not necessary to mention the special law of bor because bor cannot be derived from the other avos and definitely needed to be written in the Torah.
  
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  Fire to exempt a concealed [object]. The Gemara seems to be saying that the only reason aish had to be written in the Torah is for its unique law that when aish destroys hidden objects it is exempt. Tosafot point out that this is not the only reason aish needed to be written.The Gemara could have said that aish was written so that it should be liable for destroying vessels, because aish cannot be derived from any of the live damagers. It can only be derived from any one of the others and bor which is exempt for the destruction of vessels, aish would then also be exempt for damaging vessels. The explanation of the Gemara that aish was written to teach us the exemption of hidden objects is only one of the reasons that aish had to be written.It is apparent from this Tosafot that if aish were not explicitly written in the Torah, it could be derived from bor and aish would also be exempt for destroying vessels. According to this Tosafot the problem seems to exist only for aish, but not for the other avos. This contradicts what Tosafot says in ד"ה להלכותיהן where it seems that this problem would be true of any av derived from bor and one of the others. Tosafot said there that all of the avos would have a general exemption for damaging vessels because they would all be derived from bor while here Tosafot is saying that only aish would have the exemption for vessels not the other avos. Based on this contradiction, Maharshal deletes most of the text of that Tosafot. Maharsho defends the text:This Tosafot is saying that if we would attempt to learn any of the avos from each other, ultimately aish would be exempt for vessels. For example we could learn that regel is liable from keren and shain. Either sources are liable for vessels, thus the derivative, regel, would also be liable for vessels. However, aish could not be derived from any of the live damagers, because we have seen in the Mishna that a spirit of life is a stringent characteristic that aish does not have. It can only be derived from bor which is also not alive, but if it is derived from bor it would have the exemption for vessels. That is why our Tosafot says that the problem of the exemption for vessels is true of aish as opposed to the other avos, because aish can only be derived from bor. The other avos might each be derived from two of the other avos, where there is no exemption for vessels in either of the sources.But why does the previous Tosafot indicate that the exemption for vessels would apply to all of the avos? Maharsho explains that the previous Tosafot is discussing the particular phrase of the Gemara that says all the avos could be learned from bor and one of the others. Tosafot correctly says that if bor was one of the sources, all the other avos would be exempt for vessels.The Tosafot ד"ה אש is considering learning any one of the avos from any two of the others, this can be done without using bor as a source. Thus all the others would not have the exemption for vessels. Aish which can be derived only from bor would have the exemption for vessels.
  
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  If, according to Rav, who says, etc. The Gemara is now searching for an application of the common characteristic method from which we learn a category of damage that is not specifically mentioned in the Torah. The Gemara suggested that one’s stone, knife or load which was left where the wind blew them away and brought them to a rest in a public domain might qualify. The Gemara said that if the owner relinquished ownership, that can be learned directly from bor and no other source is necessary. According to Shmuel, even if the owner did not relinquish ownership, that too can be derived from bor. In some texts of the Gemara it says: that if the owner relinquished ownership, according to Rav that can be learned directly from shor. See Tosafot 3b ד"ה משורו where he explains that according to Rav shor alone is an insufficient source and it is necessary to use bor as a second source for liability according to Rav. If so, the Gemara could not ask here: that according to Rav, they can be derived from shor, for they cannot be derived from shor alone. According to Rav they are a perfect example of what can and needs to be derived from the common characteristic.We do not have this text as we explained earlier (3b תוספות ד"ה משורו).
  
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  What about Pit in that there is no other force involved with it? The Gemara rejects the original contention that a stone, knife and load that were left where the wind could blow them away, which then came to rest in a public domain and damaged there, could be derived from bor. The Gemara refutes the comparison to bor by arguing that שכן אין כח אחר מעורב בו the creation of a bor comes about solely through the efforts of the bor digger whereas the stone, knife and load must combine with another power, the wind, to become a damager. There is another refutation that the Gemara might have used to show the strength of bor as compared to the weak point of one’s stone, knife or load: שכן מעשיו גרמו לו, that his own action caused the damage, which is true of bor but not of the stone, knife or load which were assisted by the wind. The Gemara later (on this page) uses this refutation. Why does the Gemara sometimes use one description of bor as a refutation and sometimes another? Tosafot addresses this issue.למאי דפריך 1<i class="footnote">It seems that the proper text is כדפרישית as we explained, not כדפריך -as was asked.</i>דלא חשיב אש מעשיו גרמו לו לפי שהרוח מסייע לו ה"מ למפרך הכא מה לבור שכן מעשיו גרמו לו תאמר באבנו וסכינו According to what we explained (5b Tosafot כי שדית) that aish cannot be described as “his action causing the damage” because the wind assists the fire and the damager is therefore not totally a result of his own actions, the Gemara could have refuted the derivation from bor by saying; how can you compare the stone, knife and load to bor where his own action causes the damage? Is it logical to say that the same rule should apply to one’s stone, knife and load where it is not only his action that caused the damage, but the wind as well assisted in the creation of the damager? Why does the Gemara choose to refute the derivation from bor with the argument that the stone, knife and load had to combine with another power?Tosafot is now going to tell us that the less avos that can be used to contradict the refutation, the better the refutation. If there are many avos that show that a refutation is not true, then initially the refutation is not very strong.But because the refutation of the comparison to bor, that bor is not combined with any other power is a more effective refutation, the Gemara uses this refutation. Why is this refutation more effective? Because one cannot rejoin this refutation by presenting shor as proof that this factor does not preclude the status of a damager. Shor definitely does not have the weakness that it is combined with another power. It does have the weakness that it is not one’s action that caused the damage; the action of the shor is not one’s own action. Shor could be presented as proof that the refutation, it was not caused by his own action is inaccurate, but it cannot be presented as proof that the refutation it is combined with another power is inaccurate, because shor does not combine with another power. Only aish alone can be presented as proof that combining with another power does not preclude designation as a damager. Since only aish can be used as a rejoinder to the refutation, the stone, knife and load combine with another power, the Gemara chooses that refutation, as opposed to the refutation, a bor is his own action, which could have been refuted by shor as well as aish.In the Gemara’s next answer of what is learned from the common characteristic the Gemara discusses a stone that was left in a public domain but did not damage at the location where the owner left it. It was rolled about in the public domain and damaged after it landed. There, the Gemara does use the refutation; that a bor is stronger because his own action caused the damage as opposed to the stone that was rolled about which caused damage only after someone else rolled it to its new location.Why is that refutation of the comparison to bor used there and not the refutation that bor is not combined with another power as opposed to the stone which was kicked about that needs to combine with another power? And later by the bor that is rolled about by people or animals that kick the stone, the Gemara refutes the comparison to bor with the argument; how can you compare the kicked stone to bor? Bor has the quality that his own action caused the damage, which the kicked stone does not. It was the one who rolled it to its final location whose action caused the damage. Why does the Gemara use the weaker refutation that can be disproved by shor and aish and not the stronger refutation, that another power combined with his own which can only be disproved by aish? For it is not possible there to refute the comparison to bor with the argument that the bor is not combined with another power as opposed to the rolled stone which combines with another power, for how would we say at the conclusion of the argument; can you say the same for a bor that is rolled about which combines with another power that it is also liable? That argument would imply that the stone that was rolled about only becomes a bor by combining with another power. But that is not so, because it initially becomes a bor without combining with any other power when it was placed in the public domain. At that point it was a bor without combining with any other power, later when it damaged after it was kicked about, the damage was not the result of his action. It was the result of the action of those who kicked the stone to its new location.
  
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  To add [the halakha concerning] the rolled pit. In our text of the Gemara, which is Rashi’s text, the Gemara speaks only of a stone that was rolled to a second location and damaged there. The possibility of the stone damaging as it rolled is not discussed. There are two possibilities:a) That the kicker is liable because it is his power that caused the damage.b) There is a shared liability. The obstacle owner is liable for leaving the stone in a public domain and the kicker is liable for not being careful as he walked and kicked the stone to the point that it damaged.Tosafot will discuss both possibilities.In all the books it is written after the Gemara mentions a bor that was rolled about; if as they were moving they damaged, it is his, the kicker’s, power? His power is an extension of himself and the kicker should be liable as a person who damages. And Rashi says that we should not include this text in the Gemara. And his reason is because the Gemara says later in המניח (Bava Kamma 27b) it is not the norm for people to be cautious as they walk on the roads. One cannot be held liable for kicking a stone on the road since he usually would not notice that the stone was there.And the one who left the obstacle there also cannot be held liable as a person who damages through his power which is an extension of himself, but only because he left his stone in an area where the likelihood of it being rolled about is comparable to a common wind and it, the stone, is like his fire which damages together with the wind. So too, the stone that was left where people would kick it about damages together with the power of the people who kick it. According to Rashi, the rolling stone cannot be thought of as the power of the person who left it there or the power of the kickers. It can only be thought of as the aish of the person who left it in the public domain where it would travel by the power of people or animals that kicked it.And one should not erase this text because of this, Rashi’s dissatisfaction with the text. Because as far as people not walking with such force that a stone might spring and damage, it certainly is the norm to be cautious about how one is walking and he should be held liable if he kicks a stone and it damages others. And that is why the Gemara asks according to the variant text; it is his, the kicker’s, power and the kicker should be entirely liable and not the obstacle owner? This is possibility a).1<i class="footnote"> See Rashba who has a slightly different text of this Tosafot that suggests that there should be shared liability between the obstacle owner and the kicker.</i>Tosafot concludes that when a person leaves an object in a public domain and another person kicks it and it damages, it is the kicker who is liable. Tosafot shows us that there is a parallel case where the Gemara indicates otherwise. And even though as far as a dog that took a biscuit together with a coal and went to a wheat stack etc. and subsequently burned the wheat stack (Bava Kamma 21b) the Gemara asks (Bava Kamma 23a); and let the coal owner also be liable? Because he is the owner of the obstacle, the coal that burned the wheat stack. We see that the Gemara there holds that the coal owner should also be liable (possibility b) and not only the transporter of the coal while here the Gemara is arguing that the transporter, the kicker should be liable and not the stone owner. That is because the dog is not an intelligent being and should therefore not be entirely liable for transporting the coal that was negligently left where he could take it, but here the roller is an intelligent being and should be entirely liable for kicking the stone. We will prove this point, that an intelligent being is more readily liable for transporting or using a damager than the creator of the damager. For if one kindled a fire and another person burned his neighbor’s garment with that fire, or if one dug a bor and another came and pushed an ox into the bor, it is not logical that the bor owner or aish owner be liable. Although they created the damager, it is the other person who used the damager who is liable, so too, when one leaves a stone in a public domain and another kicks the stone and it damages it is the kicker who should be liable.Up until this point Tosafot has focused on a stone left in a public domain that was kicked by a person. He has presented his reasons for the liability of the kicker. However the Gemara discusses a stone that was kicked by animals as well. The animal is not an intelligent being. Should he also be entirely liable for damages caused by his kicking the stone? And the stone that was rolled by the feet of an animal, if it damaged as it moved both should be liable,2<i class="footnote"> For a detailed discussion of the nature of this shared liability, see Rosh and Maharsho.</i>the animal owner and the obstacle owner.One of Tosafot primary arguments is that a person who uses someone else’s damager such as kicker who kicks another’s stone, should be entirely liable, just as a person who pushes an ox into a bor. This ruling, that one who pushes an ox into a bor is exclusively liable is now scrutinized. And that which the Gemara says later in Chapter הפרה (Bava Kamma 53b), an ox and a person who pushed another ox into a bor, as far as damages are concerned they are all liable. This implies that even the bor owner is partially liable. This contradicts our assumption that a person who pushes an ox into a bor is entirely liable. How do we reconcile this contradiction? One must say that there the Gemara is speaking about a person who did not intend to push the ox into the bor. And since he had no intent at all, the person is similar to an animal and the bor owner is also liable as is the non-intending person.Now that Tosafot concludes that Rovo on 53b is discussing a non-intending person, we must view the remainder of Rovo’s statement and see if a non-intending person is compatible with other rulings of Rovo in that Gemara.And that which the Gemara says there, in the discussion of an ox and a person who pushed another ox into a bor, as far as the matter of the four things and the payment for fetuses are concerned; only a person is liable. Those four things are: damages, pain, medical expenses and time lost from work, but for embarrassment one is not liable unless he intended to damage as the Gemara says in החובל (Bava Kamma 86a). And the four things of that Gemara on 53b are not the same as the four things mentioned earlier on 5b, for there (on 4b) he does not count damages among the four. The fourth is embarrassment.We have shown that the four things mentioned by Rovo could be speaking about a person who damaged unintentionally. There are other damagers that Rovo discusses there on 53b. And that which Rovo says (later 53b) as to the matter of kofer that one is liable to pay when his ox kills a person and the thirty sh’kolim of a slave that one is liable to pay when his ox kills a slave, the ox alone is liable. One must say that the ox is liable only when it intended, even though the ox being discussed is not similar to the person, about whom we have concluded that he did not have intention to harm. For without intention of the ox to harm there is no payment of kofer or thirty sh’kolim of a slave as the Gemara says at the end of שור שנגח ד' וה' (Bava Kamma 43a).
  
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  If [you would say so] regarding the pit which [was dug] without permission. It appears from the Gemara’s refutation that the bor discussed in the Torah was never allowed to be there and it is always illegal. What about a bor that a person dug on his own premises? He certainly was allowed to dig it on his own property. Later at some time he relinquishes ownership of that property and it becomes part of the public domain. Here it seems that we have a situation where the bor was created legally and even so the original owner is liable. Why does the Gemara say that the presence of a bor in the public domain is always illegal? Tosafot explains:For even if the bor was made legally in the bor owner’s property and afterwards he relinquished his ownership, as soon as he relinquishes ownership and he allows the public access to the bor, that is illegal. The very act of relinquishing ownership which gives the public access to a bor that could harm them is illegal. See Otzar HaTosafot note 985 who elaborates on this matter.
  Would you say [the same] regarding these [which were dug] with permission? [The case of] the ox proves [otherwise]. When faced with the refutation that bor is liable because it was illegal to have the bor in a public domain as opposed to emptying the waste pipes or allowing the sewage into the public domain which is legal and therefore one might not be liable, the Gemara presents shor as proof that one may legally be in the area where the damage occurred and still be liable. The shor may of course be in the public domain and even so he is liable for damaging. Tosafot scrutinizes the assumption that the shor’s presence in the area that he damages is legal. And if you ask: According to the one who holds that the Tano of our Mishna taught shor to inform us that he is liable for damage he causes with his regel, how does the Gemara say that shor proves that even when one is legally in the place that he damages he is liable, but regel is only liable when the ox damages on the property of the victim and he has no legal right to be there?And we can answer: the regel to which the Gemara is referring is for example, the animal was walking in a public domain and it causes stones to jump and subsequently the stones damaged vessels in a private domain bordering the public domain for which the ox owner is liable, as the Gemara says later on Bava Kamma 19a. It was legal for the ox to be in the public domain and even so his owner is liable. This proves that one can be liable even if it was legal to be in the place where he caused the damage.
  
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  A wall or a tree that fell into the public domain and caused damage, [the owner is] exempt from paying. This is our text: A wall and a tree that fell into the public domain and damaged, the owner is exempt from paying.And so too, is it written in the books of Rashi and in the book of Rav Alfas, and this is accurate. Since we see that even after they are notified to chop down the tree or dismantle the wall by a specific time they are exempt until the time passes, then certainly before they were ever notified they are exempt.However, those books where it is written: the owner is liable to pay before he was notified to cut down the tree and dismantle the wall, are not understandable. For if even before the owner was notified to chop down the tree or dismantle the wall he is liable, it is not likely to be lenient with him, to exempt him, when they notify him to cut down the tree or dismantle the wall. Logic dictates that there is greater reason to hold him liable after he was notified than before he was notified.
  
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  If declared ownerless, according to Rav and to Shmuel, this is [a subcategory of] Pit. The Gemara is quite certain that if the owner renounces ownership of the fallen tree or wall he is liable according to all opinions.And if you ask: it is understood in the Gemara later in המניח (Bava Kamma 29b) that according to all opinions, one who renounces ownership of his hazards, shards of a broken jug, after an unavoidable accidental fall is exempt for damages that the shards cause. And this tree or wall that fell is also the result of an unavoidable accidental fall. For during the building of the wall or planting of the tree that he did, he was not negligent at all. Later, the falling of the wall or tree is definitely accidental. Why is the Gemara here saying that after the fall, the wall or tree is a bor and the owner is liable?And we can answer: Since they were notified to cut down the tree and dismantle the wall by a specific time so that they should not damage others, and the time passed, that inaction is negligence. And later when he renounces ownership that is equivalent to renouncing ownership after a fall caused by negligence for which one is liable.
  This is [a subcategory of] pit. Raveeno says that we learn from the common characteristic the liability for one’s tree or wall that fell after they had been notified by the court to remove them. Throughout our Gemara, in its analysis of each case presented, the Gemara would query: if they damaged while they were moving that is a toldoh of aish. In this case the Gemara does not ask this question. Tosafot suggests that this case may be unlike the others and perhaps even while the wall or tree is moving as it falls it might be a toldoh of bor. In the course of the Tosafot all the possibilities will be discussed. There are two time periods to which the Braita about the tree and the wall may be referring:a) As the tree or wall are falling.b) After the tree or wall already fell. This can be subdivided into another two periods: before and after there was sufficient time to remove them.It seems that the Braita is speaking of where the wall or tree damaged during the fall itself and even so the Gemara compares this to bor. How can we see this? Since the Gemara does not say here: if they damaged as they moved that is a toldoh of aish. By not expressing this argument the Gemara seems to be indicating that there never is a period where the tree or wall is a derivative of aish as opposed to bor.Tosafot offers two more proofs that the period the Gemara is discussing is during the fall:And another reason to believe that the Braita is discussing the damage that happens as they fall is that if it was discussing the period after the fall, why is the owner exempt, as soon as they fell he should have removed them?1<i class="footnote">If we are discussing cautioning then owner that his wall or tree are weak and they need to be cut down, it makes sense that this is something that the court needs to do. Not every person is capable of judging when a tree or wall is so weak that they must be cut down. However, if we are discussing a fallen tree orwall, there is no need to inform the owner that they are hazard to the public, it is self evident.</i>And yet another reason to believe that the Braita is discussing the period during the fall is, for if it was so, that the Braita is discussing the period after the fall, the Braita should not have said that they were given time to cut down the tree and dismantle the wall, rather, the Braita should have used the phrase they were given time to clean away and remove the tree or wall, since the Braita is speaking of the period after the fall.Tosafot has demonstrated the Braita is discussing the damage that happens as the tree or wall fell. This is not our common conception of bor, which generally damages in a stationary position.Even though bor does not travel to damage, and these, the tree or wall, are traveling and damaging, we can still derive them from bor. For they are more likely to be liable for damaging than bor, since they travel and damage as opposed to bor that does not travel and damage, but damages in its place.We will soon see why the Gemara does not want to derive the falling tree or wall from aish, which is more similar to the tree or wall damaging as they fall.After determining that the Braita is discussing the period as the tree or wall fall, Tosafot takes a second look at the period after the fall. And it appears that that the Braita could also be discussing the period after the fall, and he is exempt from payment despite our previous objection that he should be liable for what happens after they fell. Why and when would the owner be exempt? For example when it was not known to its owners that they had fallen, or they already knew and they were not able to remove it so quickly.This explains why Tosafot second proof that the time period of the Braita must be during the fall, is not necessarily so. Tosafot will now deal with his third proof: the text of the Braita that discusses measures taken to prevent damage during a fall and not after the fall.If the Braita is discussing the period after the fall, why does the Braita speak of measures that are taken to prevent the tree or wall damaging as they fall? And the reason that the Braita did not teach, they gave him time to remove it and clean it away, which is appropriate if we are discussing the period after the fall, is because the Braita is not speaking exclusively about the period after they fell but it is also speaking about the damage that happens during the actual fall. And the phrase they gave him time to cut down and dismantle means to include cleaning them away. Certainly the court did not intend that the tree or wall should be left in the public domain.2<i class="footnote"> When the court orders one to chop down a tree or dismantle a wall, it is understood that they may not be left in the public domain where they are a hazard to the public.</i>Based on the present understanding that the Braita is discussing two time periods, during the fall and after the fall before they could be removed, we will gain a better perception as to why our Gemara is satisfied with the designation of these damagers as bor even as they are falling. And now we can better understand why the Braita compares the falling tree or wall to bor, more so than to aish. Even though during the time they are falling they are as similar to aish as they are to bor. For they differ from aish in that they do not combine with another force as aish combines with the wind, and they differ from bor in that they are not initially made to damage. If so, why are they compared to bor? The reason they are compared to bor is because in the time period after they fell that the Braita is also discussing they cannot be compared at all to aish but only to bor. Since in the second period they must be bor, the Braita also speaks of them as bor in the first period.
  
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  The one liable for the damage is obligated. The Gemara here insists that the word חב should not have been used in our Mishna, rather the word חייב. Tosafot explains why the Gemara here questions the use of the word חב and elsewhere it does not. The word חב generally implies something detrimental or damaging is happening to the subject. חייב usually means that the subject is obligated to pay or liable for a punishment.In other places the Gemara does not object as it does here to the use of the word חב. For example, in Gittin 11b, חבין אין-we may only do something that is detrimental to a person in his presence1<i class="footnote"> The Mishna in Gittin 11b is discussing a person who was designated as an agent to deliver a divorce document to a woman and a manumission document for freeing a slave. The Rabonon rule that he cannot automatically act as an agent for the woman without her knowledge to accept the divorce for her, because the divorce is essentially detrimental to her – she loses her food and clothing, whereas the agent automatically becomes an agent for the slave even though he was not appointed as the slaves agent, because it is beneficial to the slave to be freed. As soon as the agent receives the manumission document the slave is freed and the owner cannot change his mind. The husband can change his mind as long as the divorce document has not been delivered to his wife.</i> as opposed to something that is beneficial to him which need not be done in his presence. Or in Bava Metzia 10a one who seizes assets of a debtor for the benefit of a creditor where it is חב-detrimental to others. Because in those places it is not feasible to use the word חיוב obligation or liability, the Gemara in those places is not discussing an obligation or liability, rather the word חובה that usually means injurious or harmful.
  
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  [According to] Rabbi Yishmael, [if one's animal] ate [from a] rich [garden plot]. The Gemara is asking why an animal that consumed a sparse plot of vegetables should have to pay for a bountiful one. The Gemara introduces its question with the words “he ate a bountiful plot, he pays for a bountiful plot”. Tosafot is searching for the correct meaning of this introduction.This means: It is perfectly sensible that if an ox consumed a bountiful plot he pays for a bountiful plot, but if he consumed a meager plot why should he pay for a bountiful one?In this context the sentence “he consumed a bountiful plot, he pays for a bountiful one” is used only as an introduction to the question. Tosafot offers a second explanation, in which this sentence is a point of reference: i.e. since the first statement is obviously true, we must therefore question the truth of R’ Yishmo’ail’s ruling that when he ate a meager plot he must pay for a bountiful plot.Alternatively, its meaning is as follows: since when an ox consumes a bountiful plot his owner pays only for a bountiful plot, and we do not impose a fine on him to pay more than he damaged, if so, when he consumed a meager plot, we should also not impose a fine on his owner to pay more than he damaged and require of him to pay for a bountiful plot.The Gemara’s question assumes that according to R’ Yishmo’ail one has to pay more than he damaged. The Gemara does not entertain that idea according to R’ Akiva.And if you ask: Why is the Gemara more prone to err about the statement of R’ Yishmo’ail, thinking that he means that if an ox ate a meager plot his owner must pay for a bountiful one, more so than in the statement of R’ Akiva. Perhaps R’ Akiva is also saying that if an ox consumed a meager plot his owner must pay with the most bountiful of plots in his fields.And we can answer: That the reason that he was more prone to err in the words of R’ Yishmo’ail is because of how R’ Akiva’s response is phrased. R’ Akiva says; the verse comes only to teach that the victim collects from the choicest. Use of the word only implies that R’ Akiva heard from R’ Yishmo’ail that the verse comes to obligate the damager for more than he damaged. For example, if the ox consumed a meager plot, the ox owner must pay for a bountiful plot. Based on this understanding the Gemara questioned the view of R’ Yishmo’ail until it clarified his position.
  
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  Like [the case where] the best-quality [land] of the injured [party] is equal to the inferior-quality [land] of the one who is liable for damages. After a serious exchange of ideas, the Gemara concludes that the dispute between R’ Akiva and R’ Yishmo’ail is about a situation where the victim’s highest quality field is equivalent to the damager’s lowest quality. Rabbi Yishmo’ail says that the requirement of the Torah that the victim be paid with the choicest is fulfilled by the victim receiving a field equal to his own finest as payment for the damages. Rabbi Akiva holds that the requirement that the victim be paid with the choicest is fulfilled only when the victim receives the finest field of the damager as payment. Of course, according to both the amount paid is the amount of the damages. The dispute is about the quality of the field used to make that payment. What about a situation where the damager does not have a field that is as good as the victim’s finest? Does the damager have to purchase a field that is equivalent to the victim’s finest to fulfill the obligation of the choicest according to R’ Yishmo’ail who holds that payment is made with the victim’s choicest?The Gemara could not have said that the dispute is in a reverse situation, where the victim had finer fields than the damager, for all agree that the damager only pays with the finest that he has and he does not have to purchase finer fields than he owns with which to pay the victim. As the Gemara says later (Bava Kamma 7b), when one only has poor fields, and he owes for damages, debts and a marriage contract, all, the victim of damages, the creditor and his wife who is collecting her marriage contract collect from the poorest quality fields. It is evident that the damager need not purchase finer fields to satisfy his obligation to the victimOn 7b there is an opinion that the choicest meant by the posuk is assessed by world standards. It is possible that both the damager and his victim have fields that are equivalent to the world’s choicest and even better fields. However, if they, the courts, assess finest and poorest by world standards,1<i class="footnote">See 7b, towards the bottom of the page, where the Gemara introduces a dispute about whether the standard of finest and poorest is determined by world standards or by the qualities of the particular individual. See Tosafot there,ד"ה אליבא who explains that this question is relevant only according to R’ Akiva. However, according to R’ Yishmo’ail there is no question that we measure finest and poorest according to the property of the victim.</i> the Gemara could have spoken about a reverse situation. For example, the poorest of the damager is equal to the worlds finest and the victim also has property that is as good as the damager’s finest. According to R’ Akiva the damager pays with his poorest that is equivalent to the worlds finest and according to R’ Yishmo’ail the damager pays with the finest of the victim, which is also his own finest.Rav Huno says later in the Gemara (Bava Kamma 9a) that a damager may pay with cash or the finest. According to this view cash and the finest are interchangeable and one satisfies the obligation to pay the finest by paying with cash.And even according to the one who says that they, the courts, assess finest and poorest according to the damager’s property, the Gemara could have also spoken of a reverse situation. For example, the damager does not have property as fine as the finest of the victim. According to the one, Rav Huno, who says the damager can satisfy his obligation with cash or the finest, he would pay cash according to R’ Yishmo’ail, because the damager’s finest does not satisfy the requirement of finest in this instance, and according to R’ Akiva he pays only with his own finest, which is poorer than the victim’s finest.2<i class="footnote"> According to R’ Akiva the damager fulfills his obligation to pay with the ‘finest’ since he is using his finest field. According to R’ Yishmo’ail he cannot fulfill the obligation with a field that is of lesser quality than the victim’s finest field. If he does have cash, he must use cash to pay for the damages in order to fulfill the obligation to par with the finest.</i> 
  
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  Ox of another, etc. See end of Tosafot for a general outline of the steps of this Tosafot.The Gemara here quotes only this source as proof that when a private individual’s ox damages an ox that belongs to the temple treasury, there is no liability. Tosafot will first prove that this ruling is not unique to keren; it applies to all damagers and to a person who damages as well. Then Tosafot will show how we know that this exemption applies to all of the avos.In the Braita R’ Akiva stated that we learn from a kal v’chomer that one who pays damages to the temple treasury should pay from his finest property. The Gemara challenged this statement by arguing that we have a ruling that when a privately owned ox gores an ox that belongs to the temple treasury, he is exempt and there is no payment at all. The Gemara attempts to apply the kal v’chomer to other situations where one might owe money to the temple treasury. It never tries to apply the kal v’chomer to other primary damagers. This is bewildering. And the Gemara should say that the Braita is speaking about shain and regel that damaged a field belonging to the temple treasury and is telling us that payment must be made from the choicest. For there in regard to shain and regel the phrase “his friend” that excludes the temple treasury is not written and we can assume that one is liable for damaging temple properties by shain or regel. But perhaps we should learn from keren that just as keren is exempt when it damages temple property, so to shain and regel are exempt when they damage temple property? And from keren we cannot derive that shain and regel are exempt because keren is weaker than shain or regel and therefore more likely to be exempt, since it is not initially a muad as are shain and regel.The Gemara said earlier on 5a that we learn that all avos pay from the choicest from a textual comparison that encompasses four words תחת נתינה, ישלם and כסף. Perhaps that common word dedrivation can be used to teach that all avos are exempt when they damage the temple treasury?And with the textual comparison of תחת, נתינה, ישלם and כסף, we can also not learn that all avos are exempt for damaging the temple treasury properties, for that גזירה שוה was received from Sinai only as far as the topic of payment from the choicest is concerned, to teach us that all avos must pay from the choicest and not to learn that the special exemptions of all the individual avos apply to all the other avos.For if it was meant to teach that the special exemptions of the individual avos apply to all the damagers and not exclusively to teach that the manner of payment is from the choicest, all the avos should be exempt for damaging hidden objects which can be learned from aish, in a public domain which can be learned from shain and regel, and for damaging vessels and disqualified sacrifices which can be learned from bor.Tosafot will now demonstrate that all damagers, even a person are exempt from payment when damaging the Temple treasury and he will also show us how this is derived.And we can answer: that all damagers are exempt when damaging the temple treasury property as is evident from Yerushalmi at the beginning of Haneezokin. The Yerushalmi says there during a discussion of the kal v’chomer that the temple treasury should be paid from the choicest: what circumstances are we discussing? If we are discussing payment for damages, we have learned in a Braita, one is liable for damaging the ox of his friend and not the ox of the temple treasury. At this point Yerushalmi discounts any possibility for payment of damages to the Temple treasury even for shain and regel.Yerushalmi continues:And if we are discussing damages by his person, R’ Ḥiyya has taught in a Braita, one is liable for damages to a private individual and not for damages to the temple treasury. Rather, we must be discussing one who says, I am hereby obligated to give a moneh, one hundred zuz, to the fund for repairing the house of Hashem. What emerges is that there is no possibility of paying damages to the temple treasury, neither for shain and regel nor for a person who damages. The only case that one is liable to pay the temple treasury is when one says I hereby accept upon myself to give a moneh to the fund for the repair of the House of Hashem.And so it seems from our Mishna that teaches (Bava Kamma 9b) when the Mishna list the condition under which one is liable for damages, that one of the conditions for payment of damages is that the damaged property be such property that does not carry liability for illegally benefiting from the temple treasury, in other words private property. And that requirement refers to all avos mentioned in our Mishna and even to a person who damages; according to the one who says that maveh in our Mishna refers to a person.There is one source that seems to contradict Tosafot assertion that all avos including a person are exempt for damaging the temple treasury properties.And that which Shmuel says in Hasho’ail (Bava Metzia 99b) when expounding the verse that discusses the liability for eating t’rumoh, the gift from agricultural produce to the Kohanim, “when one will eat”, “eat”, implies that one benefits this excludes a person who damages the T’rumoh as opposed to eating it, who does not pay an additional fifth. It appears from the Gemara there that this exclusion applies to the additional fifth that one must add when eating T’rumoh but for the principal the damager is liable. This contradicts Tosafot contention that all damagers are exempt when damaging the temple treasury property. That payment for the principal is rabbinic law. Biblical law exempts a damager from any payment to the temple treasury funds.Tosafot is satisfied with his conclusion that all damagers including a person are exempt when damaging temple treasury property. What remains to be seen is how the Gemara knows that this is so. The Gemara does not tell us any source for exempting all damagers, but we do know that there are exemptions for some of them. We have seen that there is an exemption for keren, שור רעהו, and for a person, כי יאכל that excludes a damager.And it appears: that the other damagers that are exempt when they damage temple treasury property are derived from a combination of keren, a person and a bor. The bor is exempt for disqualified sacrifices1<i class="footnote">The Gemara later on (Bava Kamma 53b) says that when a disqualified sacrifice falls into a bor, the bor owner is exempt from damages. The Torah says about an ox falling into a bor “and the carcass shall belong to him”. This indicates that the payment of damages is in effect only when the ox owner has a financial interest in the carcass. In the case of disqualified sacrifices the owner only has the right to eat the animal, once it is dead there is nothing he can do with it.</i> 2<i class="footnote">Many are puzzled with the need for bor as a third source from which to derive the exemption for damaging temple properties. As Tosafot continues it is fairly evident that the exemption can be derived from keren and a person who damages. Some suggest that perhaps bor is needed to teach that all other avos are exempt for damaging disqualified sacrifices. See Otzar HaTosafot for a lengthy discussion of this question.</i> and by a kal v’chomer for temple treasury property.And if you ask: how can we learn shain3<i class="footnote">The same question and answer apply to regel whose damage is common as compared to other avos.</i> from this combination? Shain has a stringent characteristic that none of the sources have, it derives pleasure from its damaging.The refutation, that shain has a characteristic that none of the others have cannot be denied. We must resort to another system of comparing shain to the sources in order to arrive at the conclusion that shain too is exempt when damaging temple treasury property.And we can answer: that even though there is a specific aspect of shain that is stronger than a person who damages it is nevertheless more appropriate that a person should be liable for damaging with his hands4<i class="footnote">A euphemism for damaging with one’s person.</i> than to be liable for “sending his animal”.5<i class="footnote">The verse that discusses shain begins with the expression “he will send his animal”.</i>Tosafot has concluded that once we know that a person is exempt when damaging temple treasury properties, it follows that if his property damages the temple treasury properties he should also be exempt. We must now review the other sources that were quoted as proof of a general exemption for damaging temple treasury properties.And if you ask: The term “his friend” that comes to exclude keren that damages temple property, why is it necessary for the Torah to write a second exclusionary word? It can be derived from the verse that discusses t’rumoh “when one will eat” that excludes one who damages without benefiting as it says in Masechet M’eeloh (Meilah 19a), the Torah compares the temple properties to t’rumoh. Just as of t’rumoh it is written “when one will eat” to exclude a damager, so too, for temple properties, for any item which is edible that one damages, he is exempt. And the Gemara does not specifically mean only edible items that are damaged; one is exempt for damaging inedible items as well. (See Rashi and Tosafot there אקשיה רחמנא לתרומה ד"ה.)Earlier in this Tosafot there was some speculation about whether the exclusion of damaging t’rumoh applies only to the additional fifth or to the principal as well. Tosafot now uses this problematic point to explain why the Torah had to write an exclusion for keren as well.And we can answer: if we would not find that a damager of temple properties is exempt, we would expound the verse “when he eats” which excludes a damager, only to exempt the damager from the additional fifth, but he would still be liable for the principal. It is only because we see that the Torah excluded keren from any payment whatsoever for temple property that we say that a person is also totally exempt.Until this point Tosafot has assumed that one who damages temple property is exempt even from payment for the principal not only for the additional fifth. We have learned that the exclusion for damaging temple property is derived from the laws of t’rumoh. Tosafot will now deal with the fact that for t’rumoh itself we find that the damager is liable for the principal.And even though the phrase “when one will eat” is written about t’rumoh, and there regarding t’rumoh a damager is liable for the principal, which seems to contradict our contention that one is entirely exempt when damaging temple property. The payment for the principal of t’rumoh is different, for there he is damaging the property of the kohain. T’rumoh is a unique situation of double ownership. A section of the produce is set aside to permit eating the rest of the produce and it is sanctified with the holiness of t’rumoh. If at that point in time the owner of the produce eats the t’rumoh he is required to replace the t’rumoh and add a fifth. If he destroys the t’rumoh he is not liable at all, as we have learned “when he will eat” excludes a damager. Once the t’rumoh is given to a kohain, in addition to being t’rumoh it is also the property of the kohain. If one damages the t’rumoh at this time he is liable to pay the principal to the kohain just as if he had damaged any other property of the kohain. In any case liability for the principal of t’rumoh is not derived from this verse, “when he will eat”, this verse would exempt him even from the principal, as it in fact does when there is no kohain involved, rather, the source for his liability is from another verse, because he, one who damages the kohain’s t’rumoh is comparable to one who steals from his neighbor and/or damages him. It is only for the kohain’s private ownership after the t’rumoh was given to him that a damager is liable for the principal.Tosafot now reverts to questioning his original solution about the source for the exemption for damaging temple property; that the exemption for damaging the temple properties for all avos is derived from three sources, keren, a person who damages and bor.However, according to the one who says (Bava Kamma 26a) that one is liable to pay kofer when his animal kills a person with its regel, the exemption for damaging temple property cannot apply to regel. One can refute the derivation by arguing how can you compare regel to keren, a person who damages and bor to learn that the leniency that they are not liable for damaging temple property applies to regel? Regel is not as lenient as they are. For if one kills a person through keren, personally or bor, one does not pay kofer for the first violation,6<i class="footnote">A person or a bor that kills does not pay kofer at all. Keren does pay kofer, but not for the first violation. They all share the same leniency that they do not pay kofer for the first violation.</i> but regel does pay kofer for the first violation. The leniency of the others cannot be transferred to regel because we find that regel is more stringent than they are.But according to R’ Tarfon who holds that a tam, first time violator, pays full kofer the derivation is sound.Due top the complexity of this Tosafot, we will offer a general outline of the various steps of this Tosafot.A) Tosafot asks that perhaps shain and regel are liable for damaging Temple property.Tosafot shows that keren cannot be used as a source for exempting all the avos, either:1) As a בנין אב, 2) Or via a גזירה שוה- common word derivation.B) Tosafot shows from Yerushalmi and our Mishna that the exemption for damaging Temple property applies to all avos, and that the Gemara in Bava Metzia that indicates there is liability for the principal is only by Rabbinic law.C) Tosafot concludes that the general exemption is derived from three avos: keren, a person and bor.D) Tosafot asks how can shain (and perhaps regel) be derived from all three, it is more stringent.E) Tosafot answers that ultimately a person should be more liable for his own damage than for the damage of his animal.F) Once we know that a person is exempt for damaging Temple property, why do we need any other source?G) Our understanding that there is total exemption even for the principal comes from the verse about keren.H) The verse כי יאכל is discussing t’rumoh and there is liability for the principal when one destroys t’rumoh.I) That liability is in effect only when dealing with the aspect of t’rumoh that is the property of the Kohain.J) Regel has a stringent ruling that it is liable for kofer the first time it kills, which all of the sources do not have.K) R’ Tarfon holds that keren also pays kofer the first time. 
  
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  Rabbi Akiva holds in accordance with Rabbi Shimon. The Gemara originally held that R’ Akiva agrees with the Braita that holds that “שור רעהו-the ox of his friend” comes to teach us that one is not liable for damaging an ox of the temple treasury. The Gemara now says that R’ Akiva does not agree with that Braita, rather, he holds like R’ Shimon Ben Manasyo that the verse is teaching us that there is a greater liability when a privately owned ox damages an ox of the temple treasury; he is immediately liable for full payment even the fist time he damages. Since R’ Akiva holds that the liability to the temple treasury is greater than to a private individual, the kal v’chomer that the payment should be from the choicest makes perfect sense. However, by attributing this position to R’ Akiva there are some other problems that must be dealt with.This is bewildering. Earlier (Bava Kamma 5a) when the Gemara said that the Braita that listed zom’mim witnesses as one of the avos is following the opinion of R’ Akiva, the Gemara should ask; if it is in fact the opinion of R’ Akiva the Braita should list two types of shor, a shor that damaged a privately owned ox and a shor that damaged an ox owned by the temple treasury? The Gemara there asked this question concerning the opinion of R’ Akiva that a shor that damages a person pays in full even the first time. The Gemara found a reason why that could not be listed in the Braita. The Gemara’s answer there is not valid here.Why does the Gemara there not raise this question?And we can answer: That Braita is not discussing one who damages temple property.The Gemara is now satisfied that according to R’ Akiva who holds that one pays in full to the temple treasury even for a first violation there is a valid kal v’chomer that the payment should be from the choicest. Tosafot now challenges the validity of the kal v’chomer. But this is difficult, even if R’ Akiva holds like R’ Shimon Ben M’nasyo that one is liable for full payment even the first time one’s ox damages temple property, let the Gemara refute the kal v’chomer that payment to the temple treasury should be from the choicest with the following argument. How can you compare payment to the temple treasury to payment to a private person in order to learn that the payment to the temple treasury should be from the choicest? The private person is more potent than the temple property because he is paid when damaged by a person whereas when a private person damages temple property he is exempt, as we have seen in the last Tosafot on 6b. This is derived from the verse regarding t’rumoh “when one eats” that excludes a damager. It therefore follows that the mode of payment to the temple treasury should not be as stringent as to the private individual.And according to what we explained in the previous Tosafot on 6b that we expound the verse “when one will eat” to exclude a damager, that he does not pay at all even the principal only because we have the term “his friend’s ox” describing an ox that gores, to exclude an ox that damages temple treasury property. If we did not have the verse exempting the ox that gores temple property we would say the verse “when one eats” only excludes a damager from the additional fifth but not for the principal as Tosafot explained at length earlier. According to R’ Shimon Ben M’nasyo we in fact do not have the term “his friend’s ox” to teach us that an ox who gores temple property is exempt, because he uses that verse to teach us that the payment to the temple treasury is more stringent and one pays in full even for the first violation. We remain with the derivation from “when he eats” alone unsupported by what was learned from “his friend’s ox”, and that only excludes a damager from the additional fifth. If so the argument that a private person is stronger because he is paid when damaged by a person is untrue, for the temple properties are also paid when they are damaged by a person.But one difficulty remains, the Gemara could refute the kal v’chomer that temple treasury property should be paid from the finest by arguing that a private person is more potent than the temple property because he is paid when damaged by a bor whereas the temple property is not paid at all when damaged by a bor.
  
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  And furthermore what [of]: all the more so [concerning] consecrated property? The Gemara is now suggesting that perhaps R’ Akiva and R’ Yishmo’ail have no dispute about the manner of payment and both agree that the payment is from the choicest of the victim even though the damager has property of a finer quality. Their dispute might be only about whether one is liable to pay damages to the temple treasury or not. The Gemara rejects this possibility with the question: what is meant by the Braita that says there is a kal v’chomer that the same should be true for temple property? Rashi and Tosafot dispute the meaning of this question.Rashi explains: Since the phrase “from the choicest” that R’ Akiva is discussing refers to the choicest property of the victim, which is equal only to the inferior quality of the damager, and this ruling comes as a leniency for the damager, that the damager can pay with his own inferior property; in what way is there a kal v’chomer for temple property which implies that temple property will have a stronger position as a result of applying the kal v’chomer? Ultimately, the damager paying with his inferior quality is weakening the position of the temple property not strengthening it. This is Rashi’s opinion. Tosafot now challenges this explanation:His explanation is difficult to understand, because ultimately R’ Akiva’s opinion is not weakening the rights of the holy property but strengthening it. For R’ Yishmo’ail totally exempts a damager of temple property and R’ Akiva holds him liable for the complete damage.On this point it is clear that R’ Akiva is strengthening the position of the temple property.And as far as payment from the “choicest” as well, there is a strengthening of the temple treasury’s position: that his payment must come from the equivalent of the victim’s finest fields and not from the equivalent of the victim’s poorest fields.On this point as well R’ Akiva is strengthening the position of the temple property and the term kal v’chomer that temple property should be stronger is appropriate.And it appears to R’I that this is the explanation:R’I will argue that the Gemara is not questioning the substance of this kal v’chomer but rather its use in the argument between R’ Akiva and R’ Yishmo’ail. We must keep in mind that there are two points in R’ Akiva’s ruling:a) That one is liable for damaging temple property.b) That one must pay with the equivalent of the choicest fields of the victim, in this case the temple treasury.What is the kal v’chomer for temple property teaching us? As far as the issue of liability for damaging temple property (point a) the kal v’chomer was not mentioned as the source, because that is learned from the verse quoted by R’ Shimon, “the ox of his neighbor” and not from the kal v’chomer.Rather, the kal v’chomer was said in reference to the issue that payment is made from “the choicest” (point b). But R’ Akiva should not have responded to R’ Yishmo’ail that there is a kal v’chomer to prove that payment to the temple treasury must be made from the choicest of the victim, since R’ Yishmo’ail would agree with this kal v’chomer, if not for the fact that he holds that there is no payment at all. There is no disagreement about the substance of the kal v’chomer, only if it can be applied to payments to the temple treasury.
  
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  He shall recompense, to include [any item] worth money and even bran. In Chumosh Vayikra Parashat B’har (Vayikra 25:51) we also find the word ישיב in reference to the redemption of a Jewish slave.In the first Chapter of Kidushin (Kiddushin 8a, l6a), we also expound the verse the same way to teach us that one may use bran and need not give cash concerning the redemption of a Jewish slave from a gentile owner:It seems that one of these words and the lesson learned from it is unnecessary.And there must be some necessity for both.1<i class="footnote"> Tosafot here does not inform us why it was necessary to have both verses to repeat the lesson that any item of value, even bran, can be substituted for cash. One solution mentioned in Tosafot 2a ד"ה בפרוטה קידושין is that if the Torah said bran is acceptable for payment of damages we would say that it is not true for redemption of a Jewish slave because his sale into slavery is a punishment for violating the laws of sh’meetoh. If the rule were stated by a Jewish slave alone, we would say that the Torah was lenient about the redemption of a Jewish slave so that he should not remain in the possession of an idolater but that leniency does not apply to the payment of damages. Therefore it is necessary for the Torah to inform us of this leniency in both places.</i>
  
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  "He shall pay" [indicates that he does so] of his own volition. The Gemara (Hulin 130b) quotes a Braita that discusses a wealthy person who was traveling from place to place and ran out of cash and supplies. He needs to take from the gifts of the poor for his survival. R’ Eliezer says that he may take them and when he returns to his home, ישלם-he must pay. The Gemara considers the possibility that this law is not obligatory but pious behavior. The Gemara reacts to this suggestion wondering: the Tano uses the word ישלם and you are saying he means pious behavior?And if you should ask: that in Chapter Haz’ro’a (Hulin 130b) it is evident that the word ‘ישלם-he must pay’ implies that one must pay even against his will. The Gemara says there in reference to R’Eliezer’s opinion that a wealthy person who took some of the gifts of the poor, when he was away from home and did not have any money with him must repay the money when he arrives home. The Gemara suggests that it might not be obligatory but only pious behavior. The Gemara counters: The Tano taught ‘ישלם-he must pay’ and you argue that it is only pious behavior that has been taught here? We see that ישלם clearly means he must pay.And we can answer: the Gemara there has only said that it is not “pious behavior” but rather he is liable according to the law. It does not imply that he will be forced to pay.And Rabbeinu Tam also says that the Gemara means as follows: the Tanna taught ‘ישלם-he must pay’, this is the opinion of R’ Eliezer and the Rabbis disagree. And you say that this is “pious behavior”. This cannot be, for if R’ Eliezer meant that the payment is only “pious behavior” the Rabonon would not disagree with him. They would certainly agree that it is “pious behavior” to repay. The Gemara is proving that R’ Eliezer did not mean that it is pious behavior to repay from the disagreement of the Rabonon, not from the word ישלם. And besides, one must explain the Gemara there as we have explained. It is not the use of the word ישלם which precludes ‘מדת חסידות’ but the context in which it is used. 
  
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  He who owned houses, etc. The Braita is discussing the calculation of a person’s assets in order to determine whether he is eligible to receive charity.The Braita is not discussing houses in which he lives. Because the Mishna clearly states in Pai’oh that we do not require the poor man to sell his house and the utensils he uses.
  
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   If everyone [else’s] land appreciated [in value] … we should not provide him with even a slight [amount]. In order to understand Tosafot’ explanations of the Gemara, we must first review the Gemara according to the two explanations of Rashi.1) Rashi in his first explanation (which he favors) says that this Braita is discussing a poor man whose assets are hovering about the two hundred zuz poverty level. When the Gemara says: if everybody’s land also fell we should give him more, the Gemara means that since land values in general fell, he is truly a poor man since his assets are worth less than two hundred zuz. He is therefore entitled to take ‘טובא-as much’ charity as we can give him even though this gift will bring him above the two hundred zuz poverty level. He should not be limited to a gift of one hundred zuz. The word טובא refers to the amount of charity that we give him. The Gemara then argues that if his land actually is worth two hundred zuz and he is legally a wealthy person, but he cannot realize that amount because people are aware that he is desperate for cash, we should not give even פורתא a small amount of charity, because he is the cause of his own problems. He should not have behaved in a manner that leads people to believe that he is desperate for cash. The word פורתא that the Gemara uses refers to the amount of charity that he should receive.2) Rashi in his second explanation says that the Braita is referring to a totally different situation. According to this explanation the two hundred zuz poverty level is not the sole consideration used when determining if a person is entitled to receive charity. Another consideration is whether a person should be required to sell his assets below their value before accepting charity. The Gemara seems to hold that in order to avoid selling one’s property below their value one may take charity. According to this second explanation the Braita states that if a wealthy person cannot sell his assets for at least half of their value he may accept charity even if at present land values he is still worth more than two hundred zuz. The Gemara questions this as follows: If land in general has fallen and is expected to regain its value and it is only a matter of time, then even if he can realize טובא more than half of its value, he should not be required to sell his assets below their value. The word טובא refers to the amount he can realize from his sale, not to the amount of charity he may be given. If however land in general has not fallen, and this particular individual cannot realize the full value because he has let the market know that he is desperate for cash, even if he can only realize פורתא less than half of its market value he should not be allowed to take any charity at all since he is the source of his problems. The word פורתא also refer to the amount he can realize from the sale of his property.In summation we have two radically different explanations of the Gemara. In the first explanation the Gemara has only one barometer for allowing a person to accept charity, his net worth. If it is more than two hundred zuz, he may not accept charity. If it is less than two hundred zuz, he may accept charity. The question in the Gemara is how we determine his net worth. The words פורתא and טובא refer to the amount of charity we give him. According to Rashi’s second explanation the issue in the Gemara is not at all about a poor man, rather about a wealthy man whose net worth is always above the two hundred zuz level. The issue is how much below market value one must sell his assets in order to feed himself and his family, before resorting to taking charity. The words פורתא and טובא refer to the amount below market value he can realize from his assets. In view of our understanding of Rashi’s explanations we will now proceed to explain Tosafot.If the value of land in general is high and he cannot realize two hundred zuz from his property,1<i class="footnote">Tosafot seems to be discussing a person whose assets are hovering about two hundred zuz, which indicates that his basic understanding of the Gemara is like Rashi’s first explanation. Most Acharonim accept this understanding of Tosafot. There is some disagreement about how Tosafot interprets the words פורתא and טובא. See Maharsho. We will follow the explanation of Tiferes Shmuel printed in most editions of the Shas after Rashash and Maharitz Chayes.</i> we should not give him even a small amount2<i class="footnote">This explanation follows the Tiferes Shmuel mentioned earlier.</i> of charity. Even though he cannot find anyone who will pay him two hundred zuz for his assets and is technically a poor man, he should not be given even a minute gift of charity, because he caused the problem himself. And he was negligent, for he should not have gone in and out in search of cash and let everyone know that he is desperate for cash.Tosafot now interjects a new suggestion in the first explanation of Rashi. Keep in mind that in our explanation of Rashi, he is concerned with only one issue, the net worth of the individual. Are his assets worth two hundred zuz or not? Now Tosafot proposes that even according to Rashi’s first explanation, there are other considerations as well that may entitle one to accept charity.But if he was not negligent, even his assets are presently worth more than two hundred zuz, he may accept charity in order to feed himself and his family before selling his assets for less than their value.3<i class="footnote">Some are of the opinion that this last suggestion is deduced from the fact that the Gemara says that he cannot realize two hundred zuz because of his negligence. This implies that if this was not the result of negligence, for example people became aware of his need for cash not as a result of his going in and out searching for money; he would be entitled to accept charity.</i>And Rav Alfas explains that the Braita is discussing a wealthy person as in Rashi’s second explanation, whose assets even now when valued at the lower prices are worth more than two hundred zuz. And the words till half mean that he may accept charity until he will find someone who will buy them for at least half their value.And after the Braita we have the following text: If we say that everybody’s land has fallen and his land also fell together with everybody else’s,4<i class="footnote">Compare with our text אפילו טובא נמי ליספו ליה. According to Rif the words אפילו פורתא refer to the amount that he can realize from a sale, not to the amount of charity.</i> even if he can only realize פורתא, we should also not give him. The explanation of the words אפילו פורתא נמי לא ליספו ליה even if they fell so low that they will not give him even half of their original value, they should not give him charity, since everybody’s land fell in value and his are worth two hundred zuz at the present low prices. He is legally a wealthy man at the present market conditions and because he is less wealthy than he once was is no reason to give him charity.Rather, everybody else’s property remained high, and then even if he can realize טובא he should also be given charity. The explanation of the words אפילו פורתא נמי לא ליספו ליה is as follows: even if he finds customers who will give him5<i class="footnote">Compare with our text אפילו פורתא מצי לא ליספו ליה. Once again, according to Rif the words אפילו טובא refer to the amount he can realize from the sale and not to the amount of charity that he should be given.</i> more than half of the assets’ value, even so we should give him charity until he finds someone to whom he can sell the assets for their full value. For the reason that he cannot sell his assets for their value is because people see that he is in need6<i class="footnote">Rif rejects Rashi’s opinion that a person is negligent if he allows people to find out that he is desperate for cash. One truly does not have much choice but to go in search of a customer and this will eventually inform the market that he is in need of cash.</i> of cash and they are trying to take advantage of his misfortune. This is sufficient reason to allow a person to accept charity.In this text the words פורתא and טובא refer to the amount that can be realized from the sale of the assets. Tosafot now offers another version of the Gemara that is essentially the same as Rif’s explanation with one major difference: the words פורתא and טובא are reversed in the order of the Gemara and they refer not to the amount that can be realized from the sale but to the degree of the fall of land prices. As we proceed in this version we will see that the explanation of the concepts in the Gemara is the same as in the previous text. The difference is only in the wording.And there are those who have this text: If the land prices fell etc. even טובא they should also not give him. The explanation of the words טובא נמי לא ליספו ליהאפילו is as follows: even if the land prices fell enormously, they should also not give him charity, since they are worth two hundred zuz and everybody else’s land also fell. He is not a poor man and there is no reason to give him charity. And even if land prices fell only a bit, and he can realize almost its full value, but people want to take advantage of his desperate situation, they should give him charity. Not allowing people to take advantage of his situation is sufficient reason to allow a person to accept charity. The explanation of the words אפילו פורתא is as follows: even if land prices fell only a bit. 
  
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  In the days of Nisan land appreciates. The Gemara, searching for the circumstances under which the ruling of the Braita is correct says that the Braita is discussing the cyclical change of land prices. Rashi says that during Nison people pay more because they will be able to produce a crop for the coming season. During Tishrai prices are lower because there is insufficient time to prepare the land to produce a crop for this year.And if you ask: This cyclical change in price makes sense for fields as Rashi explains. For one can plow in the summer and plant in Marcheshvan (October), but as far as houses are concerned, what difference is there between Nison and Tishrai? And we can answer: That usually houses become more expensive during the season for renting houses1<i class="footnote">Meiri understands that the season for renting houses is also in Nison.</i> and after the houses are rented the price falls. 
  
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  We compare it to [a case of] a creditor. The Gemara was searching for a situation where we could apply the ruling of the cyclical change of price. The Gemara suggests that this could be true of a creditor. If his loan is collectable in Tishrai he is entitled to be paid from the middle quality fields of the debtor at the lower Tishrai prices. If he prefers to be paid with the lowest quality fields he must take them at the higher Nison prices.The Gemara rejects this suggestion because this would have a negative effect on a person’s ability to obtain a loan. The lenders will not want to give loans, because the fact that he gave a loan is being used against him. If he had his cash in hand he would be able to purchase the poorest quality field at the Tishrai prices, now because he gave the person a loan he must take the field at Nison prices. This will discourage people from giving loans.Tosafot wonders why the Gemara does not use the reasoning that it used earlier when the Gemara wanted to apply this ruling to a victim of damages. The Gemara said that forcing the victim to accept the middle or poor quality at Nison prices is weakening the position of the victim. The Torah says that he can collect from the finest and this ruling would in effect say that he cannot collect from the middle or poor quality at Tishrai prices. Why doesn't the Gemara use a similar reasoning here and argue that we are weakening the position of the creditor who can collect from the middle quality and you are saying that he cannot collect from the poorest quality if he so desires.And the Gemara could not have asked, if so, that the creditor must accept the poorest fields at the higher Nison prices, you have weakened the position of the creditor, who is entitled to collect from the middle quality at the lower Tishrai prices and you are weakening his position by ruling that when collecting from the poorest he must accept them at the higher Nison prices.Assuming that the Torah wanted to strengthen the creditor’s ability to collect his debt from the middle quality, the ruling that he must take the poorest quality at higher Nison prices is weakening his position.However, this argument is incorrect because the Torah never strengthened the power of a creditor as it does the power of a damages victim; rather the reverse is true his position is weak because according to Torah law the rule of the creditor is to collect from the poorest. The Torah was not concerned that the creditor is in a weak position, so that would not stop us from forcing him to accept the poorest at Nison prices. It is only because it would discourage potential lenders that we do not force a creditor to accept the poorest at Nison prices.
   Give me slightly more land of inferior quality. While the Gemara is searching for a situation where it can apply the cyclical change of price rule, the Gemara suggested that it might be speaking about a creditor who instead of taking one acre of middle quality fields wants an acre and a half of the poorest quality. At this point the Gemara believes that he can be forced to accept the poorest quality field at the higher Nison prices. There was a text in the Gemara that the creditor might be asking for a half acre of the prime quality and that he must accept that at higher Nison prices. Tosafot rejects that version of the Gemara. We do not have the text: or if the creditor wanted a bit less of the finest.1<i class="footnote">The Rosh does cite this text. See Pilpula Charifta note 8.</i> If we had this text the Gemara would then be saying that we do give him a half acre of the finest but at the higher Nison prices. For if that were so, why does the Gemara ask in response to the suggestion that we are dealing with a creditor who wants a bit less of the finest: if so, that you force him to take the finest at the higher Nison prices, you are locking the door in the face of borrowers who will not be able to obtain a loan if we force the creditor to accept the finest at the higher Nison prices. This would make sense if the creditor had a right to demand the finest and we would say that you must accept the finest at the higher Nison prices, but since it is not at all his right to collect from the finest, theoretically the debtor can ask for any price he wants for the finest even more than the Nison prices, allowing the creditor to receive the finest at the Nison price is actually improving the position of the creditor, for it is established that the creditor’s rule is to collect from the middle quality and he has no right at all to demand the finest. 
  
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  We compare it to a woman's marriage contract. The Gemara finally decides that there is one area where the cyclical change of price rules. That is regarding the collection of a k’suboh. The wife is entitled to collect from the poorest fields. If she wants to take a smaller parcel of a middle or finer quality field the husband can force her to accept it at the higher Nison prices. Tosafot adds:With this same explanation, the Gemara could have said that the circumstances where the cyclical change of price rule can apply are about a creditor, whom the Gemara is already discussing. He says: give me a smaller parcel of the finest. He would have to accept the smaller parcel of the finest at the higher Nison prices. However, since the Gemara started with saying that this cyclical change of price rule applies to damagers, and when the Gemara rejected that attempt it said that we were discussing a creditor. After examining whether this rule is relevant to the first two types of collectors, the Gemara is now content to mention a woman’s K’suboh which is the third type of collector.
  
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  Do not raise the dilemma in accordance with Rabbi Yishmael, as he says we appraise according to [that of] the injured [party]. The Gemara is quite certain that according to R’ Yishmo’ail determining the qualities of finest, middle or poorest cannot be calculated by world standards. Why is the Gemara so sure?Since R’ Yishmo’ail learns from a textual comparison using the words שדה שדה, one ‘שדה’ appears in the verse “the best of his fields… he shall use for payment” and the other ‘שדה’ from the verse “and he will destroy another’s field” which is clearly referring to the field of the victim. The designation of the finest is based only on the field of the victim because it is his field that the Torah is discussing in the verse “and he will destroy another’s (the victim’s) field”. However, according to R’ Akiva it is possible that his intention when he says the field of the person paying is to be used as a barometer for the finest he only comes to exclude the victim’s finest and not the finest according to world standards.
  
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  [Both] this [braita] and that [braita]. The Gemara quotes a Braita that says: if a person owned intermediate and poor quality fields, the victim of his damages and his creditor collect from the intermediate-quality. If he owes a k’suboh it is paid from the poorest- quality.In a second Braita with the same circumstances, a different formula is given. The victim of damages collects from the medium-quality. The creditor and the marriage contact are paid from the poorest-quality fields.Debtor has intermediate and poor-quality fields:<u>Braita A</u>Medium quality: <i>Damages</i> CreditorPoorest Quality: <i>K’suboh</i><u>Braita B</u>Medium quality: <i>Damages</i>Poorest quality: Creditor <i>K’suboh</i>The Gemara offers four ways of reconciling this contradiction. Our Tosafot will be focusing on the second way.1) Both Braitas hold that we determine finest, medium and poorest qualities according to the damager’s fields. Braita A is discussing a situation where at the time of the loan the debtor owned even finer fields. Since he owned finer fields, the debt at the outset was payable from the medium-quality fields. Even after the finer fields were sold, and his intermediate quality becomes his finest, the debt must be paid from what is now his finest because initially a lien was established on those fields. In Braita B, there never were any finer fields. The medium-quality fields are his best and the creditor is not entitled to collect from the debtor’s best. He must therefore collect from the poorest fields.2) In both Braita A and Braita B, the debtor did not have finer fields at the time of the loan which were subsequently sold. Both Braita A and Braita B hold that the quality of the field is measured by world standards. Braita A is speaking about where his intermediate- quality is equal to the world’s intermediate quality and he pays his creditor and damages from the medium-quality. Braita B is speaking about where his medium-quality is equal to the finest quality by world standards. The creditor is not entitled to the finest fields, so he must accept payment from the poorest. The damages are of course paid from the finest. It is this second answer that our Tosafot will be discussing.3) Both Braitas are speaking of where the debtor’s medium quality is equal to the world’s medium-quality. Braita A holds that payment is made according to world standards and therefore the creditor is paid with medium-quality fields even though they are the finest of the debtor. Braita B holds that payment is made according to the debtor’s fields. Since the field in question is the debtor’s best the creditor who is not entitled to the finest must collect from the poorest.4) Ulo says in Chapter Haneezokin that by Torah law the creditor can collect only from the poorest. The Rabonon were concerned that potential lenders would be discouraged by the fact that they could only collect from the poorest fields and instituted a rabbinic law allowing them to collect from the intermediate quality fields. Braita A subscribes to Ulo’s ruling while Braita B rejects it. Rashi holds that he rejects Ulo’s ruling altogether and holds that there is no rabbinic law that creditor’s may collect from the intermediate- quality fields. Tosafot disagrees with Rashi’s understanding and hold that in general he agrees with Ulo, it is only in limited circumstances that he disagrees with Ulo.This is our text of the Gemara’s second solution: Both Braita A and Braita B are speaking of where the owner did not have finer fields that were later sold. Braita B is speaking about when his intermediate quality is equal to the world’s finest. Since a creditor is not entitled to the finest, he can now be paid with the poorest. Braita A is speaking of when his medium quality is not equal to the world’s finest. Since they are not equal to the worlds finest they are classified as medium-quality and the creditor is entitled to be paid from the intermediate-quality.Although the Gemara introduced this solution with the explanation that in both Braitas the debtor did not have any finer fields that were sold, there is a major difference between the circumstances of Braita A as opposed to Braita B, as Tosafot will now explain.And that which the Gemara said that both Braita A and Braita B are speaking of when he did not have finer fields that had been sold, the Gemara does not mean to say that both Braitas are speaking of where he did not have any finer fields at all, for if that were so, in Braita B which is speaking of where his middle quality is equal to the world’s finest, why are they called middle-quality? They are his finest, since you are assuming that he never had any better fields and they are the finest by world standards. Why are they referred to as middle-quality?Rather, this is what the Gemara means, both Braita A and Braita B are speaking of where he did not have finer fields that were sold, what this means is: that they are not speaking of where he had finer qualities that were sold, but one Braita, Braita A, is speaking of when he never had any finer fields at all. His finest is equal to the world’s middle-quality and therefore the creditor is paid from his finest which is equal to the world’s middle-quality. And Braita B is speaking of when he had finer fields and still has them. His middle-quality is equal to the worlds finest and they cannot be collected by a creditor. He must collect from the poorest quality. They are referred to as middle-quality because he owns even finer fields and they are in fact, his middle quality.According to this explanation, we need not say that either of the Braitas is speaking of when a field was sold. In Braita A he never had any finer fields. In Braita B he had finer fields and still has them. Nothing was sold in either Braita.And both Braitas hold that the qualities of fields are determined by world standards. That is why in Braita A the debtor pays with what is middle-quality according to world standards, even though they are his own finest. In Braita B the debtor pays with his own poorest, since his own middle-quality is equal to the world’s finest. 
  
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  And if you wish, say [both] this [baraita] and that [braita concern cases where the borrower] did not have superior-quality [land] and sell it. This Tosafot is discussing the third way of reconciling the contradiction between the two Braitas. See previous Tosafot for an explanation of this solution. There is an alternative text for this third solution. Instead of reading that the debtor’s medium-quality is equal to the world’s medium- quality, that text reads that the debtor’s medium-quality is equal to the world’s finest quality. Tosafot rejects that text, as he will now explain.We do not have the text that in both Braitas the debtor’s middle-quality is equal to the world’s finest quality. For since in this third solution these Braitas are speaking of where the debtor had no finer fields,1<i class="footnote"> This assumption that the debtor has no finer fields follows the usual rule of the Gemara that we assume that circumstances remain the same unless we are informed that they have changed. In the previous solution the Gemara said that in either Braita the debtor did not have finer fields that were sold. We assume that this condition remains the same for the third solution since the Gemara did not inform us that the circumstances of the third solution are different from the circumstances of the second solution. Some raise the following question: Tosafot previously said that Braita B is speaking of a situation where the debtor had finer fields and still has them. If so, why can't we say that the Gemara in the third solution also means that both Braitas are speaking of where the debtor had finer fields and still has them? See אוצר מפרשי התלמוד who quotes גידולי תרומה who says that it is very awkward to say that this is what the Gemara means when it says that in both Braitas he did not have finer fields that were sold. Earlier when Tosafot said that this was the meaning of the Gemara, it was an acceptable explanation because one of the Braita was actually speaking of where he never had any finer fields. It is legitimate to say that the other Braita is also speaking of where he did not have a finer field that was sold, because he still has it. However where both Braitas would be speaking of where he actually owned a finer field and still owns it, it is awkward to describe that situation as he did not have a finer field that was sold.</i> why are the fields he has called medium-quality fields since according to this text they are the debtor’s finest and the world’s finest?And another reason to reject this text is, for if it were so, that his intermediate-quality is equal to the world’s finest and we were to assume that the debtor did have finer fields2<i class="footnote">See note 1. This assumption that there were finer fields that are not mentioned in the Braita is obviously a departure from the general rule mentioned in note 1. Tosafot is saying that even if we were to assume such a departure from the norm, the Braita would still not make any sense.</i> which is why the fields under discussion are referred to as intermediate-quality, how can we make sense of Braita A that says that the victim of damages and the creditor are paid from the intermediate-quality. This difficulty is compelling both according to the one who says qualities are determined according to the debtor’s properties, and according to the one who says that qualities are determined by world standards. According to the one who says qualities are determined by the debtor’s property, the victim of damages should collect from the finest and the creditor from the debtor’s intermediate- quality. According to the one who holds that qualities are determined by world standards, the victim of damages should collect from the damager’s medium-quality, which is equal to the world’s finest and the creditor should collect from the debtor’s poorest quality because he is not entitled to the finest by world standards.
  
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  What [would] a person typically bring out? The most inferior of his utensils. Ulo is proving that the creditor is paid with the poorest quality since the Torah says that “the man to whom you lend shall bring out the security to you”. That “man” the borrower, given the choice will bring out the least of his utensils. The Torah is giving that “man” the right to pay with that which he sees fit; obviously he will choose the poorest. Tosafot points out that there is another person involved in the process, the court emissary.Even though it is the court emissary who brings out the security to the lender, the court emissary only brought out to the lender that which the borrower gave him. The decision of what to give as security remained with the borrower, who would obviously choose the least valuable of his utensils.
  To bring out the most inferior of his utensils. The debtor’s right to bring out the least of his utensils is presented as proof that the creditor collects his debt from the poorest by Torah law. The supposition is that the least of the utensils is by definition not the finest. This contradicts what we have learned earlier.And if you ask: Even the least of utensils is “the finest” as the Gemara said earlier (Bava Kamma 7b), all movable items are the finest since they can be transported to where they are sought after.And we can answer: When one brings out utensils it is usual for him to bring out the least valuable and so too, when he brings1<i class="footnote">A debtor does not actually bring land. What Tosafot means is that he may offer some of his land as security for the debt. He will certainly offer the poorest of his land as the security.</i> land it is also usual that he brings the poorest. Since the Torah places the decision in the hands of the borrower, when he offers land he will offer the poorest which the lender must accept.It appears that the correct ruling is that qualities are designated according to the debtor’s property, for that is the opinion of R’ Nachmon in Ketubot 110a.2<i class="footnote">There is a dispute there between Rav Nachman and Rav Shaishes. The Gemara there says that the essence of the dispute is whether we follow world standards or the damager’s private standards, with Rav Nachman’s position being that we follow the individual debtor’s standards. Generally in this type of dispute we follow Rav Nachman.</i>As was pointed out at the end of Tosafot ה מר לית ליה תקנתא דעולא ' ד, in the fourth and final solution, according to both Braitas the designation of qualities is based on world standards. Tosafot felt the need to say that this is not the halachic ruling, rather we follow R’ Nachmon who holds that designation of qualities is based on the properties of the debtor.
  
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  [The other] sage is not of [the opinion that the ruling is in accordance with] the ordinance [cited] by Ulla. The Mishna in Haneezokin (48b) says that a creditor collects his debt from intermediate-quality fields. In our Gemara Ulo teaches us that by Torah law the creditor should collect only from the poorest quality fields. The Sages felt that this would have a negative impact on a borrower’s ability to obtain a loan. The potential lenders would not want to give a loan if their right to collect their debt was limited to the poorest quality. They therefore legislated that a creditor can collect from medium-quality fields.Why did they not allow a creditor to collect from the finest fields? The Gemara in Haneezokin (49b) answers that question. They felt that an unscrupulous individual would try to take advantage of an unfortunate person who was in need of cash. The lender would offer the unfortunate borrower a loan with the hope that he would not be able to pay the loan and thus the lender would take possession of the finest fields of the borrower. However, since a creditor could collect from the medium- quality, the honest lender would not be discouraged from offering a loan to a person in need of one.Our Gemara says that the Braita B that says that when a debtor has only intermediate and poor-quality fields the creditor collects from the poorest quality does not hold of Ulo’s rule. Rashi says that he does not hold like the Mishna in Haneezokin and in all cases a creditor collects only from the poorest, even when the debtor owns all three qualities of fields. Tosafot disagrees with Rashi as he will now explain.The Gemara’s statement that this Braita does not hold of Ulo’s rule was said specifically where the debtor has no finer fields than the medium- quality; in that case these medium-quality fields that he does have are the debtor’s finest.This can be seen from the Braita’s mentioning that the debtor owned only medium and poorest. It is in this case that the Braita rules the creditor collects from the poorest. This implies that if the debtor owned finer quality fields the creditor does collect from the medium-quality. Tosafot understands that the Braita specifically set up this case of the debtor not owning any finer quality as one where the creditor must take the poorest quality. Where the debtor does own finer quality the creditor collects from the medium-quality fields.And this Braita holds that since the debtor only has medium and poorest quality, the reason mentioned in Haneezokin that a creditor does not collect from the finest is relevant to the situation of our Braita. The Gemara there says: For what reason does a creditor not collect from the finest? So that he should not gaze upon his neighbor’s beautiful field or beautiful apartment and say: I will hasten and lend him money so that I will collect it, the beautiful field or apartment as payment of my loan. This concern is mentioned there as the reason the creditor does not collect from the finest. Braita B holds that this concern is relevant even where the borrower’s finest field is not the finest by world standards. The creditor cannot collect from the borrower’s finest and must therefore collect only from the borrower’s poorest. Braita A holds that this concern is relevant only where the borrower’s finest are finest by world standards as well, not when they happen to be this borrower’s finest but not the finest by world standards. Since that concern does not apply here, the creditor can collect from the intermediate-quality fields; even though they are the creditor’s finest. According to this fourth solution, both Braitas obviously hold that the designation of qualities is measured by world standards.
  
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  All [the buyers] replace the [land’s prior] owner. The purchasers of the fields assume the responsibilities of the original owner. The purchaser of the finest field will pay the victim of damages. The purchaser of the medium-quality will pay the creditor and the purchaser of the poorest quality will pay the k’suboh. It is clear that the victim of damages will definitely be able to collect from a field that the damager sold. Tosafot examines this ruling in view of the general rules of collecting from property that was sold.And if you ask: Damages are equivalent to a loan that is not documented, since the obligation is not written in a document and a loan that is not documented cannot be collected from property that was sold1<i class="footnote">See Bava Batra 175a. The Mishna there says that one can collect a documented loan from property that the debtor sold but not a undocumented loan, even though there are witnesses that the loan transpired.</i> by the borrower? Why is our Gemara certain that the victim of damages can collect from property that the damager sold?And we can answer: That when they stood at a Din Torah and the obligation to pay was established by the court, it is equivalent to a documented loan and one is paid from property that the borrower sold, as the Gemara says in HaGozail basro (Bava Kamma 112)2<i class="footnote">This is a printer’s error. The Gemara is actually in Hagozail Aitzim 105a.</i> and in some other places.Alternatively, damages are a loan that is written in the Torah, which is equivalent to being written in a document and the purchasers of the property are liable to pay. (See Kidushin 13b).3<i class="footnote">See Rashba who based on a Gemara in Bava Metzia suggests that damages are usually public knowledge and are therefore equivalent to a documented loan. See Shulchon Oruch C. M. 119, Sifsay Kohain 7, who discusses this opinion.</i>
  
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  [If he] does not have [they] collect from the previous [buyer]. When a debtor sells some of his property, the rule is that we do not collect from property that has been sold when there is unsold property available from which to collect the debt, even if that unsold property is of the poorest quality. Thus the law that the victim of damages collects from the finest and the creditor from the medium quality is circumvented by the sale of those properties to the first and second purchasers. Subsequently, if and when the remaining property is collected to settle a debt, even if that happens after the sale of such property to a third purchaser, the order to be followed when settling the debts is not based on the qualities but on the dates of the sale of the properties. The last sold is the first to be collected and the first sold is the last to be collected.We must also take into account the dates of the obligations. The earliest obligation is collected first and the last obligation is collected last, even though this may be to the detriment of the earliest obligation as Tosafot will now explain. Rivo says: That if they, the victim of damages, the creditor and the woman collecting her k’suboh, all come at once to collect what is owed to them, whoever’s document precedes the others collects from the last purchaser first even if this will be to his disadvantage.If the victim of damages was the earliest, he was damaged on the earliest date; he collects from the last purchaser even if that property happens to be the poorest. The rule that one collects from the last purchaser overrides the victim’s right to collect from the finest.And if the creditor comes after the victim of damages, for example, the date of his loan precedes the date of the k’suboh; he too, collects from the last purchaser. And if he, the last purchaser, does not have any more of the land that he purchased from the debtor, he, the creditor, collects from the preceding purchaser, even if the land the second purchaser has is from the finest of the debtor’s property.Ordinarily the creditor collects from the medium-quality. In this situation we are following the order that the various debts came into existence. That order takes precedence over the rule that the creditor receives payment from the intermediate-quality since that rule has been circumvented by the debtor selling the medium-quality before selling the poorest property.And the woman, who is collecting her k’suboh and happens to be the latest obligation of the three, collects from the very first purchaser even if that property is the finest of the finest.1<i class="footnote">See Shulchon Oruch Choshen Mishpot 119, 4, who accepts Rivo’s ruling. He also cites Rosh’s ruling about striking a private deal between the damages victim and the purchaser of the ‘finest’.</i>Time lineObligations:Ador 1- damagesAdor 2- debtAdor 3- k’suboh – marriage contract						Sale of property:						Ador 4- finest of the finest						Ador 5- finest						Ador 6- inferiorThe damages victim of Ador 1 is the first obligation. He is paid from the field sold last on Ador 6, even though it is inferior-quality.The creditor whose loan is dated Ador 2 is paid from the balance of the inferior if there is any left and if there is nothing left he is paid from the field sold on Ador 5, even though it is the finest.The marriage contract which was dated Ador 3 is paid from the finest if there is any remaining after satisfying the debt. If not, she is paid from the first field sold on Ador 4, even though it is the finest of the finest.See Rosh who adds that the victim of damages may make a private deal with the first purchaser who has the finest property. The first purchaser may then say I give up my right to compel the victim of damages to collect from the last purchaser and will pay him from the finest properties that I purchased from the debtor. This is not considered a violation of the rights of the debtor and the k’suboh. The same may be true of the creditor who can strike a deal with the holder of the medium properties.
  
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  Where it is possible to say [that the sale to] one of them preceded [the other sales]. It appears that Rashi understood that the words דאיכא למימר mean that an argument can be made that since one document was written and given before the other, we should consider the first purchaser as the first and his property should be collected last and we should not treat all of the purchasers equally even though all three transactions took place on one day. The Gemara’s conclusion is that since they are all written in one day the effective date of each of these documents is the end of that day. It doesn't really matter that one of them was written earlier than the others. They are in reality all effective at the same point in time, the end of the day on which they were written.Tosafot seems to translate the words דאיכא למימר as ‘it can be said’. This implies that there is an element of doubt. It can be said that one was given before the other and it can be said that one was not given before the other. Tosafot finds this interpretation problematic. If we are speaking in terms of an actual time that the seller handed the documents to the buyers, then one definitely was given before the other. How can we entertain the possibility that one was not given before the other? (It is highly unlikely that the seller handed two documents to two people at precisely the exact same moment.) Tosafot explains that converse of “it can be said that one preceded the other” is not that “it can be said that the two documents were given simultaneously”, but rather, “that we are sure that one preceded the other”. This happens in Y’rusholayim where it was the custom to write not only the date but also the time of day that the document was written.The reason that there is a doubt about which transaction occurred first in places other than Y’rusholayim is because we only write the hour of the day in Y’rusholayim. In Y’rusholayim there is no doubt. Since we write the hour of the transaction in the document we are sure that one document was given before the other.
  It needs [to ask about a situation where] he sold to one [purchaser all of the fields] in one day. When the Gemara says: now if he sold three qualities to three people, they all take the place of the owner – and must pay each of the creditors according to the qualities that they purchased, i.e. the damages are paid from the finest, the creditor from the middle-quality and the k’suboh from the inferior fields, then certainly when there is only one purchaser he must pay each of the creditors with the quality that they deserve, it seems that there is no conceivable reason that would dictate that when there is a single purchaser he might be able to avoid paying the damages victim from his due – the finest. Tosafot holds that ultimately at the conclusion of the Gemara, this is not necessarily true.In a few moments the Gemara introduces a new dynamic into the claims and counter-claims between the claimants and the purchaser of the debtor’s property. When the purchaser who is in possession of all three qualities purchased the finest quality last, it would seem that all the claimants can collect from the finest since that was the last one sold by the debtor. The Gemara says that the purchaser can argue as follows: If each of you is willing to accept the quality that is due to you, fine. If not, I will return the document of the poorest quality to the original owner and you will all have to collect from the poorest quality. With this claim the purchaser can avoid paying all of the debts with the finest property. Subsequently, the Gemara argues that he should not even pay the damages victim with the finest because he can threaten to return the inferior quality to the debtor/seller and compel him to accept the inferior quality.Tosafot will now argue that when the sole purchaser purchased all of the fields on one day he too should also be able to avoid paying the damages victim with the finest quality, because he can threaten that he will return the document of sale of the inferior fields to the owner and they will be forced to accept the inferior quality. Thus he should be able to work out a compromise with the damages victim and pay him with middle-quality. It seems from the Gemara’s argument that precisely because one purchaser bought all of the fields, he can make this threat and is in a stronger position than if the three qualities were purchased by three individuals.This contradicts the Gemara’s present position that when one person buys all of the fields, he must certainly pay according to qualities and not according to the order of the sales.At this point the Gemara did not think of the explanation that a buyer may threaten the victim of damages who is seeking to be paid from the finest as follows: if you will be silent and accept the medium-quality that I will give you, fine, but if you insist on the finest, I will return the document of the sale of the poorest quality to the original owner and you will be forced to accept the poorest quality as payment of your damages. Eventually the Gemara presents this argument as a viable claim against the victim of damages who is seeking to collect from the finest property. If the Gemara had been aware of this argument, the Gemara could not have said that when all three fields are sold to one buyer, that buyer must certainly pay each of the claimants with the quality that he is due, for he could claim “if you will be silent etc.”One might argue: Perhaps this claim is valid only when there are three separate documents for each of the three qualities, but if there is only one document for all three, the buyer cannot threaten to return the document of the poorest quality since they are all on one document?1<i class="footnote">This is the underlying question that Tosafot addresses in his next statement. By Tosafot alluding to a problem when all three qualities of land were included in one document, we see that Tosafot has a different approach to the dynamics of the claim “if you will be silent etc.” Rashi and many Rishonim hold that this is a legal maneuver. The purchaser of the property can and will sell the poorest quality back to the seller/debtor. All the claims against him will be settled from the property in his possession which is the poorest. This follows the rule that one cannot collect a debt from sold properties when the debtor has unsold properties with which to pay the debt. By selling the poorest property back to the debtor, the purchaser can force the claimants to collect the debt from the poorest quality. All this is perfectly legal. According to this approach, even if all three properties were sold in one document the purchaser can re-sell the poorest to the debtor. The fact that they were originally sold in one document makes absolutely no difference. Since Tosafot does seem to have a problem with all three properties in one document, it is evident that Tosafot had a different view of the claim “if you will be silent”. It appears that this is not a legal sale of the poorest quality back to the seller/debtor. Since the Gemara does not use the term “I will sell the poorest to the debtor”, rather, “I will return the document to the debtor” Tosafot understands that we are not discussing a legal sale. It is a threat to suppress the document of the sale of the poorest so that it will appear that there never was a sale. If we work with this understanding we can see that there is a problem when all three qualities appear in one document. You cannot suppress only the portion of the document that deals with the poorest. Why would one use the threat of suppressing the document if he could simply sell the poorest quality back to the debtor/seller? Some say that selling the poorest back to the seller/debtor requires his cooperation. He must be willing to buy back the poorest quality. The Rosh assumes that he will be willing to do this in order to help the buyer. Tosafot holds that this assumption is not necessarily so. The seller/debtor may have reasons that it is not to his advantage to buy back the poorest quality. Tosafot therefore assumes that we are discussing a maneuver that does not require the cooperation of the seller/debtor which is the suppression of the document.</i>Tosafot explains: For even when all three qualities were written in one document, the buyer can suppress that document and return the poorest quality to the seller as if he had never purchased it at all.2<i class="footnote">There are two major problems that the commentators ask about Tosafot’ explanation that the purchaser could suppress the document stating that all of Reuven’s property was sold to Shimon:A) If he suppresses the document it will appear as if there was no sale at all and all of the debts will be paid according to the order of qualities. What does Shimon gain by suppressing the documentation of the sale? How can he use this threat to force the damages victim to accept the middle quality? If he follows through on his threat, the damages victim will collect his ‘finest’ from Reuven?B) In conclusion the Gemara says that the reason the threat of returning the inferior quality is not viable is because the seller/debtor is no longer alive. According to Rashi’s explanation this makes perfect sense. Selling the inferior qualities to his heirs will not cause that the debtors must collect the inferior quality from the inheritors of the seller/debtor’s estate. When the property is sold to the debtor/seller he must pay from that property even though he re-purchased it, because he must pay with any property that he owns, whether he owned it at the time of the debt or it came into his possession at some later time, but the property that they purchase after their father’s death is not subject to collection for their father’s debts. For this reason, once Reuven dies the threat of returning the inferior quality is no longer effective. However, according to Tosafot understanding that we are discussing suppressing the document and creating the appearance that the inferior property was never sold, that can be done even after Reuven’s death. If we suppress the document of the sale, it will appear that the inferior lands were never sold and Reuven’s heirs inherited that property and they are subject to collection by Reuven’s creditors.We find that the Gilyon in שיטה מקובצת answers the first question as follows: When Shimon suppresses the document that includes all qualities, he will re-write a new document stating that Reuven sold Shimon the finest and middle-qualities. In this way he protects the finest and middle-qualities from collection by retaining ownership of them and leaves the inferior quality in the possession of Reuven. The inferior qualities will be collected from Reuven because he has unsold property, which is always collected before the sold property that is in Shimon’s possession. This may also provide an answer to the second question. Since Reuven is no longer alive, a new document will have to be written between Shimon and Reuven’s heirs. This of course would mean that it would have the appearance that at the time of Reuven’s death these properties were still in his possession and thus subject to collection by his creditors. At this point nobody knows how many outstanding debts Reuven has and Shimon would not want the land he purchased while Reuven was still alive to be subject to such debts when in reality he had already purchased them and legally they are not subject to collection for those debts. Therefore, suppressing the original document and re-writing a new one with the heirs of Reuven is not a realistic threat.</i>
  
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  If you were silent, etc., but if not, I will return the bill [of sale] of the inferior quality [land] to its [previous] owner. The circumstances we are presently dealing with in the Gemara are where the purchaser bought the finest quality of the debtor/seller last. According to the general rule governing the collection from a debtor who sold his property, all claimants can collect from the very last field that was sold by the seller/debtor. The Braita is telling us that the general rule can be overridden by the purchaser who can threaten to return the document of the poorest quality back to the debtor/seller. If he should do that they would all be forced to collect from the poorest. He agrees not to take advantage of that option if they will each be satisfied with their original right. The victim of damages will collect from the finest, the creditor from the medium quality and the k’suboh from the poorest.This is a bit of an over-simplification. Actually the three claimants are not one group of collectors that must submit to collective bargaining. Each one has his own claim and the debtor has to deal with each one of them individually. Tosafot will now explain how each of the claimants is dealt with.Since this is merely a threat why does the k’suboh have to surrender her right to collect the finest because of the threat? According to the general rule that one collects from the last property sold by the debtor she has been upgraded from the poorest to the finest. Why should she submit to accepting the poorest in face of the purchaser’s threat? She should say “when you give back the document”; I will accept the poorest from the seller/debtor. There may be a reason that the purchaser really does not want to return the document to the seller/debtor. The woman collecting her k’suboh should have the right to force him to make that move. After all, he may back down.Even though a woman collecting her k’suboh would in any case receive the poorest, and the purchaser is not offering her any upgrade to entice her to accept his offer, even so, she cannot say “when you will return the document I will accept the poorest” in order to force him to improve her position, because he is not curtailing her rights. Ultimately, the Rabonon said that she could collect her k’suboh from the poorest and he is not offering her anything less than that. As long as he is not infringing on her original right, she must accept his offer. It is precisely for this reason that the purchaser cannot force the creditor to accept a downgrade.However, as far as a creditor is concerned it cannot be said that he must accept the poorest instead of the medium-quality because of the claim of “if you will be silent etc.”, since the purchaser is curtailing his rights to collect from the medium-quality, the creditor can say to the purchaser “when you will return the document to the seller/debtor I will accept the poorest from him”. For now you are also only offering to give me from the poorest which is a downgrade. Why should I settle? Let us see if you will really return the document to the seller/debtor.We see that when the purchaser attempts to downgrade the position of the claimant without offering anything in return, the claimant can argue: when you will return the document to the debtor/seller I will accept the poorest from him. The Gemara will soon ask that the purchaser should be able to downgrade the victim of damages with the threat of “if you will be silent and accept medium quality, fine. If not I will return the document of the poorest to the debtor/seller and you will be forced to collect from the poorest. The Gemara does not ask that the purchaser should attempt to downgrade the creditor as well with the same threat.It is for this reason, that the purchaser cannot downgrade the creditor from his right to collect from the medium-quality without offering him something in return, that the Gemara soon asks that the purchaser should be able to downgrade the victim of damages, only from the case of damages where the purchaser is willing to at least give him medium-quality, so the victim has some reason to compromise and accept the medium instead of being forced to accept the poorest. The Gemara does not ask about the creditor as Rashi explained that he should be compelled to accept the poorest. Since he is not being offered any more than the poorest, he has no reason to compromise and accept the offer and he can say “when you return the document of the poorest quality to the seller/debtor, I will accept the poorest from him”.
  
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  With [a case of] orphans, who are not subject to [an obligation to] repay. Tosafot holds that the orphans that the Gemara is discussing are adults.1<i class="footnote">Rashba is of the opinion that the orphans the Gemara is speaking about are minors. They are never obligated to pay their father’s debts.</i> We know that adult orphans do have to pay their father’s debts from the property they inherit from him. Why does the Gemara refer to them as “orphans who are not responsible to pay”?Even though the purchaser is returning land to the orphans and a creditor can collect from land that the orphans inherited from their father, the case of our Gemara is comparable to orphans who purchased land after their father’s death. Even though the land once belonged to their father a creditor cannot collect from those lands since this is not land that they inherited from their father. Only land that they inherited from their father is mortgaged for their father’s debts, not land that they purchased after his death.This distinction is true despite what we have learned in perek Yesh Nochalin (Bava Batra 125a).And even though, when they collected land for a debt owed to their father we say in perek Yesh Nochalin (B”B 125a) that a creditor can collect that land from them. That is because the collected property is part of their father’s estate. They inherited the estate from him and it is mortgaged to his debts. When orphans buy property after their father’s death, that property has nothing to do with their father’s estate and cannot be taken from them to satisfy his debts.
  
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  [If] he [so] desires, he collects from this [one, and if] he [so] desires, he collects from that [one]. Reuven sold all his fields to Shimon. Shimon sold one of those fields to Levi. A creditor of Reuven wants to collect the money that Reuven owes him. Reuven has no other assets, all the sold fields are mortgaged to the debt. Rovo says that the creditor can collect his debt from Shimon or Levi. We must keep in mind that when Levi purchased the field from Shimon, he left Shimon with sufficient property to cover the debt to the creditor. Why then should the creditor be allowed to collect from Levi?And even though we say that one may not collect from sold properties where there are unsold properties available, even if the unsold property is of the poorest quality. We should view the property that Levi bought as sold property and the property remaining with Shimon as unsold and Shimon should pay the creditor from the unsold property.Here, in this case, it is different. For all the properties are actually sold. If Reuven had unsold property, he would have to pay with that property. That property is viewed as unsold because the person who owes the money to the creditor owns those properties. A buyer may claim “I do not have to pay the creditor because I left the debtor with sufficient property to pay his debt”. This is true when a buyer leaves sufficient property in the hands of the person who actually owes the money to the creditor. In our case, Reuven has no more property. The debt must be satisfied from sold property. Levi cannot say “I left sufficient property to cover the debt with the person who owes the creditor”. Shimon does not owe the creditor any money at all. They both happen to be in possession of property that is mortgaged to the debt. Shimon is not a debtor, Reuven is the debtor. Those properties are both sold properties and are equally mortgaged to the debt. The creditor may therefore collect from whichever property he desires.
  
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  But [if] he purchased superior-quality and inferior-quality [land]. The Gemara says that if Levi purchased the finest or the poorest quality from Shimon he can say to the creditor: you must collect from Shimon. I went to the trouble of purchasing the qualities that are usually not suitable for a creditor and therefore you cannot collect from me. Thus the Gemara has now introduced a new claim that the second purchaser can use to protect the property that he bought from the first purchaser, from being collected by the creditor. We already know that Levi can claim; I left property with Shimon from which you could collect. (In the next Tosafot we will clarify the soundness of this claim.)There are now two possible claims that Levi; the second purchaser may use to protect his interests:A) I left sufficient property with Shimon from which you could collect your debt.B) I went to the trouble of purchasing the finest or the poorest, which are usually not suitable for a creditor.We must examine the circumstances under which claim A) I left property with Shimon from which you could collect, is not effective and claim B) is needed and why.There are three possible scenarios where Levi purchased the finest or the inferior qualities and he is trying to prevent the creditor from collecting his property:a) He purchased the finest and left Shimon with the inferior quality.b) He purchased the poorest and left Shimon with the finest.c) He purchased the finest or the poorest and left Shimon with middle quality.In the very next case the Gemara discusses Levi, who purchased some of the middle-quality fields and left Shimon with enough to cover the debt. The Gemara concludes that Levi can argue to the creditor: I especially left Shimon with enough middle-quality to cover the debt and therefore you cannot collect from the middle-quality that I purchased. (In the next Tosafot the exact logic of this claim will be explained in depth.)It would seem that in scenario c) the same defense should apply. If Levi purchased the finest or poorest and left Shimon with the middle-quality he should be able to claim: I left you sufficient middle-quality from which you can collect your debt and thus you cannot collect from the finest or poorest that I purchased. Why does the Gemara introduce a new claim: I specifically avoided the quality that you would collect? The claim I left you sufficient land from which you could collect your debt should suffice. It seems that the Gemara must be discussing scenario a) or b), where no middle quality was left with Shimon. Tosafot explains that this is not necessarily so.It appears that the Gemara may be aptly speaking of even1<i class="footnote">The use of the term “even when Levi left medium-quality with Shimon”, implies that when he did not leave medium quality with Shimon the claim that I went to the trouble of purchasing land that is usually unsuitable for a creditor is needed and effective. This presents a difficulty, for if Levi purchased the finest and left Shimon with the poorest, Tosafot says later that claim B) is not needed in such a situation. If he purchased the poorest and left Shimon with the finest, his claim that he purchased something which is unsuitable for a creditor is untrue. When a debtor only has the finest and poorest qualities, the creditor is entitled to collect from the poorest. How can Levi say I avoided taking land that you would collect? He did in fact take the land that the creditor was to collect. See Otzar HaTosafot note 1401.</i> when Levi left medium-quality that a creditor is entitled to collect from Shimon. It would seem that the new claim B) “I was careful to buy the finest or poorest which is not usually collected by a creditor” is not necessary. The claim A) “I left Shimon with property that you could collect” should be sufficient.Even so, claim B) that I went through the trouble of purchasing land that is not suitable for you, is needed. For Levi cannot say to the creditor claim A) I left you sufficient land from which you could collect your debt, as the Gemara soon says about Levi who left Shimon with medium quality, that is equal in quality to the land that Levi purchased. There, where Levi and Shimon now have equal parcels of medium quality land, claim A) is valid. Had the property not been purchased by Levi and remained in Shimon’s possession, Shimon could have dictated which medium-quality parcel the creditor collects. (See next Tosafot for the explanation of this claim). Levi, as a purchaser from Shimon, has every right that Shimon had, so Levi can dictate that the creditor take the medium parcel that he left with Shimon. This is true when Shimon and Levi each have equal parcels of medium quality land. However, when Levi purchased only the poorest and Shimon is left with only medium quality, the situation is radically altered, because Levi has something that Shimon does not have and the creditor may have had the right to demand the parcel that Levi purchased.For perhaps the creditor desires a larger portion of the poorest land, more than a smaller portion of the medium, and against Shimon’s will the creditor could have demanded a bit more of the poorest as we said earlier (7b). When considering the proposal that when a creditor wants to be paid with the poorest quality, the debtor could demand that the land be calculated at the higher Nison prices. Rav Acha the son of Rav Eeka, rejecting that proposal said, if so, that you want to force the creditor to accept the poorest land at the later Nison prices; you are locking the door in the face of borrowers. They will find it difficult to obtain a loan, because you are discouraging the potential lender by limiting the manner in which he can collect his debt. The creditor who wants the poorer property that Levi purchased could have demanded it and claim A) would not have been a proper defense, since the two parcels of land are not equal. Claim B) that I went to the trouble of purchasing land that is not suitable for a creditor is a valid defense for Levi. Even though in this particular situation his claim is not really accurate, because the creditor does in fact want the poorer land that Levi purchased, but since in most cases Levi’s choice of purchasing the poorest is a reasonable choice, that usually protects the creditor’s interests since most creditors do prefer to be paid with medium quality he need not give up the poorest land to the creditor.Tosafot has shown us that the claim “I went to the trouble of purchasing land that is usually not suitable for a creditor” is needed when the second purchaser, Levi, purchased the poorest and left Shimon with the medium- quality that the creditor usually collects. What about a reverse situation? When Levi purchased the finest property and left medium and/or poor- quality with Shimon, is claim B) needed? Tosafot holds it is not needed.And claim B) that I went to the trouble of purchasing property that is not suitable for you is needed only when Levi bought the poorest land which the creditor could demand, but if Levi purchased the finest land which the creditor could not demand and left Shimon with the poorest and medium-quality, this (claim B) is not needed. The creditor would like to collect the finest land that Levi purchased, but he really has no claim to that quality.For just as Shimon could have diverted the creditor to the medium and poor-quality, when he demands the finest, so too, Levi who is in possession of the finest land can divert the creditor to the poorest quality. Levi has every right that Shimon would have had if the creditor came to collect from Shimon. As we have just learned in the Gemara, what has the first purchaser, Shimon, sold to the second purchaser, Levi, any beneficial claim that is in his power to claim. So, just as Shimon could divert the creditor from the finest, so too, Levi can also divert the creditor from the finest. Claim B) is not needed in this case.
  
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  He could say to [the creditor]: I left a place for you. Reuven the debtor sold his fields to Shimon, the first purchaser. Shimon sold some of the medium quality fields to Levi, the second purchaser. When Reuven’s creditor wants to collect Levi’s fields, Levi can protest. The Gemara says that he can argue; I left you a place (property) with Shimon, the medium-quality field that I did not purchase, from which you can collect you debt. See ד"ה רצה מזה גובה ומזה גובה תוס' for a better understanding of the concepts that will be discussed in this Tosafot.This phrase, I left you a place from which you could collect your debt, is not precise. For it is only possible to use this term, when referring to property which was left with an original owner and not when referring to property left with the first purchaser. As we have seen in ד"ה רצה מזה גובה ומזה גובה תוס' the obligation to pay a debt is solely upon the debtor. When one purchases property from the debtor and leaves him with any kind of property even the poorest, one can say I left you a place from which to collect your debt. However, when Levi purchases from Shimon, a first buyer who does not owe anything to the creditor, Levi cannot say to the creditor I left you a place from which you could collect your debt because Shimon is not any more liable to pay the debt than Levi. Shimon and Levi are equally not liable to pay the debt. It is only because they happen to be in possession of land that was mortgaged for the debt that they have to pay. In this they are equal. Neither of them has a greater liability than the other. Levi cannot divert the creditor to Shimon based on Shimon’s greater liability because it is simply not true. If so, why can Levi divert the creditor to Shimon? The primary reason that Levi can force the creditor to collect from Shimon is only because of the reason mentioned earlier in the Gemara. What did the first purchaser sell to the second purchaser? He sold any beneficial claim that is in his power to claim. And he, Shimon, could have diverted the creditor to some other medium quality land. So too, Levi can divert the creditor to that very same land which is still in Shimon’s possession.However, if he did not leave Shimon with medium quality equal to what he purchased, he cannot divert the creditor to the poorest that remained with Shimon. For the first purchaser, Shimon could also not have diverted the creditor to the poorest. It is the creditor’s right to collect from the medium-quality. So too, Levi cannot force the creditor to collect from the poorest.For if we were to consider that the first purchaser, Shimon, may have claimed if you are silent and agree to accept the poorest, fine. If not I will return the document of the poorest land to the seller/debtor and you will have to collect the poorest from him. The creditor can say; go and return the document to the debtor/seller. Since he is being offered less than his minimal right, he can force the hand of the first purchaser and say; give it back. The purchaser may have reasons why he does not really want to give back the document to the seller/debtor.
  
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  The halakha is that Reuven [can] go and litigate with [his creditor]. Reuven sells a field to Shimon with a guarantee, which means that if the field is taken away from Shimon, either because Reuven did not own the field legally, or because it was mortgaged for Reuven’s debts, Reuven will repay Shimon for the loss of the field. If Reuven’s creditor attempts to collect the field from Shimon, Reuven may participate in the court proceedings as a defendant, even though he presently does not own the land. Since he will eventually have to repay Shimon if the land is taken away from him, Reuven is considered a principal. It seems from this ruling that there are claims that Reuven might claim that Shimon cannot or will not claim. Tosafot finds this very problematic. In view of the principal “we argue for the defendant” which means that the court considers every conceivable claim that the defendant can claim, Tosafot wants to know exactly what will be gained by allowing Reuven to participate in the case.There are two areas where there might be a difference if Reuven is allowed to participate as a principal:A) Claims and counter-claims.B) Permissible evidence by the testimony of witnesses.Tosafot will demonstrate that in both of these areas there is no difference whether Reuven is permitted to participate as a principal or not.First, as far as claims and counter-claims are concerned:And if you ask: what difference is there if we allow Reuven to participate in the court case as a principal. Anything that Reuven may have claimed we, the court, will claim for Shimon the purchaser’s benefit, for we will make any claim for the benefit of a purchaser, and also for the benefit of orphans who are very often unaware of the history of the property in question. The court steps in and acts in their behalf and presents any argument that the seller could have possibly claimed to protect the property from the creditor. For example, the court will claim that the loan in the document may have been paid, or perhaps the document has been forged and we require witnesses to verify the signatures on the document. For if we would not take these precautions to protect a buyer of property or orphans, you have not allowed a problem-free existence for any people. Honest individuals who are not particularly well versed in legal tactics will constantly be harassed by unscrupulous people trying to take advantage of them. The court must act as a defense lawyer for those who are incapable of defending themselves and challenge all claims by the plaintiffs even when the defendant does not challenge them himself, to assure that justice is served.Tosafot offers additional proof that the courts challenge the plaintiffs and exhaust every avenue of defense for the defendants.And in perek Get Poshut (Bava Batra 174b) it is also evident that the court claims that the documentation of a plaintiff is false and forces him to verify that the document is in fact authentic. The Gemara discusses a person who on his deathbed said: there are one hundred zuz in my possession that belongs to Ploni. If he then said: give them to him, we give them to him. If he did not say: give them to him we do not give them to him. And the Gemara there sets up the circumstance of this case, where Ploni is holding a document that confirms that one hundred zuz is owed to him. Despite the fact that Ploni is holding a document, if he said: give the money to him, he has validated the document. If he did not say: give the money to him, he has not validated the document and we do not give Ploni the money. This ruling that unless the document is validated we do not pay the creditor who is in possession of a document, implies that we claim for the benefit of orphans that the document presented against them is forged. Otherwise, there would be no need to validate the document.In the first perek of Bava Metzia (14a ד"ה דינא) I have discussed this at length.Tosafot has shown that whenever a defendant is in a position where he is not likely to know how to defend himself properly, the court steps in and claims any possible claim that he himself may have claimed had he been aware of his rights. If so, why in our Gemara do we say that Reuven can participate in the court proceedings as a principal, what difference does it make? The court will argue any claim that Reuven may have argued.Second, Tosafot will now show that even as far as permissible witnesses are concerned, there is no difference whether we consider Reuven a principal or not:So too, one should not say that there will be a difference whether Reuven is a principal or not when the witnesses of the creditor are relatives of Reuven and are therefore disqualified if Reuven is a principal, and they are not related to Shimon, so the creditor can use them to testify against Shimon. This scenario is not a proper solution to our question, for they cannot testify against Shimon in any case, because if the field is taken away from Shimon, he will then go after Reuven who is their relative. Ultimately their testimony affects their relative Reuven, and it is therefore not acceptable as Tosafot will soon demonstrate.And so too, if Shimon has witnesses who will testify in his behalf and they are his relatives, they are disqualified from testifying even for Reuven, because there is a benefit for Shimon from their testimony that the property remains in his possession.Tosafot has presented his opinion that if Reuven or Shimon will in any way benefit from testimony of witnesses the witnesses may not be related to either Reuven or Shimon. Whether Reuven is a principal or not has no bearing on this matter. Tosafot will now prove his point.As is evident in the end of the first Perek of Makos (7a) in regard to the story of Ee’lo’o and Tuvyoh who were relatives of the guarantor, the Gemara there disqualifies them from testifying even for the proceedings between the debtor and the creditor, because the creditor will go to the guarantor to be paid if the borrower does not have the ability to pay. We see that even if the guarantor is not a principal at the court proceeding, his relatives cannot testify because ultimately he will be affected by their testimony. If so, that we make all claims for the benefit of the defendant and any witnesses that are related to Reuven cannot testify even if Reuven is not a principal, what difference is there if Reuven is allowed to participate in the court case as a principal or not?We can answer: That there would be a difference as far as the rule of “the last proof” is concerned. For example: when asked if he could defend himself against the claims that were made against him, Shimon said I have no witnesses and I have no proof and after some time he found proof or witnesses. Shimon can not present them to testify in his behalf, since he already said that he has no witnesses or proof (Sanhedrin 31a). However, if Reuven is a principal, Reuven who never said I do not have witnesses can bring them to testify in his behalf.Alternatively, there would be a difference if Reuven is considered a principal if for example Reuven claims I want to go to the Great Sanhedrin to try my case, which he has the right to do, and Shimon could not make the effort to do so as Reuven can. If we consider Reuven a principal he can demand a trial at the Great Sanhedrin. If we do not consider him a principal and Shimon is not in a position to make such a demand, the trial must take place in the local court.See Tosafot Bava Metzia 14a and Tosafot Ketubot 92b for other answers to Tosafot question.
  
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  And claimants come forth about [the ownership of the land]. We are discussing Reuven who sold a field to Shimon without accountability, which means that if the field is taken from Shimon, Reuven will not have to return the money. The Gemara relates that there were עסיקין about the field and Shimon wants to annul the sale. What exactly are עסיקין? The word lends itself to two meanings.A) Legal challenges to Reuven’s ownership, either because Reuven himself did not have legal title to the property or because the property was mortgaged for Reuven’s debts.B) People who want to steal the field illegally, by forcing the owner of the property to give up his rights to the field.Tosafot says that in our Gemara it specifically means only one (A) of the two.The meaning of עסיקין is challengers who argue that the field does not belong to Reuven at all. When Shimon hears that Reuven’s ownership is in doubt he wants to back out. But one should not say that the meaning of עסיקין is criminals who want to steal the field from Shimon illegally, for if that were so, even if the field was sold with accountability, when the buyer took possession why can he annul the sale as the Gemara will soon say that he can? Let the seller tell him it is your misfortune that caused the loss. The seller is only accountable for problems that come about because of his ownership. For example if Reuven sold a field that he did not own that is obviously Reuven’s fault. Or if the field is mortgaged for Reuven’s debts, he is responsible to pay Shimon if the field is taken away from him. However, if the field is stolen from Shimon or a flood destroys it, Reuven cannot be held accountable for that, since the problem has nothing to do with him. Hence עסיקין in our Gemara must mean contestant who argue that Reuven never owned the field and not criminals who want to steal the field.
  Once he has taken possession [of the land], he cannot retract [his agreement]. Literally משהחזיק means when he took possession. There is a legal transfer called חזקה which is one of the ways to legally transfer ownership of real property from one owner to the next. When Shimon makes a חזקה in Reuven’s field, ownership is transferred to Shimon. See Mishna, Kidushin 26a. Generally this classical type of חזקה requires that one do some small act of improving the property. For example; adding a door, making an enclosure or removing an enclosure are acts that transfer ownership. Rashi holds that our Gemara is also discussing this classical type of חזקה, even though the Gemara suggests a slightly different way of performing the חזקה, such as improving the boundaries of the field by elevating them. See Rashi Bava Metzia 14b. Tosafot disagrees vehemently with Rashi’s explanation of our Gemara.In the first chapter of Bava Metzia (14b) Rashi explained that the חזקה under discussion is effective even though no payment was given for the field, because ownership of land can be transferred by חזקה. Obviously Rashi’s understanding of the חזקה that the Gemara is discussing is the classical legal transfer of acquiring a field.Tosafot has four difficulties with Rashi’s explanation. The first:And this is difficult: if we are simply discussing the legal transfer of ownership, why does the Gemara mention חזקה more so than an acquisition by money or a document which are also effective ways of transferring ownership. Since the connotation of חזקהhere is a means of transferring ownership any of the legal transfers could have been mentioned, why did the Gemara specifically speak about חזקה?The second difficulty:And furthermore why does the Gemara ask: when is the חזקה effective? It is a Mishna in chapter Chezkas Habotim (Bava Batra 42a) that when one adds a door, or removes an enclosure or constructs an enclosure he becomes the legal owner of the property. It is very clear how a חזקה is made.The third difficulty:And furthermore, why does the Gemara raise this question here more so than in other places? This question is asked in the Gemara only in reference to this particular issue about the buyer who wants to annul the sale because of those who are contesting Reuven’s ownership.The fourth difficulty:And furthermore, the word דייש-treading, implies merely stepping as when one walks around the boundaries and not as Rashi explained that he improved the boundaries by elevating them.On account of these four difficulties Tosafot constructs an entirely new concept of חזקה in our Gemara that is not found elsewhere. This will explain why the Gemara’s questions about the חזקה are found exclusively in this particular situation. Tosafot will demonstrate that the חזקה discussed here is not the classical חזקה that is usually spoken about together with the other methods of acquiring a field, but rather a form of חזקה that is sometimes needed to finalize a sale in addition to the standard methods of acquiring ownership.And it appears that the explanation is that our Gemara is speaking of when the buyer purchased the field with an absolute act of acquisition such as by exchange1<i class="footnote">חליפין- exchange. This is a symbolic act by the buyer who gives a utensil, such as a handkerchief to the seller. The seller in return transfers ownership of the field to the buyer. This is an effective act of acquisition and is perhaps the one most widely used.</i>, or a document or a proprietary act (חזקה) or plowing the field a bit. Generally, any of these acts of acquisition finalizes the transaction and there is no withdrawal after that point. However, it is within the psyche of a person, that even though he already purchased the field with an absolute act of acquisition, that if challengers will arise who contest his acquisition of the field, he may withdraw from the sale as long as he did not walk around the boundaries of the field, to its length and breadth to see the state of affairs of the field. And that is what is meant by treading on the boundaries. It is because of this understanding of human nature that our Gemara rules that finalizing the transaction is extended somewhat beyond the act of acquisition until the purchaser walks around the field to examine it.2<i class="footnote">Tosafot question assumes that if I owe a person money as a result of an erroneous sale, I need not repay the buyer with cash and can insist that he accept something other than cash. It is therefore logical to ask that the buyer should accept the land in question in lieu of cash since the seller need not pay him with cash. The Gro points out that at the end of the next Tosafot we will see that in a sale where there is an error, the seller must return cash. According to that conclusion, Tosafot question here is inaccurate.</i>Tosafot will now inform us of his opinion that this extension to the finalizing of the transaction is in effect only when money has not passed hands. Once he has paid for the field the buyer has shown that he intends to keep the field under any condition. The act of acquisition is final even though later, challengers contest Reuven’s ownership of the field.And the Gemara is speaking of when the buyer did not give any money and the sale was finalized by a document, exchange or a proprietary act. For if we are speaking of when the buyer gave money, even if the sale was with accountability, why may the buyer withdraw from the sale after he made the חזקה of walking around the field? Since he already made an act of acquisition, gave money and walked around the field, what else is there to do? Will he forever be allowed to withdraw from the sale? We must therefore conclude that our Gemara is speaking exclusively of when money was not yet paid. It is then that we say that a person who is purchasing a field has it within his psyche that he may withdraw from the sale if there will be challengers who contest the sale. Once the buyer paid, that is the finalization of the sale and there are no more extensions.And if you ask: Let the buyer who wants to withdraw from the sale, say to the seller take the land in return for your money. I do not want to accept the land; you take it in place of the money that I owe you.2<i class="footnote">Tosafot question assumes that if I owe a person money as a result of an erroneous sale, I need not repay the buyer with cash and can insist that he accept something other than cash. It is therefore logical to ask that the buyer should accept the land in question in lieu of cash since the seller need not pay him with cash. The Gro points out that at the end of the next Tosafot we will see that in a sale where there is an error, the seller must return cash. According to that conclusion, Tosafot question here is inaccurate.</i> See Hagahos HaGro who questions the validity of Tosafot question.And we can answer: for example the price of land fell and the land is no longer worth the price that it was sold for. If the buyer can withdraw from the sale, he will receive his full purchase price in return. If he must accept the land for its present value he will lose money. Since he does not want to lose any money he must find a way of annulling the sale.Or perhaps, since there have arisen challengers who contest Reuven’s ownership of the field, it is no longer worth as much as it was worth when he bought it and Reuven will not be able to realize the amount of the purchase price by accepting the field in place of the money due him.
  
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  Rav Huna says: either money or best-quality [land]. On the surface it seems that Rav Huno’s statement is totally unrelated to the previous topic of discussion. Obviously, we must search for a reason why Rav Huno’s statement is mentioned in our Gemara. This is especially puzzling since the Gemara begins with רב הונא אמר. This introduction usually implies that there was a statement made before Rav Huno addressed the issue and now Rav Huno will offer his answer to the question. Had the Gemara began with אמר רב הונא it would imply that this is the beginning of a new discussion.On 7b the Gemara discussed the seeming contradiction of the verses that discuss the payment of damages. One requires a payment of the finest fields or vineyards and the other requires a payment of cash.Rashi explained that Rav Huno comes to answer the contradiction of the verses mentioned earlier (7b). According to this view we must say that after the initial answer of the Gemara earlier, the Gemara became involved with the ramifications of that solution. After that exchange was concluded, the Gemara returns to its initial question and Rav Huno presents his answer. However, if we turn back to 7b we will see that the Gemara initially asked about the contradiction between the verse that requires the finest and the Braita that says even bran is acceptable. In our Gemara it seems that Rav Huno is answering the seeming contradiction between the verse that requires the finest land and the verse that requires cash. The issue of bran is first raised after Rav Huno reconciled the issue of the finest versus cash. It does not seem that Rav Huno is answering the question raised in the Gemara on 7b. This seems to be a difficulty according to Rashi’s explanation.And one must say that Rav Huno always intended to reconcile the contradiction between the verse requiring the finest and the Braita that says bran is acceptable. He started by explaining the seeming contradiction between the finest and cash, but he did not get a chance to complete his words, and reconcile that contradiction before they asked him their question about the bran.There are those whose text is אמר רב הונא which implies that Rav Huno’s statement is the opening of a new discussion. And it refers to our Mishna that taught that payment for damages must be made with the finest land and Rav Huno said that the payment need not be exclusively the finest land; rather it can be with the finest or with cash. According to this text Rav Huno did not initially intend to reconcile the contradiction between the verse that requires the finest and the Braita that says bran is acceptable. That question was raised only after he stated that the finest and cash are both equally acceptable. Bran is actually not acceptable when one has either cash or the finest. It is only acceptable when the damager has nothing else with which to pay.On 7b, when the contradiction between the Mishna that insists on the finest and the Braita that accepts bran was raised, Rav Papa and Rav Huno the son of R’ Y’hoshua answered that all movable objects are considered the finest, since they can be transported to a place where they are valued. We will now see that according to the second text of our Gemara there is a dispute about this issue. Rav Huno of our Gemara disagrees with that conclusion. And in the book of Rav Alfas, he explains that Rav Huno the son of R’ Y’hoshua and Rav Papa mentioned earlier (7b) disagree with Rav Huno of our Gemara. For they hold that all movable things are considered the finest and even bran, and Rav Huno of our Gemara holds that the finest is either money or land. The Braita that teaches that bran is acceptable is only in the absence of the finest land or cash.And he, Rav Alfas, decides in favor of Rav Papa and Rav Huno the son of R’ Y’hoshua because they are later amoraim.1<i class="footnote">Generally we follow the opinion of the later amoraim since they were aware of what the earlier authorities said and were able to decide after weighing all opinion on the matter.</i>Tosafot will now present Rabbeinu Tam’s opinion who disagrees with Rav Alfas.And Rabbeinu Tam does not hold the same as Rav Alfas, for he explains that there are three methods of payment for damages. One may pay with eithera) cash orb) the finest of his fields,and if he does not have either of those he may pay even withc) bran.2<i class="footnote">There is some controversy about the opinion of Rabbeinu Tam. Some hold that he is ruling in favor of the earlier Rav Huno even though we generally rule like the latter amoraim, because the Gemara presented his opinion out of order. Chronologically, his opinion should appear before Rav Papa and Rav Huno son of R’ Y’hoshua. Since the Gemara presented his opinion after theirs it appears that the Gemara wants us to accept his as the final opinion. Others say that he holds that there is no dispute on the matter. See Rosh here and Tosafot later 46b ד"ה ה"ג.</i>These are the three possibilities of payment for damages.While on the subject of how one pays for damages Tosafot tells us about some other obligations as well. Perhaps Tosafot teaches us about the payment of other obligations so we can see the contrast between damages and other obligations.And if a debtor has cash he cannot settle the debt with anything but cash. As is evident in the Gemara in Ketubot (86a) in regard to the person who had cash and land with which he could have paid his debt. He insisted that the cash belonged to a gentile. Eventually it was discovered that he was lying. By that time he truly did not have any more cash. The court insisted that the debtor sell the land and deliver the cash to the creditor. The Gemara explains: he did that which was wrong, by refusing to pay the cash to the creditor; therefore the courts did to him that which was wrong, by insisting that he sell the land and give the cash to the creditor. Ordinarily when one only has land with which to pay, that is not the procedure as Tosafot will now explain. And if the debtor has no cash, he the creditor, should not say to him; go to the trouble of selling the land and bring me cash. The creditor must accept the land as the Gemara says there.And a purchaser who found that his purchase was an erroneous purchase and the sale is annulled has the same rule as a creditor. He must be paid with cash and in the absence of cash he must accept whatever else is offered. He cannot demand that the seller’s assets be converted to cash by the seller.And a worker, if the employer3<i class="footnote">The literal translation of בעל הבית is master of the house.</i> has no cash with which to pay and is offering some other form of payment, may say to the employer, go to the trouble of selling whatever it is that you want to pay me with and bring cash, as is evident in Habayis v’Ho’aleeyoh (Bava Metzia 118a) where the Gemara says that the employer cannot say to the employee when he has no cash accept the work that you did as your payment.4<i class="footnote">The Mishna there says: One who hires a worker to work with straw and hay. And the worker says to him: give me my wages. And he answered: take that which you worked as your wages- we do not listen to the employer.</i>
  
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  [isn't that] obvious? [Is] this one a son and that one not a son? Rav Asi says that cash is equivalent to land. The Gemara is searching for the meaning of Rav Asi’s words. One suggestion is that Rav Asi is referring to two brothers who divided their father’s assets. Reuven accepted land and Shimon cash. Eventually their father’s creditor takes Reuven’s land in payment of his debt. Shimon who received cash must divide the cash with Reuven who had received the land because they are equally responsible for their father’s debts. This may have been what Rav Asi meant when he said that cash is equivalent to land. Both brothers share equally in the debts of their father despite what they received as their share of the inheritance. The Gemara challenges this explanation of Rav Asi’s statement because it is so simple that there is no need for him to teach us this law. The Gemara uses the term: certainly, is this one a son and that one not a son? They are both sons and should share equally in the debts of their father. Tosafot wonders why the Gemara is so sure about this. A bit later in the Gemara we see that Shmuel holds that if two brothers divided land and the land was taken from one of them by a creditor, he cannot demand a re-division of his the inheritance. What difference is there between the two cases?And if you ask: why is the Gemara so positive that the brother who received the land is entitled to a share of the cash? Shmuel soon says, about two brothers who divided land and a creditor came and took away the share of one of them he the brother from whom the creditor collected has foregone his inheritance. We see that there are cases where one brother does not have to re-divide his inheritance with the brother from whom the debt was collected. Why is the Gemara here so positive that the second brother who received the cash must re-divide his share with the brother who received the land?And we can answer: that Shmuel specifically said only when they both divided land, that the brother from whom the debt was collected has foregone his inheritance. For, they both stand equally in the same doubt, this one as that one since both brothers are equally liable to the possibility that their land might be collected by a creditor Shmuel believes that each one accepted his portion with the understanding that he may lose his portion if the debt is collected from it and he may gain if his brother’s portion is collected by the creditor.And it is with this understanding that they divided the land; that the brother who will lose will lose. Beside the possibility that he may lose, there is also the possibility that he may gain.However, here, in the case of one brother receiving land and the other receiving cash where the one who receives the land assumes the possible loss and not the one who received the cash, because the movable assets of orphans including cash are not mortgaged for their father’s debts, it is positively understood that it was with this understanding that they divided; that if the one who received the land would lose he will go back to the one who received the cash to re-divide the inheritance.
  
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  And he came and took [the] portion of one of them. The Gemara discusses two brothers who divided land and the creditor collected the land of one of the brother’s. Tosafot wonder how this happened.And if you ask: The law is that each one of the brothers is liable to pay the debts of their father, and a creditor cannot collect the portion of one brother since they are equally liable, as is taught in chapter Yesh Nochalin (Bava Batra 124a). The Mishna there discusses brothers who divided an inheritance and the firstborn received a double portion, if a document of a loan is presented1<i class="footnote">The literal translation of יצא עליהם is – went out upon them.</i> against them, the firstborn must give a double portion towards payment of the debt. Since he receives twice as much as any of the brothers he must pay twice as much as the other brothers. We see that all brothers share in the debts of the father in accordance with the share of the inheritance that they received.And we can answer: that we are speaking here of when the property of one of the brothers was made a specific mortgage for the debt. Usually a creditor’s lien is against a debtor’s property in general, and all brothers must share in the payment. The property of only one of the brothers cannot be seized by the creditor. When a specific mortgage is made, it is only that property that can be used to satisfy the debt and no other. The brother who received that property must surrender his portion. Whether there will be a re-division of the inheritance depends on the dispute in our Gemara.
  
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  And Rav says the division is voided. Rav says that when two brothers, Reuven and Shimon, divided land that they inherited from their father and a creditor seized Reuven’s property, the original division of the estate is annulled and the remaining property is to be re-divided between the two brothers.It seems that Shimon, the brother in possession of his land cannot settle with Reuven, the brother whose property was seized, for money, by paying him half the value of the remaining land. This can be seen because the Gemara uses the term, the division is annulled. Annulled implies that the remaining property is to be re-divided as if the original division never happened.In order to understand Tosafot next question we must be fully aware of Rav Asi’s position in the coming Gemara and Rashi’s two explanations of Rav Asi.Rav Asi says that when the property of Reuven was seized he receives from Shimon רביע בקרקע ורביע במעות. The literal translation of these words is usually, a quarter cash and a quarter lands. Sometimes the connecting “ו” of ורביע במעות can be translated as “or”. Rashi offers two explanations of Rav Asi’s statement:a) There is a doubt if the transaction is thought of as a division of an inheritance or a sale. The sale as Shmuel says is without accountability. If we ruled that it was an inheritance the shares are re-divided and each of the brothers receives twenty five percent of the original inheritance. If we rule that the transaction is a sale without accountability Reuven, the brother whose property was seized, receives nothing. Rav Asi rules that it is a doubt and therefore he receives only twelve and a half percent of the original inheritance which is equal to twenty five percent of his own original share. According to this explanation, ורביע במעות means or a quarter of his original share in cash. The brother in possession has the option of paying his brother twelve and a half percent of the original inheritance with cash or with land. b) There is a doubt that the transaction is an inheritance or a sale. According to this second explanation, if it is a sale, it is a sale with accountability. In either case Reuven, whose portion was seized, will receive fifty percent of his original share; the doubt is only whether he receives it in land as the result of an annulment of the original division or in cash as the result of a purchase for which the seller is accountable. The word ורביע במעות mean and a quarter of his original share in cash.And this is bewildering. Why is this different than Rav Asi’s ruling, which holds that Shimon, the brother in possession, can settle with cash for that quarter that Reuven receives because of inheritance?1<i class="footnote">Most commentators understand that this question is asked against the first explanation of Rav Asi’s opinion. Rashi explained that there is a doubt as to whether the original transaction between the brothers is a sale without accountability or a division of an inheritance. He receives twenty five percent of his original portion because of this doubt. The only reason for him to collect is because this may have been a division of an inheritance. If so, how can he be paid out with cash? As an heir he should receive land. We see from Rav Asi’s ruling that even what is paid out for his portion of an inheritance can be paid with cash. If this explanation is correct, the question is addressed to the first explanation of Rashi. This presents a problem, because Tosafot later favors the second explanation of Rashi. See אוצר מפרשי התלמוד notes 296-298 for a lengthy discussion of this issue.</i> And we can answer: that Rav Asi holds that even if we view the brothers as heirs who divided an inheritance, Shimon, can settle Reuven, for cash, because he can say to him, I would have settled with the creditor for cash and I would not have allowed him to collect the property. The fact that the property was seized is strictly your fault and I need not suffer for your mistake. And Rav is not concerned with that rationale. Rav holds that since the property was taken away from him legitimately he is not penalized for not having sufficient funds with which to settle with the creditor. See Rashbo.Tosafot just answered that Rav Asi holds that the brother in possession can argue; I would have settled with the creditor for cash. In the previous Tosafot we said that our Gemara is speaking of where there was a specific mortgage and only that property can be used to satisfy the debt. How can Tosafot now say that the brother in possession could argue; I would have settled for cash?And even though, our Gemara is speaking of when the property seized was made a specific mortgage, if so, how can one claim that he would have settled with the creditor for cash? Our Gemara is not speaking of a mortgage as strong as the mortgage of Ham’kabail (Bava Metzia 110b), where it seems that the purchaser2<i class="footnote">The Gemara there is speaking of where a mortgaged property was sold. The purchaser improved the property and it is now worth more than the debt. The creditor collects the entire improved property. He must of course pay the purchaser for the improvements. The Gemara asks: why doesn't the purchaser insist that he be paid for his improvements with land. The Gemara answers that we are speaking of where there was a specific mortgage on the property and the purchaser could not have settled with the creditor for cash. That specific mortgage, Tosafot holds cannot even be paid with cash, the specific mortgage of our Gemara may be paid with cash.</i> of the property could not settle with the creditor for cash. Rather, the specific mortgage of our Gemara may be paid with cash. If the debtor was not able to pay cash then the debt would be paid only from that specific property. The debtor could not insist on paying from any other property.(Tosafot has now established that there are two levels of ‘specific mortgages’:A) A specific parcel of land is set aside to be used as payment if the lender will not be able to pay with cash. If the lender sells this property, the buyer may redeem settle with the creditor for cash. This is the case of our Gemara. Therefore, Shimon can say to Reuven: I would have paid the creditor with cash and not have allowed him to collect the property, so too, I will pay you with cash.B) In addition to specifying that a specific parcel will be used to pay the debt if the lender does not have cash, the lender adds: You will be paid only from this property. In this case which is the case of the Bava Metzia 110b, the purchaser of said property cannot redeem the property for cash. See Shulchon Oruch C.M. 117, 1, for other differences between these two specific mortgages.)The Gemara rules in Bava Metzia 35a, that if a property is taken from a debtor to satisfy a debt, the debtor can redeem the property forever.And if you ask: In any case, Reuven, the brother from whom the property was seized should pay the money he receives from Shimon to the creditor and redeem the land. For it is well established in chapter Hamafkid (ibid. 35a) that land that was collected to satisfy a debt can be redeemed forever.3<i class="footnote">See אוצר התוספות note 1569, who quotes Ritvo of Bava Metzia 35b, who says that only in the case of ‘specific mortgage A)’ can the land be redeemed forever, but in the case of ‘specific mortgage B)’, once the land is collected by the creditor it can no longer be redeemed.</i> See אוצר התוספות note 1569, who quotes Ritvo of Bava Metzia 35b, who says that only in the case of ‘specific mortgage A)’ can the land be redeemed forever, but in the case of ‘specific mortgage B)’, once the land is collected by the creditor it can no longer be redeemed. If so, why is there any issue at all whether he will be paid with cash or land he can always convert the cash he receives into the land that was seized from him?And we can answer: that the difference is when the creditor sold the land to another party or he died and it was inherited by his heirs. The Gemara there says that it cannot be redeemed after it was sold or inherited. It is in this situation where Reuven wants to collect land from Shimon. Otherwise Reuven would be perfectly happy to do as Tosafot suggested in his question, to take the cash from Shimon and redeem the land from the creditor.
  Similar to heirs. The Gemara says that Rav’s decision that the division is annulled is based on his belief that the original transaction dividing the property is not a sale of each brother’s share to the other but a division of inheritance.For if the original transaction is the equivalent of a sale with accountability, why is the division annulled, the brother in possession should pay the brother whose property was seized with cash.
  
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  Rav Asi [is] uncertain, etc. See ד"ה ורב אמר בטלה מחלוקת תוס' for a lengthy discussion of Rav Asi’s position and Rashi’s two explanations of Rav Asi’s position. In the first explanation Rashi explained that he, Reuven, receives his portion in land or cash because he is in doubt whether they are similar to heirs and the division is annulled or they are similar to purchasers without accountability and the brother in possession owes his brother nothing.And this is difficult to understand. How does the Gemara know that Rav Asi is in doubt about them being treated as heirs at all? Perhaps he is positive that they are not heirs, but his doubt is whether they are similar to purchasers with accountability and the brother whose property was seized must be reimbursed or they are similar to purchasers without accountability and he need not be reimbursed?1<i class="footnote">Rashi may feel that since the Gemara says that Shimon has the option of paying with land, the Gemara is saying that since this is a possible fulfillment of the obligation to re-divide the inheritance, Shimon may give half of parcel B). Even if land values fell since the inheritance was initially divided, if we view Shimon’s reimbursement of Reuven as a re-division of the inheritance, he can certainly give him half the land, even though it is worth less than it was at the initial division. If however this was a sale with accountability, Shimon would have to pay Reuven half of the value of the land at the time of the original division. Rav Assee’s saying that he may pay with land is a statement this is a re-division of the land that Shimon has the option of doing. According to Tosafot however, one must ask why Rav Asi even mentions payment with land. There is only a reimbursement for a sale that went bad and that need not be paid with land at all. He may have the option to pay with land but that would be like using any other item of value and the Gemara should have described it as using ‘the value of cash’.</i>Therefore, it appears like the last explanation. That the doubt is whether they are similar to heirs and the brother whose property was seized is entitled to be reimbursed with land, or whether he is similar to a purchaser with accountability and he can be paid out with cash. The decision is that because of the doubt he is paid with half land and half cash.
  Therefore, he takes a quarter in land and [he takes the other] quarter in money. This decision seems to follow the rule that when there is a doubt about money matters we divide the money between the two sides. Here too, we are giving each side half of the advantageous position. One brother wants to receive all land and the other wants to pay only cash. We give each brother half of what he wants, thus Reuven is paid with half land and half cash.Is this in fact a ruling that we always divide funds in doubt, between the two sides, as opposed to the opinion that when there is a doubt in money matters we favor possession and the one who wants to extract money from the possessor must prove that he is right, otherwise he receives nothing? Tosafot says that this is not the case. This position does not oppose the concept of ruling in favor of possession. For it is not possible to apply the rule; he who wants to extract money from his neighbor, the burden of proof is upon him. If there is a doubt whether one brother owes the other brother or not, we apply the rule favoring the one in possession. However, when one brother definitely owes the other brother and the question is the vehicle of payment, the law favoring the one in possession is not applicable. 
  
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  If we say one-third of his estate. How much is one required to spend in order to perform a mitzvah? That is the central issue of this Tosafot. The sources in Gemara are few and vague and Tosafot constructs his opinion based more on what has not been said than on what has been said. The first question one might ask is why is there any limit at all to the amount one is required to spend. Hashem tells us to buy an esrog, theoretically we should have to spend whatever it takes. Perhaps we should even have to go into debt? The consensus is that we are required to look not only at the cost of the particular mitzvah but also at the ramifications of spending all of one’s assets on a mitzvah. If you spent all your money on an esrog you would then have to live a life of poverty. Chazal say that poverty leads one to go against his master’s will. Obviously, the performance of a mitzvah cannot require us to put ourselves in a situation where we are liable to eventually go against the will of our Master. We must avoid poverty even at the cost of a particular mitzvah. We must now search for sources that will teach us what is considered an amount that may lead to poverty and what is not. Tosafot now leads us on a step by step tour through the available sources.Our Gemara asks: if one was faced with three mitzvos, would he be required to spend all his money?This question implies that one does not have to squander all his assets to purchase an esrog, even though he cannot find one for less and it is a mitzvah that passes with time. The mitzvah of esrog is limited to the first day of Sukos by Torah law. If one does not purchase an esrog, he will lose the opportunity to do the mitzvah.Our Gemara is not discussing spending all of one’s assets for one mitzvah. It is discussing spending all of one’s assets for three mitzvos.And it seems from our Gemara that even to spend a third of his assets1<i class="footnote"> ביתו literally means his house.</i> is not required.Tosafot shows us his final source that reduces the obligation even further, to a fifth of one’s assets.And we also say in Ketubot (50a): He who squanders should not squander more than a fifth.2<i class="footnote">The Gemara in Ketubot is discussing the maximum one should give of his assets to charity. Tosafot assumes that the same limitation applies to other mitzvos as well.</i>Even to spend a major amount of money for the performance of a mitzvah is not required.And in sukoh (41b) the Gemara considers it surprising that Rabon Gamlee’ail purchased an esrog for one thousand dinar. 
  If it happened to him. The Gemara is attempting to prove that it is not likely that one should have to spend a third of his wealth to perform a mitzvah. The Gemara argues that if he was faced with three mitzvos he would have to spend all his assets on those mitzvos. This statement is not entirely accurate. For if he was faced with three mitzvos and spent a third on the first mitzvah, for example if he owned three hundred dollars and spent one hundred on the first mitzvah, he would have to spend only one third of the two hundred dollars that was left after the first mitzvah and so on. He would never spend all his assets. This system is referred to as the tenths of Rebbe, who said that male heirs of an inheritance must spend a tenth of their assets to marry off their sisters. The Gemara asks: if they have ten sisters they will have nothing left? The Gemara responds that they give for the second sister only a tenth of what was left after the first sister married. Their entire fortune will not be spent.Even if we say that the third that must be spent for each mitzvah is along the same pattern as the tenths of Rebbe, as we find in chapter M’tzias Ho’eeshoh (Ketubot 68a), and one would virtually never spend all his assets on the performance of mitzvos if this model was followed, even so the Gemara knew that one is not liable to spend so much of his wealth for the performance of mitzvos.
  
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  Up to one third of the mitzvah. The Gemara has altered its initial understanding of R’ Zeira’s statement. He did not mean that one must spend a third of his assets for a mitzvah. Rather, he must add a third for beautifying the mitzvah. How does one measure a third of a mitzvah? Rashi says that the additional third is also measured in money. If one finds an esrog with which he can fulfill the minimal requirements of the mitzvah and he has the option of spending more money to purchase a finer esrog, he must spend an additional third. Tosafot has a different view about how we measure the additional third of the performance of mitzvos.The explanation is: That if one found an esrog the size of a walnut which is the minimum size that the sages have calculated for fulfilling the mitzvah, and another esrog a third larger than the first is available, he should buy the larger esrog.Tosafot measures the third for beautifying a mitzvah not by the amount of money needed for the minimum requirement but by the object of the mitzvah itself, as in the case of the esrog as Tosafot explains it.
  
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  From the Holy One, Blessed be He. Rashi says that Hashem will pay him back the additional money he spent in his lifetime. Tosafot is uncomfortable with this explanation because ultimately it is better to be rewarded in the next world where reward is eternal than in this passing existence. The Mishna at the beginning of Masechet Pai’oh says that there are certain mitzvos for which the principal reward is in the world to come and only the dividends are paid in this world. Tosafot holds that the same applies here.He eats the dividends1<i class="footnote"> פירות- literally fruits.</i> in this world and the principal remains for him in the world to come.
  
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  A tethered ox and a covered pit. The Braita compared shor and bor to aish, and said that one is liable for giving his shor and bor to a deaf mute, an idiot and a minor but not when he gives them his aish-fire. The Gemara is searching for the exact level of security that he provided for the shor and bor and the comparable level of security that he provided for the fire. Of course, we will need to understand, why, if the levels of security are comparable is there a difference between the shor and bor and the fire?We will see in the next Tosafot that he believes that initially the Gemara held that the level of security provided by tying an ox and covering a bor is sufficient to exempt one from liability if not for the involvement of the deaf mute, the minor and the idiot. To this end Tosafot explains that the level of security initially suggested by the Gemara is the appropriate level.First, Tosafot suggests that it is logical that the level suggested must be the proper level of security. When the Gemara suggests that the shor was tied and the bor covered, the meaning of tied and covered is that they were tied and covered appropriately, for if the Gemara meant that it was not tied or covered appropriately, such tying and covering is of no value and could not exempt the owner from liability. Secondly, Tosafot proves from the context of the Gemara’s question, that the level of security is sufficient to exempt the shor and bor owner.And furthermore, since the Gemara asks: “why is this, the shor and the bor different than the coal?” The thrust of the question is to say that both the shor and bor and the aish should be exempt and this can be true only if we are discussing a shor that was tied properly and a bor that was covered properly.That the Gemara’s objective with asking its question is that the shor and bor should also be exempt can be seen from the fact that the Gemara afterward sets up the situation of the Braita as speaking of an untied shor and an uncovered bor. It is evident that the Gemara is certainly searching for circumstances that the shor or bor owner is liable. It appears that the Gemara could not tolerate the idea that one might be liable for a tied ox or a covered bor. This must be because the Gemara was speaking of a shor that is tied properly and a bor that is covered properly.
  
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  An ox's way is to detach. Rashi explains that when the Gemara says: an ox becomes untied, it means that even without the involvement of the deaf mute it commonly works its way loose on its own and so too the bor’ is regularly uncovered on its own as a result of the traffic that passes over it.And this is difficult. For we are compelled to say that we are speaking of when the ox was tied properly and the bor was covered properly as we explained (see previous Tosafot), but later we are taught by the Mishna (52a): when one covers a bor properly he is exempt. If so, how can our Gemara conclude according to Resh Lokish that one is liable for a properly covered bor because the cover is commonly dislodged? This is a direct contradiction to the Mishna on 52a.Due to this difficulty, Tosafot rejects Rashi’s explanation.And it is more appealing to explain that when the Gemara says it commonly works its way loose, the Gemara is saying: that this is due to the deaf mute’s involvement, for the level of security is reduced, because the owner gave the secured ox to a deaf-mute. If not for the deaf mute’s involvement the ox would have remained tied. It is precisely because the owner handed over the ox to a deaf mute that a hazardous situation was created. However, handing over a coal to a deaf mute does not lessen the level of security as much as handing over an ox, for a deaf mute does not generally fan a coal, as it is common for him to untie an ox and to uncover a bor,1<i class="footnote">This may be an explanation of why the security hazard is less for a live coal than an ox. The ox’s potential to damage does not pass with time. The coal’s potential to cause damage passes in a relatively short time span. Since there is so much less time for the deaf mute to cause problems, handing over the coal to him is not considered a breach of appropriate security.</i> for when a coal is left alone the fire will become weaker and weaker and be extinguished.In summation Tosafot holds that according to Resh Lokish it is the involvement of the deaf mute that causes a greater hazard when he is left with an untied ox or a covered bor. If the deaf mute was not involved the owner would be exempt.
  
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  And according to Rabbi Yoḥanan, who says: even [if] one transferred a flame to [him, he is] exempt, etc. The Braita stated that one who hands over a shor or a bor to a deaf mute is liable. This is not so of aish. When one gives an aish to a deaf mute he is exempt. The Gemara is searching for the risk level at which one is exempt by aish and will then determine the comparable level of shor and bor for which one is liable. The Gemara proves that Resh Lokish holds that one is liable for giving a flame to a deaf mute. If so, the case that one is exempt by aish is when one gives a coal that has a relatively lower risk level to a deaf mute. The comparable case of shor and bor is when the shor is tied and the bor is covered.Why is one liable for the shor and bor in that case? The Gemara answered that the shor and bor owners are liable because although they are considered low level risks if the deaf mute were not involved, now that the owner gave them to a deaf mute to guard them, it is to be expected that they will cause damage.<u>Risk level</u><u>Shor</u>	 Tied - liable		<u>Bor</u> Covered – liable<u>Aish</u> Coal – exempt According to Tosafot’ understanding of Resh Lokish: shor and bor will become untied and uncovered when they are given to a deaf mute to guard them, therefore the owner is liable. The coal aish will routinely be extinguished and the owner is exempt.The Gemara now turns to R’ Yochanan who holds that one is exempt even when handing over a flame to a deaf mute. If so, the Gemara asks, the comparable level of security is an untied shor and an uncovered bor.<u>Risk level</u> The Gemara’s conclusion according to R’ Yochanan:<u>Shor</u>	Untied- liable <u>Bor</u> 	 Uncovered-liable<u> Aish</u> Flame – exempt If so, why is one exempt for the flame and liable for the shor and bor? It seems that the Gemara does not have a problem understanding that one is exempt for giving a flame to a deaf mute. Tosafot assumes that the Gemara held that according to R’ Yochanan, just as a coal is a low level risk because it grows weaker and weaker and eventually extinguishes, so too, a flame is also a low level risk because if it is not fanned it will grow weaker and weaker and extinguish.The Gemara can accept this conclusion. It seems to have a problem with the comparison of this risk level to shor and bor, when it argues that the comparable level of shor and bor is an untied shor and an uncovered bor. Why is one exempt for handing over a flame to a deaf mute and liable for handing over an untied shor and an uncovered bor?<u>Risk level</u>According to Tosafot question:<u>Shor</u> Tied – liable<u>Bor </u> Covered – liable <u> Aish</u> Flame – exempt*<i class="footnote">Because it becomes constantly weaker</i>Tosafot’ question assumes that the reason the Gemara accepts R’ Yochanan’s ruling as logical is because he considers the risk level of a flame equal to the risk level of a coal. Hence, the Gemara that says that a flame is comparable to an untied shor and an uncovered bor is problematic. The risk level of a flame should be comparable to a tied shor and a covered bor.This is bewildering. What is the Gemara asking when it says that a flame is comparable to an untied shor and an uncovered bor? But it would seem that a flame according to R’ Yochanan is a low level risk, equivalent to a coal according to Resh Lokish. Just as Resh Lokish holds that a coal is likely to be extinguished, so to according to R’ Yochanan a flame is likely to be extinguished. If so, the Braita that compares the shor and bor to aish can be set up as speaking about a tied ox and a covered bor which are low level risks and the reason for the liability when handing them over to a deaf mute is because the deaf mute is likely to untie the ox and uncover the bor, exactly as was said according to Resh Lokish. Why does the Gemara need to say that the comparable risk level for the shor and bor is an untied shor and an uncovered bor which are high level risks?1<i class="footnote">See Maharsho who asks: according to Tosafot hypothesis that R’ Yochanan holds that a flame is equal to a coal because they both grow weaker, why did the Gemara not understand that there is an inherent difference between an untied shor and a flame? The flame will automatically extinguish, whereas the untied shor remains a potential damager.</i>To solve this problem, we must depart from the original assumption that a flame is equal to a coal and find another reason why the Gemara understands R’ Yochanan’s ruling that one is exempt for handing a flame to a deaf mute.And we can answer: That it seemed to the Gemara that the reason R’ Yochanan exempts one for handing over a flame to a minor is because the minor guards it and the minor does not cause damage. Rather, to the contrary, he provides protection. The flame per se is as hazardous as an untied shor and an uncovered bor, but it is the protection provided by the minor that exempts the owner. The Gemara then correctly asks if the minor’s efforts are considered proper security for a flame even though the risk level of the flame is high, why are his efforts not considered proper security for an untied shor and an uncovered bor?Tosafot has now concluded that R’ Yochanan holds that a flame is a high risk level but the minor provides a suitable amount of protection to render the owner exempt. There are additional benefits in understanding the Gemara with this approach. And now, with the understanding that a flame is a high risk level, but one is exempt because of the security provided by the minor, the meaning of the Gemara is uncomplicated. Because we will not have a difficulty with R’ Yochanan, who set up the Braita with an untied ox and an uncovered bor; why is it necessary for the Braita to mention that he handed them over to a deaf mute, an idiot and a minor? He would certainly be liable even if he had not handed the ox and bor over to the minor. The reason that the Braita mentioned that he handed them over to a deaf mute, an idiot and a minor is to teach us a greater novelty, that even though he provided some security by handing over the untied ox and the uncovered bor to a minor he is still liable.And about this idea, whether the handing over to the minor is reason to exempt as R’ Yochanan holds or it is reason for liability, R’ Yochanan disagrees with Resh Lokish, who holds that involving a minor in guarding a tied shor or a covered bor is reason for liability as Tosafot concluded earlier.The conclusion of the Gemara, differentiating between bor and shor for which one is liable when he gives them to a minor and aish for which he is not, requires additional explanation according to Tosafot. Tosafot Rabbeinu Peretz says that the Gemara is essentially differentiating between the need to provide active or passive security. In the case of aish it is a positive action of the deaf mute that may cause a fire. If the flame is left as is, no damage will occur. For this, the passive security provided by handing over the flame to the minor and entrusting him with it is sufficient. If the minor then decides to cause damage with the flame the owner is not responsible. With shor and bor the opposite is true. If not actively guarded the shor and bor will cause damage on their own, the efforts of the minor are not necessary to cause the damage. The minor must prevent the ox and bor from causing damage and this he is not capable of doing. Handing over the ox and the bor to a minor is not providing aggressive security and the owner is liable for any damage that his shor or bor cause.
  
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  A stringency [that applies] to the ox. The Braita is discussing the relative chumros - stringencies and kulos - leniencies of various avos. Shor is mentioned among them. But shor has three avos, keren, shain and regel. Which one is the Braita discussing?This av of shor that the Braita is discussing is keren, as is evident from our entire Gemara.1<i class="footnote">The Braita says that bor is a muad at the outset which is not true of shor. Shain and regel are also initially muad. It is only keren that is first a tam and only later a muad.</i>
  
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  The way [of the ox is] to proceed and cause damage. While the Braita is discussing the relative stringent and lenient aspects of the avos, the Braita does not mention some of the stringent characteristics mentioned in our Mishna. For example, the Braita does not mention that shor is alive, which is mentioned in our Mishna. Nor does it mention that shor has intent to damage, which is mentioned in the Gemara on 2b. Tosafot wants to know why these chumros were not mentioned in the Braita. The first stringency Tosafot addresses is that Shor is alive.The reason the Braita does not mention that shor is alive which is not so of bor is because that is included in the chumro - stringency mentioned, and it is usual for shor to travel and damage.1<i class="footnote">It seems from Tosafot that the traveling and damaging is a function of being alive. Although that is definitely true, it does present a problem in the understanding of our Braita. Our Mishna describes aish as “it usually travels and damages” even though it is not alive. We are compelled to say that Tosafot is referring to the reality that in the case of shor it does travel and damage because it is alive, although there certainly are situations where an av travels and damages even though it is not alive.</i>And that shor has intent to damage cannot be mentioned in contrast to bor which is not alive and inherently is incapable of intent.2<i class="footnote">Tosafot seems to hold that we cannot say that av A has a chumro over av B when av B is inherently incapable of that chumro, such as in the case before us. We cannot say that keren has the chumro of intent to harm as opposed to bor that does not when bor is inherently incapable of having that chumro since it is not alive. This is a bit problematic. Later the Gemara says that shor has a chumro that bor does not have. Shor is liable for trampling on a plowed field while bor is not. In that case bor is inherently incapable of trampling because it does not move and yet the Gemara presents it as a chumro. Some commentators explain that Tosafot does not mean that we cannot make a comparison when one of the avos is incapable of a particular function, such as the bor’s incapability of moving. We certainly can refer to this as a leniency of bor. Tosafot only said that this Braita cannot mention that shor has intent to harm as opposed to bor which does not have intent since it is not alive, because the Braita already alluded to the fact that shor is alive as opposed to bor, when it said that shor travels and damages and bor does not. Since the Braita already alluded to the underlying reason that bor does not have intent it cannot again present its lack of intent as a leniency.</i>
   Which is not true regarding the pit. The Braita says that when a person is killed in a bor, the bor owner does not pay kofer. And the same is true of aish, as the Braita soon teaches us when comparing shor to aish, that shor pays the kofer which is not so of aish.It is clear from the Braita that both bor and aish do not pay kofer. What is not clear is the source of this ruling.1<i class="footnote">Rashi in ד"ה מה שאין כן בבור says that the source for the exemption of bor is in Shemot 21, 33 “shor” and not a person, that teaches us that bor is not liable for the death of a person. Rashi on 10a ד"ה מה שאין כן באש explains why aish is exempt form the payment of kofer. A person may be killed by an aish if he did not run away from the fire. In that case the one who kindled the fire is exempt because the victim should have run away. If the victim was tied and could not run away the perpetrator is also exempt from payment of kofer, because of the rule - a lesser punishment is canceled by a greater punishment. Since the perpetrator will be liable for capital punishment, that cancels the lesser punishment of kofer. Tosafot does not even mention Rashi’s sources for these two rulings. Obviously, he does not accept them. Why not? Aish that may be exempt because of a smaller punishment being canceled by a greater punishment, assumes that starting a fire is equivalent to shooting an arrow and it is as if a person killed by his own power, not by allowing his property to damage others. It is only when a person kills by himself that he is liable for capital punishment. This explanation of aish is actually the subject of a dispute later in the Gemara between R’ Yochanan and Resh Lokish. Tosafot feels that it is insufficient to quote a source that is only correct according to one opinion in the Gemara. In addition, it is clear later in the Gemara that even according to R’ Yochanan there are instances when aish is considered one’s property that is damaging and not as if he had shot an arrow. Those cases are not covered by Rashi’s explanation. Tosafot feels that there should be a source for all types of aish. As far as the source that Rashi quoted for bor, it is possible that Tosafot agrees with Rashi that this is a possible source. We will see later in Tosafot that Tosafot himself questions why we need the teaching “shor” and not a person, when we have the source that Tosafot furnishes. Although Tosafot finds an answer to this question, he may agree that the source Rashi quoted is in fact accurate. The reason that Tosafot does not use Rashi’s source is because it only answers bor, it does not answer aish. Since Tosafot had to find a source for aish that will at once answer bor as well, he does not mention Rashi’s source for the exemption of bor from kofer.</i>And if you ask: And we should learn from shor2<i class="footnote">Tosafot means by the method of בנין אב- a general principle. When the Torah teaches us a law, such as the payment of kofer when a shor kills with its keren, it is logical to learn from keren that when one kills a person by one of the other avos that he is also liable for kofer. This system of learning the rules of one av from another is subject to refutation as Tosafot will soon show us. See Tosafot 2a ד"ה לא הרי השור כהרי המבעה note 1, for further clarification.</i> and they, bor and aish, should be liable for kofer? And even though it can be said as a refutation of this comparison to shor, that shor is alive and that is why it has a chumro to pay kofer while bor and aish are not alive, and that is why they do not have the chumro of paying kofer, ultimately, this refutation cannot be used. For the Gemara concludes later in perek Kaitzad (26a) that there is liability for kofer when a person is killed by regel. We see that we learn that regel is liable from keren, and we do not refute the derivation by arguing how can you compare regel to keren? Keren should be liable because it has intent to damage which regel does not and it also has another chumro that it is liable in a public domain where regel is not liable. We see that when learning from keren that another av should be liable for kofer we do not present the usual refutations that would disallow the derivation.3<i class="footnote">Tosafot seems to be saying that we do in fact see that the derivation from keren is not subject to refutation. This is truly perplexing; why should it not be subject to refutation? Actually Tosafot later 26a asks this question and leaves it unanswered. Tosafot Rabbeinu Peretz says that in the verse dealing with kofer we have the words והועד בבעליו, these words teach us that in addition to keren which is first a tam and then becomes a muad, all avos that are initially muad are also subject to the kofer fine, this could of course include bor and aish if we do not find a verse to teach us that this derivation is not to be applied to bor and aish.</i>We must agree that shor could be used as a source to teach us that all other avos are liable to pay kofer when they kill a person. We must now have a verse that teaches us that we should not learn from shor that all avos should be liable for kofer payment.And we can answer: That aish and bor are exempt from kofer because we expound the verse in Shemot 21, 30, “If he shall place kofer on him”, on him, refers to the shor and we understand that the liability for kofer is exclusively on him, the shor, and not on the bor. The same applies to aish- on him, the shor, and not on the aish, just as the Gemara expounds this verse at the conclusion of Kaitzad (ibid.) on him, the shor; there is liability for kofer and not on the person who kills.4<i class="footnote">But why does this exclusion not apply to shain and regel as well? We should say that the very same verse that excludes Aish and bor from kofer also excludes shain and regel as well. See אוצר התוספות note 1681 who explains that the exclusion is about the word שור, and that word includes shain and regel which are also primary damager of שור, but excludes bor and aish which are not related to שור.</i>We now see that there is a specific source - on him, and not on the bor - to teach us that bor is not liable for kofer when a person is killed by bor. In the verse dealing with bor, the Torah writes “and an ox or a donkey will fall into it”. The Gemara expounds the word “an ox” to exclude a person who falls into a bor. (See note 1) One is only liable if an animal falls into his pit and not when a person falls into his pit.And if you ask: the teaching shor and not a person, which is written by bor to exclude a person who fell into the bor, why is it necessary? It can be derived from the verse written in regard to kofer, on him, the shor there is an obligation to pay kofer and not on a bor that kills.Tosafot question assumes that “an ox and not a bor” excludes the bor owner from the payment of kofer. In order to answer Tosafot question we must depart from that assumption. And we can answer: The verse that teaches us that the victim of bor must be a shor and not a person is needed to exempt the bor owner when a Canaanite slave falls into the bor or when a gentile who was owned by a Jew5<i class="footnote">A Canaanite slave is completely owned by his master. His very body is the property of his master and he has a special status. He is obligated to observe the mitzvos that a woman must observe. If a Gentile does not wish to partially convert to the status of a Canaanite slave one may not keep him as a slave. One can however have a long term contract on his labor. This is what is meant by a gentile who belongs to a Jew. When he is killed the Jew loses the value of his labor contract with the gentile. He must be compensated. However, when the cause of the gentile’s death is a bor, the bor owner is exempt.</i> falls into the bor. In either of these cases there is no kofer payment and thus there is no need to exclude the bor from payment of kofer. The verse is needed to exempt the bor from paying for the value of the slave6<i class="footnote">When a slave is killed by keren, there is a special payment of thirty sh’kolim that one must pay. Most commentators hold that the same rules that apply to kofer apply to the thirty sh’kolim of a slave. Those avos that are excluded from paying kofer such as a bor or aish need not pay the thirty sh’kolim for the slave. The payment that Tosafot is referring to is the actual value of a slave. One may be exempt from the kofer payment but still be liable for the loss the slave owner incurs by the death of his slave. For this we require a special exclusion, “shor” and not a person.</i> or the Gentile owned by a Jew. That could not be derived from the verse “on him” and not on the bor, because that verse is speaking exclusively about kofer and not the payment for the value of the slave.
  
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  [There is] a stringency that applies to ox, as opposed to fire. Here again Tosafot wants to know why the Braita did not mention the chumros used by our Mishna.The reason that the Braita does not mention that the shor is alive, is because that is included in the chumro that if one hands over an ox to a deaf mute, an idiot or a minor he is liable. For the exemption for handing over an aish to a minor depends on this fact that the aish is not alive.1<i class="footnote">This is very problematic. It seems that Tosafot holds the reason one is exempt when handing over an aish to a minor is because the aish is not alive. Actually, one is liable for putting a minor in charge of a bor even though the bor is not alive. Some answer that there is an essential difference between a bor and a fire. The bor in a public domain is initially a damager and should be stuffed. Even though it is not alive one is liable for putting a minor in charge of the bor. An aish is not initially a damager; it may initially serve a constructive purpose. If it were alive one would be liable as one is liable for handing over a live ox to a minor. It is precisely because it is not alive that one is exempt when handing it over to a minor.</i> 
  
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  [He] omitted a concealed [item]. The source for the exemption of hidden items that are burned is in Sh’mos 22, 5. The Torah mentions among the things that are destroyed by fire, או הקמה or a standing crop. Our Rabanan understand that this comes to teach us that just as a standing crop is visible, so too, one is liable only for the destruction of items that are visible. In regard to bor the Torah speaks of the victims as an ox and a donkey. The Gemara expounds the verse as follows: an ox- and not a person, a donkey- and not vessels. When vessels are damaged by a bor the bor owner is exempt. Rashi and Tosafot disagree about what the exclusion of vessels encompasses.The Tano of the Braita did not mention the rule of hidden object for which one is exempt when damaging them by aish and liable when damaging them by shor and bor.And Rashi explained how a shor and a bor might damage a hidden object. For example, an ox kicked a sack full of utensils and broke them and so too if a sack full of wheat fell into a bor and was destroyed, the shor and bor owners are liable. Rashi when discussing shor speaks of a sack of utensils. He undoubtedly changed the scenario for bor and speaks of a sack of wheat, because bor is not liable for utensils in any case. Rashi therefore said that a sack of wheat fell into the bor. Rashi is saying that ordinarily bor is liable for wheat. It is only in this instance that the wheat is hidden that the bor is not liable for damaging the wheat. Tosafot disputes Rashi on this ruling.And Rashi was not precise, because all things that are not alive are excluded from the word donkey in the verse of bor, just as utensils are excluded from that word. The exclusion applies to anything that is not alive as the donkey is alive. This excludes vessels and all things that are not live.Tosafot offers proof of his ruling that a bor is always exempt when it damages wheat. The Mishna on 47b discusses one who brings his ox into another person’s premises. The ox falls into a bor and pollutes the water; the ox owner must pay for the water. On 48b the Gemara comments that this is only true if the ox polluted the water as it fell into the bor, but if it pollutes the water after it fell, the ox owner is exempt. The Gemara explains that the body of the ox in the pit is considered a bor and when it damages the water it is exempt because the water is the equivalent of vessels.As the Gemara says at the end of haporoh (48b) in regard to an ox that fell into a bor and polluted the water, if the water was polluted only after the ox fell in and not as it fell in, the ox owner is exempt. The Gemara there explains because the ox as its body lies in the water is a bor and the water that was polluted is the equivalent of vessels, and we do not fin that one is ever liable for damaging vessels by a bor. We see that the Gemara says that water is also excluded from bor because of the same exclusion as vessels. Obviously any object that is not alive is excluded by expounding the verse, a donkey and not vessels. 
  
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  [A fire] scorched [another person’s] plowed field or singed his stones. Rashi does not say here how fire licking one’s plowed field or singeing one’s stones is not applicable to bor. Tosafot cites Rashi’s explanation later about a similar situation.Later in our Gemara in regard to the Gemara’s discussion of an ox is liable for trampling on a plowed field when the Gemara says that this is not so of bor Rashi explains that it is not possible for a bor to damage land since the bor cannot move to where the land is.It seems that here as well in regard to licking plowed fields and scorching stones Rashi wants to explain the phrase that this is not so of bor, that the bor cannot damage a plowed field or stones. Although it is definitely true that a bor cannot damage a field or stones, Tosafot finds this explanation faulty.And this is difficult. For if it was so, that the phrase means that bor cannot damage a plowed field or stones, the Gemara might have mentioned many damages that aish does to a stationary object such as burning one’s house and other stationary things. If the crux of the issue is that bor cannot damage stationary objects, the Gemara did not have to single out a plowed field or stones which are relatively unusual. The Gemara could have spoken about burning a house which is far more common.1<i class="footnote">Rashi might hold that the Gemara singles out this example of damage to stationary objects, because this the example used later on 60a when the Gemara says שדה למה לי? לאתויי לחכה נירו וסכסכה אבהיו. Why does the Torah use the word שדה when describing the objects that fire damages? To teach us that aish is liable for damage it causes by licking a plowed field or scorching stones. Since that example is used to teach us that aish is liable for damaging land the Gemara quotes that example here.</i>Tosafot offers a radically different explanation of the phrase “that is not so of bor”.Rather, one can say, The Gemara is showing the contrast between aish and bor by pointing out that aish is liable for licking one’s plowed field even though it is not usual for aish to damage a plowed field or stones at all. Aish is liable even when it damages in an uncommon way. That is not so of bor, it is not liable when damaging in an unusual manner, for when the bor is less than ten tefachim deep, bor is exempt for the death of an animal, since it is unusual for a bor to cause death when it is less than ten tefachim deep. The contrast between aish and bor is not that aish can damage stationary objects and bor cannot. It is that aish is liable for the unusual and bor is not. 
  
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  That one is liable [if his ox damages an] ox [that is in the category of] disqualified consecrated [animals]; this is not so with regard to [damage caused by] a pit.As the Gemara expounds from the verse “and the carcass shall belong to him” (Sh’mos 21, 33), the verse is speaking of a carcass that belongs to him, its owner. This exclude an ox that was an unfit sacrifice, for although one may slaughter it and eat it, once it is an unslaughtered carcass the owner may not benefit from it. Thus it no longer belongs to him.We see that the Gemara understands that any thing from which one may not derive any benefit after its death is though of as if it does not belong to its owner and is excluded from being a victim of bor. Earlier we learned of the exclusion of a person as the victim of bor from the teaching, “shor” can be a victim of bor- but a person cannot be a victim of bor.And if you ask: why do I need the teaching, “shor” can be a victim of bor but not a person. That a person cannot be a victim of bor should be derived from the verse, “and the carcass shall belong to him” which indicates that the carcass must belong to its owner, as we exempt the ox that is an unfit sacrifice because it no longer belongs to its owner since it is forbidden to benefit from it. For it is also prohibited to benefit from a human corpse, as the Gemara expounds a textual similarity of the words שם that appears in the Torah at the death of Miriam (Bamidbar 20, 1), and from the שם that appears in the Torah about the decapitated calf (D’vorim 21, 4)1<i class="footnote">When a corpse is found between two cities, the city closest to the corpse must bring עגלה ערופה a calf that is decapitated as atonement for possible negligence on the part of the city elders who did not provide food and drink for the wayfarer. It is possible that because he had no food he attacked another person and was killed by his intended victim.</i> in perek Ain Maameedin (Avodoh Zoroh 29b). Just as it is prohibited to benefit from the decapitated calf, so too, it is forbidden to benefit from the body of a dead person.Now that we know that one may not benefit from a human corpse, the same source for excluding an unfit sacrifice should be used to exclude a person. Tosafot suggest a possible solution to his question. Perhaps it is not totally forbidden to benefit from a human corpse?And if you should argue that it is because benefiting from the hair of a human corpse is permitted as the Gemara says in the first perek of Arochin (7a), and that usability of the hair satisfies the condition that one must have ownership of the corpse, so too, it is permissible to benefit from the hair of an ox that is an unfit sacrifice as the Gemara says in the third perek of B’choros (25a), and even so, since the primary part, the body, is prohibited it is considered as a carcass that does not belong to him. So too, a human corpse, although the hair may be used, since the primary part, the body, is prohibited it should be considered as not belonging to its owner. It should be excluded by means of the verse “and the carcass shall belong to him”.And we can answer: that the verse “and the carcass shall belong to him” is discussing an ox as it is written in the verse “and it will fall into it an ox or a donkey, and a person cannot be excluded from that verse. Since the verse itself only stipulates this condition of ownership of the carcass in reference to an animal we may not draw the conclusion that the same condition would apply to a human.2<i class="footnote">Why is there a difference between a human and an animal? Why do we not apply the system of בנין אב and learn that just as one is required to be allowed to benefit from the animal carcass in order to be a victim of bor, so too, he must be allowed to benefit from the human corpse? Some say that there is an essential difference between an unfit sacrifice and a human corpse. The unfit sacrifice is prohibited for benefit because his owner sanctified it as a sacrifice. While it is alive one may benefit from it by slaughtering and eating it. When the animal dies unslaughtered it reverts to the previous situation of being prohibited because its owner sanctified it as a sacrifice. The fall into the bor and its subsequent death is not the reason that it is prohibited from benefit. When a person falls into a bor and dies, it is precisely the bor that caused it to be prohibited from benefit. There is no previous condition that causes the prohibition. If anything that is even more reason to make the bor owner liable, because he caused that the corpse should be forbidden. It is because of this essential difference that we cannot derive that a person cannot be a victim of bor from the fact that an unfit sacrifice cannot be a victim of bor.</i>Tosafot offers proof that the conditions required for an animal are not necessarily required for a human. The phrase “and the carcass shall belong to him” appears in the Torah in two places, once in regard to shor and once in regard to bor. The Gemara says that the one that is mentioned by shor teaches us that the carcass belongs to the victim and the shor owner need only pay the difference between the value of the ox when it was alive and when it was killed. The verse that is written about bor teaches us that the bor owner is not liable for an unfit sacrifice that is killed by his bor.I will prove this to you,3<i class="footnote">Translation follows the intent of the phrase. Literally תדע means you should know.</i> from the Gemara’s question in Haporoh (53b). The Gemara concluded that the verse dealing with shor teaches us that the carcass is the property of the victim’s owner and the verse dealing with bor teaches us that bor is not liable when its victim is an unfit sacrifice. The Gemara asks: And allow me to reverse the understanding of the two verses “and the carcass shall belong to him”, the explanation: the verse “and the carcass shall belong to him” that is written about shor, we will expound to teach us that the carcass must belong to the owner of the victim shor.The Gemara entertained this suggestion. Tosafot will analyze the ramifications of this suggestion in order to prove his point, that the requirements for a victim shor are not necessarily the same conditions as a victim person.And how could the Gemara possibly say so, that the condition of a victim shor is that the carcass must belong to its owner, for shor when killing a person must pay kofer, even though the corpse does not belong to its owner. If you insist that the conditions of an animal carcass and a human corpse are the same, that if their owner cannot benefit from them they do not qualify as victims of shor, we have an inherent contradiction to the Gemara’s suggestion that “and the carcass shall belong to him” comes to teach us that an unfit sacrifice cannot be a victim of shor because it does not belong to its owner. The fact that shor does pay kofer for killing a person even though one may not benefit from the corpse proves that the Gemara’s suggestion that one must be able to benefit from the corpse of the shor is incorrect. It is clear that shor pays for killing a person even though one may not benefit from the victim’s corpse. Rather, you are compelled4<i class="footnote">Translation follows the intent of the phrase. Literally על כרחך means against your will.</i> to conclude that we are not concerned with this difficulty, that the human corpse cannot satisfy the requirement of belonging to its owner and even so there may be a requirement for an animal carcass that the owner must be able to benefit from it. The reason is as we have explained, that the requirement that one must be allowed to benefit from the carcass refers exclusively to shor and we do not say that the conditions for a human victim are the same as the conditions of an animal victim.Although Tosafot is convinced of the truth of his answer to the original question, why do we need a teaching of shor and not a person, Tosafot now tells us that the original question can be deflected in another manner.And even without this answer, the original difficulty is not a difficulty at all, according to what we explained earlier, (Tosafot 9b ד'ה מה שאין כן בבור) that shor and not a person is needed to exclude a slave and a gentile who is owned by a Jew who fell into a bor, for that slave or gentile’s corpse is permitted for benefit and certainly satisfies the condition that the victim’s corpse belong to its owner.5<i class="footnote">There are many contradictions surrounding this ruling that a slave’s or gentile’s body is permitted for benefit. The Shulchan Aruch rules that all corpses are prohibited from benefit. Perhaps a gentile’s corps is only forbidden by Rabbinic law. The verse shor and not a person is referring to the situation before the Rabbinic law came into effect.</i> 
  
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  The last one is liable. When the Rabanan of the Braita say that the last one, who added the tenth tefach is liable, this refers also to damages and the first one who dug nine tefachim is exempt from everything, death and even damages that occur to animals that fall into the bor.Why should this be so? After all, the first digger who dug nine tefachim created a hazard that could cause damage if not death to animals that fall into the bor. Why should he not be liable for damages that his bor caused to passerby animals? His labors certainly contribute to the damage of the animals.And in perek Haporoh (51a) the Gemara explains the reason for the exemption of the first digger. For it is written (Sh’mos 21, 33), “if a man will dig” this implies that one man who digs is liable for the damage his bor causes and two people are not liable for the damage that their bor causes.This comes to make the last one liable and not the first one. For that very verse says “and the carcass shall belong to him” which shows us that the verse is defining he who dug an amount that causes death is the one who is liable. It is the last one who added the tenth tefach that made the bor into a potential killer. He alone is liable for any damage that the bor causes. Rashi there explains that it is not necessary to have a verse to teach me that the one who made the last tefach is liable for death caused to the animal. The first digger who only dug nine tefachim is not a partner in the killing that the bor does, since he only dug nine tefachim which cannot kill. It is only to teach me that he alone is liable for damages that the bor causes that a special verse is required. As far as damages are concerned there is every reason to believe that the first digger should be equally liable, because he dug a potential damager. The verse teaches me that even so the first digger is exempt and the last digger liable.
  
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  But are there no more [cases]? The Braita gave an example of what is meant by the statement “I caused some of the damage and I am liable as if I caused all the damage”. The example is a person who added one tefach to a nine tefachim bor. Logically he should be considered a partner to the damage, but he is treated as if he caused the entire damage himself and he alone must pay. The Gemara then asks: are there no other such cases that a person does part of the damage and is liable as if he did the entire damage? The Gemara proceeds to reject all the cases that were suggested. Tosafot is concerned about the question.And if you ask: granted that there are many other such cases, is the Tano like a salesman who must continuously list all his wares. One example should be sufficient to illustrate the law.And we can answer: that the reason the Gemara is searching for another illustration is because the Gemara resorted to an awkward solution, to set up the Mishna a way that it is not in accordance with Rebbe or as Rav Popo suggested that the Mishna is discussing when the bor cause the death of the animal and not when it damages the animal. And according to the suggestions now proposed by the Gemara, the Mishna could be set up to be speaking about damages as well. The Braita’s use of this awkward solution indicates that perhaps there are no other applications of this rule. That is why the Gemara asks; are there no alternatives to the example offered by the Braita?And if you ask: and let the Gemara set up the Mishna, for example when there is no foul air1<i class="footnote">The Gemara says later on 50b: אמר רב: בור שחייבה עליו תורה – להבלו ולא לחבטו Rav says the bor for which the Torah holds one liable is because it’s foul air and not because of the concussion it causes. Shmuel who disagrees with Rav there does agree that foul air can also cause death and damages. Tosafot exchange here is based on that opinion.</i> that can cause death and no foul air that can cause damages, which is when the width of the bor is greater than its depth.2<i class="footnote">See Gemara there 51b.</i> And another person came and plastered and engraved pictures on the wall, by adding the plaster he minimized the width of the bor and it is now deeper than wider and the foul air can even cause death. For in this case Rebbe agrees that the last one, who added the plaster, is liable for both death caused to the animals and for damages as Rav Popo says in perek Haporoh (later 51a). And we can answer: that this is not a case of causing partial damage, for the last one who plastered the walls and caused the foul air to gather in the bor did all the damage. The first one who dug a bor that was wider than deeper caused no damager whatsoever. The bor’s capability to cause damage and death is solely the work of the last one who added plaster and engraved pictures on the plaster. 
  
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  Such as Popo Bar Abo. The Braita is teaching us that if five people were sitting on a bench and a sixth person sat down together with them and broke the bench, he is liable. Rav Popo tells us that the Braita is speaking of a very obese person such as Popo Bar Abo. Why was it necessary for Rav Popo to mention that the sixth person was obese? What if he was not obese?Rashbam explains: that the Gemara mentioned Popo Bar Abo who was extremely obese, because for ordinary people who are not obese, even without asking permission, the bench that they sat on is as if it is loaned, to all who come even by themselves to sit on it. For an ordinary bench, is made for that purpose, to be used by any passerby who needs it and any person may sit on the chair. Since the bench is as if it is loaned to anybody who wants to use it, if it breaks it is considered as a loaned object that died because of the work that was done with it and the borrower is exempt.1<i class="footnote">The Gemara says in Bovo M”tzeeo 96a: even if the animal died because of the work that was done with it, the borrower is exempt, because he can say to the lender, I did not borrow the animal to place it under a canopy.</i> However for someone like, Popo bar Abo who is very unusual and heavier than other people, normally it is not loaned to him and when he sits on a bench and breaks it he is liable because he had no permission to sit on the bench.And according to Rashbam’s explanation we must say that the when the Gemara says “like Popo bar Abo” this description refers to all of the people sitting on the bench, not only the sixth one. This can be seen from what the Gemara soon says when analyzing the Braita. The Gemara says that the bench would have lasted two hours under the weight of the first five. When the sixth person sat down it broke sooner. They can say to him, the sixth one, and if not for you we would have sat another moment and would have arisen and nothing would have happened. This implies that if the bench had broken under the weight of the first five they would be liable. If they are normal people, why should they be liable according to Rashbam who says that a bench is loaned to normal people and when it breaks it is as if it died because of the work and they should be exempt? Of necessity we must be speaking where the first five are also obese and they may not use the bench at all. If they use it and it breaks they are liable.This understanding of the Gemara, that all of the participants in the story were obese, is only true as long as the Gemara was searching for the circumstances for which the ruling of the Braita is correct. At that point in the exchange it was necessary to say that they were all obese, but at the Gemara’s conclusion, Tosafot points out that the Braita makes perfect sense even if the first five were regular people.However, at the conclusion, when the Gemara answers that the bench broke as he was leaning on them, and only he is liable because he did not allow the others to stand up, we need not say that the description “like Popo bar Abo” refers to the others rather it refers2<i class="footnote">This translation reflects a variation of the text in Tosafot that reads דקאי instead of דחייב.</i> only to the last person.And because of this analysis of our Gemara, that an ordinary bench is loaned to the public and if it breaks while being used, the user is exempt because it is considered that it died as a result of the work for which it was used, Rashbam exempted four people who sat on a bench of a widow and broke it.And Rav Ezriel compelled them to pay. Rav Ezriel seems to hold understand our Gemara as Rabbeinu Tam explains it.We must keep in mind that Rashbam’s ruling is based primarily on the Rav Popo’s statement that the person who broke the bench was like Popo bar Abo who was extremely obese. This is what caused him to say that an ordinary person would not be liable.And Rabbeinu Tam explains that the reason the Gemara specifically mentioned Popo bar Abo, is not because only heavy people are liable for breaking a bench as Rashbam says, but rather because following the Gemara’s analysis of the Braita it says in conclusion that the reason for Popo bar Abo’s liability is because the damage that he does with his power while leaning on the group sitting on the bench is the equivalent to damage that he does with his body. And this is true only of Popo bar Abo who was a heavy person and because of his weight; he prevented the others from standing. However, all other people who are not so heavy and their leaning on those who were sitting would not prevent the sitters from rising, when the sitters do not stand up they are also negligent for not rising and they are all liable. Popo bar Abo is used as an example not because only extremely obese people are liable when breaking a bench. Anyone who breaks a bench is liable. However, it is usually only people such as Popo bar Abo who could prevent the others from standing up. According to Rabbeinu Tam’s explanation even when four ordinary people sit on a bench and break it they are liable. This is also the opinion of Rav Ezriel who compelled the four people to pay when they broke the widow’s bench.3<i class="footnote">Rav Ezriel may agree that they are allowed to sit on the bench because usually a person does not mind that passersby sit on his bench. However Rav Ezriel and Rabbeinu Tam hold that when using the bench without permission they do not legally become borrowers and the use of the bench is not governed by the rules of a borrower. Subsequently, the exemption of dying as a result of the work performed with the animal does not apply here. Although they had the right to use the bench the general rules of destroying one’s neighbor’s property are in effect. This applies to an unavoidable circumstance as well. It is only when they ask to use the bench that the rules of a borrower are in effect and there is an exemption for “dying as a result of the work”.</i>When Rav Popo asked: are there no other cases where a person does only partial damage and is liable as is he did the entire damage? He suggested that the Braita dealing with five people sitting on a bench, would satisfy the conditions of the Mishna. When he tells us that the Braita is speaking about a person such as Popo bar Abo who is capable of doing the damage by himself since he can hold the sitters in place, he is in effect telling us that this Braita is not a case of doing partial damage, because Popo bar Abo is doing the entire damage by adding his weight and holding the others in place. How then, does this Braita satisfy the conditions of the Mishna “I am responsible for part of the damage”, Popo bar Abo is responsible for all of the damage?And according to this explanation, that Popo bar Abo was used as an example because that fits the conclusion of the Gemara, we must say that Rav Popo himself came to answer the question he asked: are there no other cases that satisfy the Mishna’s condition, “I am responsible for part of the damage”? The ensuing analysis of the Braita by the Gemara is because the Gemara did not immediately realize that Rav Popo himself had supplied the reason why that Braita cannot be used as an explanation of our Mishna. 
  
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  What did he do? The text of the Braita reads, “I am responsible for a portion of the damage and I am liable for the entire damage”. The Braita itself gives one example of when this is true. The Gemara suggests three other possibilities that might work in the text of the Braita. Ultimately the Gemara rejects all of them. As the Gemara analyzes each possibility the Gemara says: if without him the damage would have occurred anyway, what did he do? This question can be understood in one of two ways:1) Therefore he should not be liable at all.2) Therefore he should not be more liable than the others and he should only pay his share, but he must pay at least his share.Rashi in ד'ה מאי קעביד says that he should not be liable at all. Since Rashi does not offer any other explanation of these words we can assume that he means that in all three cases the explanation is the same.Tosafot disagrees with Rashi as we shall now see. We will assume that the words מאי קעביד that Tosafot is quoting are the very first that appear in the Gemara that are talking about the ox owner who asked five people to guard his ox.Throughout the Gemara we must say: that what did he do more means, more than the others and each one should pay his share. And we should not say that the Gemara’s intention is and he should be entirely exempt as Rashi says. For we have learned in a Braita in perek Haporoh (later 51a) one who carves out a bor of ten tefachim and someone else came and deepened it to twenty tefachim and another one came and deepened it to thirty tefachim, all are liable even though without him, the second or third one the animal would have died.However, this is a matter that requires some deliberation, for if a man throws a small piece of wood into a great fire, should he be liable? This is basically similar to one who digs a bor of ten tefachim and somebody else came and deepened it to eleven tefachim, who would definitely not be liable.1<i class="footnote">See Tosafot later 51a ד'ה בור י' ובא אחר והשלימו לעשרים and R’ Akeevo Eiger there.</i>
  
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  They are all exempt. The Braita said that if ten people struck a victim and he died, they are all exempt. Rashi says that it is because we do not know which of the strikers delivered the death blow.And we are speaking of when the first one to strike the victim hit him with enough force to kill him. For if the there was not enough force to kill him, the Rabanan would also agree that the last one is liable as is evident in the end of Hanisrofin (Sanhedrin 78b) 
  
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  He shall complete it. The Gemara says that the word ישלימנה means that he must fill in the difference between its original and present value. One might think that this could be applied to any time the root ישלם is used. ישלם can mean to make something שלם complete, fill in what is missing. Tosafot tells us that this is not so. The verse is teaching us that the difference is to be filled in by the damager, only in the specific instance of the word ישלימנה.When the Torah writes בעל הבור ישלם we do not explain that the word ישלם means to fill in. We assume that the Torah means the simple translation, which is that one must pay for the animal his ox killed. Why is the word ישלמנה different? But the word ישלמנה implies that you pay your obligation to the victim with the animal itself. The literal translation is, pay the animal to its owner and this is impossible because the animal is already dead. Therefore, since it is impossible to carry out the literal translation of the word, we explain that the Torah meant ישלימנה he fills in the difference between the animal’s original value while it was still alive and its present value after its death. (See Artscroll note 25) 
  
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  He shall not pay. There are times when the Torah expresses itself in a very unusual manner.In such cases the Torah is telling our Rabbis to make whatever they can out of the words of the Torah. The verse under discussion is one of these verses. See Rashi in Chumash for the simplest translation. There Rashi says that the verse is discussing a paid guard who is exempt when something beyond his control happens to the object entrusted to his care. The Torah does however stipulate יביאהו עד, Rashi explains that he must verify through witnesses that it was torn apart by a wild animal and then הטרפה לא ישלם; he need not pay for the torn apart animal. The use of the phrase יביאהו עד, (lit. he shall bring him as a witness) to tell us that the paid guard must bring witnesses to prove his claim is quite awkward. Our Gemara is teaching us that there is another message here. The word עד as it is spelled in the chumash means witness, thus we have Rashi’s explanation that the Torah is telling us that the paid guard must bring a witness to verify his claim. The same word when the vowel is a patach עד can mean- until. We may isolate the last four words of the verse and read them as עד הטרפה לא ישלם the amount until the torn animal he shall not pay. This is the amount that he would have to pay if he did not have a witness. This means that if he would be liable the amount of his liability would be- until the torn animal, but the equivalent of the torn animal is never his liability.Even though this verse is written about a paid guard who is exempt from accidents that are beyond his control and that is what this verse is teaching us, that when he verifies through witnesses that the animal was torn apart by a lion or a wolf from whom he could not rescue them he is not liable, even so, since the Torah writes the words in a manner that they can be read עד הטרפה לא ישלם, until the torn-apart animal he shall not pay, we may learn that when he is liable to pay, he does not pay anything for the torn apart animal his maximum liability is- until the torn apart animal, but not for the torn apart animal itself.
  
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  And that [one] because [the damage occurred] by itself. The Gemara is showing us that we need all three verses to teach us that the carcass belongs to the victim and that the damager need only pay the difference between the value of the victim animal when it was killed and when it was alive. The Gemara said that one could not learn from the verse about a person damaging an ox because that is unusual and one cannot learn from the verse about a paid guard because the damage that he does is by being passive, not guarding the ox sufficiently. Then the Gemara said that even if we had both these verses we could still not learn that an ox that gored need not pay for the carcass, because that cannot be learned from the verse about a person damaging an ox since that is unusual while an ox goring is not unusual and it could not be learned from the verse about the paid guard because the paid guard is passive, whereas the ox that gores is actively damaging. Tosafot points out that there is a way that we could have learned from the combination of a person who damages an animal and a paid guard who does not guard the ox entrusted to him properly.See Tosafot 2a ד'ה לא הרי השור for an in-depth explanation of how laws are derived from a combination general principle.When the Gemara says here that we could not learn that an ox that gores does not pay for the carcass, from a person who damages an ox or from a paid guard, the Gemara means that we cannot derive the ox that gores from any single one of them. We cannot learn that an ox that gores need not pay for the carcass, from a person who damages an animal because a person damaging an animal is unusual and perhaps the Torah was lenient for that reason, but an ox that gores is not unusual and he may have to pay for the entire animal that he killed. It cannot be derived from a paid guard because a paid guard damages by being passive, not guarding the ox sufficiently and perhaps that is why the Torah did not require that he pay for the carcass, but an ox that gores that damages actively is perhaps required to pay for the carcass as well. However, from both of them together, as a combination general principle, we can learn from the common characteristic. When refuting that you cannot learn from a person who damages an animal because that is unusual one can counter that we see that a paid guard need also not pay for the carcass although this type of damaging is not unusual. When refuting that a paid guard cannot be the source because he is passive we can counter that a person who damages an animal is active and even so he does not have to pay for the carcass. Ultimately the leniency of not having to pay for the carcass is not dependent on being unusual or passive. We may deduce that even an ox that gores need not pay for the carcass. However, the Gemara did not trouble itself to be lengthy and methodical about this.1<i class="footnote">Tosafot seems to leave us with a very strong question, if in fact the ox that gored could be learned from a combination general principle, why do we need the third verse. See אוצר מפרשי התלמוד for a lengthy discussion of this issue. Perhaps the simplest approach is that we do not really need the third verse about an ox that gores to teach us that that ox need only pay the difference between when his victim eas alive and after he was killed, but we do need it to teach us that when one damages by shain, regel and bor that they also do not pay for the carcass. Each of these avos have their particular chumro, shain benefits from damaging, regel damages on a regular basis and bor is initially a damager. These could not have been derived from a person who damages an animal and a paid guard and that is why the third verse is necessary. When Tosafot says that the Gemara did not trouble itself to be lengthy and methodical about this, Tosafot means that the Gemara could have gone through this give and take and arrive at this conclusion.</i> 
  
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  It is only necessary for [the] diminishing [value] of the carcass. When an animal is killed the longer it takes to sell it the more value it loses. This loss is the victim’s. As we have seen the carcass belongs to him and he owns it at the price it is worth at the time it dies. Any further loss in value because of delaying the sale of the carcass is the victim’s loss. There is a Gemara later on 34a that seems to contradict what we have just learned.Even though in Hamaineeach (later 34a) the Gemara says that if an animal became weaker due to a goring, we estimate the value of the animal as it is when they stand before the court. We value the victim animal as it is worth when it comes before the court, even though it lost value since the goring. This contradicts our Gemara that says that the carcass is the victim’s as of the time of death and not as of time of standing before the court. That is because there the horn of the attacker ox is buried in the victim; he is getting progressively worse because of the initial goring.There we do not require the victim owner to sell the victim ox because it did not die as a result of the attack and he should wait until it heals before selling it, but here, in our Gemara when the animal died, the victim owner should have sold it immediately.
  
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  [He] should bring witnesses that [the animal] was mauled through circumstances beyond [his] control. The Gemara introduces a Braita that is discussing the meaning of a verse that deals with the obligations of a hired guard. The verse (Shemot 22, 12) reads as follows:אם טרף ישרף יבאהו עד השרפה לא ישלם The simple meaning of this verse is quite difficult. The words are the subject of a major dispute among the Tanoim as is mentioned in M’chilto on Parhas Mishpatim. Our Gemara deals with two of the explanations of these words.We are discussing an animal that was given to a hired guard for safekeeping. The animal was torn to death by some wild animal in a way that was beyond the control of the hired guard. If the hired guard can prove this, he is exempt. According to the first Tano in the Braita this verse is requiring that he bring witnesses to prove that he is not liable. The words יבאהו עד, indicate that he must furnish testimony that the animal was torn to death by a wild animal and he is exempt, as the verse continues: if he furnishes witnesses, השרפה לא ישלם, he need not pay for the torn-apart animal. The situation was an אונס, an unavoidable mishap.There is another approach to arriving at this very same conclusion. Issee in Bovo M’tzeeo Chapter Ho’umnim offers a different source for this ruling. The verse he quotes is in Sh’mos 22, 9: if a person will give to his neighbor a donkey or an ox or a sheep or any animal to guard and it will die or be broken or be captured, and there is no observer. The verse goes on to say that the guard must swear that his story is true and he need not pay.And Issee expounds in Chapter Ho’umnim (Bovo M’tzee’o 83a) the verse in Sh’mos 22, 9, “there is no observer”, but if there is an observer who can testify, he, the guard, brings witnesses that it was torn apart and he is exempt.1<i class="footnote">It is clear from Tosafot that both the first Tano of the Braita and Issee are teaching the same rule. See בית הלוי volume3, 35, 2, who says that there is no repetition because the two Braitas are not saying the same thing. It is clear from the Gemara in Bovo M’tzee’o 83a, that Issee is teaching us that one can exempt himself from payment by taking an oath only when the animal was attacked in an area where there usually are no observers. But if it is a place where there usually are observers, he must furnish witnesses and cannot absolve himself from payment by swearing. Our Braita may be saying something entirely different, that if one can prove by witnesses that the animal was torn to death in circumstances that were beyond his control, he is entirely exempt from all oaths that a hired guard is required to take. When a hired guard swears, he not only swears that the death of the animal was an unavoidable mishap, but that he did not attempt to steal the animal prior to the mishap and also that the animal is no longer in his possession. This ruling may be teaching us that once the guard furnishes witnesses that he was not negligent, he need not take the other two oaths. Actually this is the subject of a dispute between two approaches in Tosafot in Bovo M’tzee’o 6a בית הלוי .ד'ה שבועה שלא שלחתי בה יד concludes that our Tosafot must hold that when furnishing witnesses that the death of the animal was unavoidable, one must still take the other two oaths and the verse is not teaching us that he is entirely exempt from all oaths. If so, there is actually nothing new that is derived from this expounding of the verse. Tosafot is compelled to say that our Tano is in agreement with Issee, the difference between them is how the ruling is derived from the relevant verses.</i>This is the same ruling that the first Tano of the Braita derives from Sh’mos 22, 12. Is there perhaps a dispute between the first Tano of the Braita and Issee in Bovo M’tzee’o? Tosafot says: no, the difference between them is the way of understanding how to expound a verse. There is no substantial disagreement between the two Tanoim, they each arrive at the same conclusion from a different verse. 
  [He should] bring [the] accursed. Abo Sho’ul in our Braita offers an entirely different meaning for the words יבאהו עד. It appears that according to Abo Sho’ul the term has nothing to do with witnesses or testimony. It seems to be a reference to the carcass.Abo Sho’ul understands that the verse is speaking of when the animal was torn apart as a result of the negligence of the guard. He is liable to pay. The Torah is saying – bring the carcass to the Bais Din and we will evaluate how much the guard must pay. Our Gemara according to Rashi and Tosfdos holds that we evaluate the carcass as it was worth at the time of death, and that is applied to the payment. If it deteriorated since the time of death it is the loss of the victim.In Tosafot text the word describing the carcass is ארורה, accursed. Why? The explanation of why it is called accursed: because it died without anybody reciting a b’rochoh, upon slaughtering and eating it. Since it was killed without the benefit of kosher slaughtering no b’rochoh was recited for its slaughtering. It cannot be eaten and no b’rochoh will be recited upon eating it.And there are those whose text is עדורה - missing, as in (Y’shayoh 34, 16) even “one of them was not missing”. Rashi in Y’shayoh says the verse is referring to the animals that came to Noah’s ark. The prophet is stressing that each one that was called did in fact come, none were missing. The cow or sheep that was torn apart by a wild animal is called עדורה, because it is missing.And Rashi’s text is עדודה, which is like “he will eat עד” (B’raishis 49, 27)1<i class="footnote">The text of Rashi in Parashat Vay’chee: כל עד: לשון ביזה ושלל המתורגם עדאה. ועוד יש לו דומה בלשון עברית.</i> Rashi there says that the word עד means booty. The carcass was the intended booty of the animal that killed it. 
  
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  In the Sh’iltos of Rav Achai, the text is as follows: Shmuel said: Abo, who is Rav, said to me. And this is not like the commentary of Rashi, who said that Shmuel was relating that this was the custom of the judges, without quoting any source. Sh’iltos holds that Rav was the source of this ruling. 
  [The court] does not appraise, neither for a thief or a robber. Rashi explained: we do not evaluate the carcass and the broken utensil and return them to the owner, so that the thief will return the difference between the present and the original value, rather, he must pay the value of a complete animal and superior utensils, and the broken utensils and the carcass are his, the thief’s.Shmuel is teaching us that the rule that is in effect for a damager that the carcass or broken utensils belong to the victim and the damager only pays the difference, does not apply to a thief or a robber. The thief or robber must make full payment for the object that they stole and they keep the carcass or broken parts of utensils.And even though we rule that the superfluous word ישיב in the verse - כסף ישיב לבעליו – (Sh’mos 21, 34), comes to include items that are the value of cash are the same as cash and even bran that may be used to pay one’s obligation of damages, a thief and a robber are different, because it is written (Vayikra 5, 23) – “and he shall return the stolen object that he stole” – this superfluous phrase teaches us that the stolen object or its cash equivalent must be returned as he stole them. He stole an animal or utensils that were perfectly fine, therefore, he must return the stolen object or its cash equivalent and not bran. And so is it to be understood from Yerushalmi that says: From where do we learn that we do not evaluate a carcass or broken utensils for the benefit of a thief and for a robber and allow the thief or robber to pay only the difference between its original and present value?Rav Abo bar Mamol said: the Torah says in reference to a thief (Sh’mos 22, 2) – “if the stolen object is found in his possession, he must pay live double”. ‘Live’ teaches us – and not dead animals. This implies that even if the animal died while in the thief’s possession, he must return a live animal or it cash equivalent. He may not return the carcass and pay the difference.Yerushalmi continues: Thus far you have explained how we derive this ruling for – a thief, from where do we learn that a robber is treated the same?Ran Abo bar Mamol said: “and he shall return the stolen object that he stole”, the superfluous words ‘that he stole’ teach us that he must return it as he stole it, alive and well or its cash equivalent. And this is the reason for the difference between a thief and a robber on the one hand and a damager on the other is that a robber and a thief take possession1<i class="footnote">This concept is referred to as קניני גזילה – taking possession through stealing. This does not mean that the stolen object is legally the property of the thief, because we know that the Torah requires the thief or robber to return the object when it is intact. The possession we are referring to is a negative type of possession. If the animal dies or the object breaks, the thief or robber is liable, even though the death or breakage was the result of an unavoidable accident. It is comparable to one who owns an animal. If the animal dies, even by accident, it is the loss of the owner. He has no recourse. So too, when a thief or robber steal from an owner, the object is theirs in the sense that if anything happens to it, it is their loss.</i> of the object immediately as they remove it from the domain of its owner. It is as if the object becomes theirs and they must pay for it, when they remove it from its owner’s domain. They can free themselves from this payment if they return the object intact, but if the object is broken or the animal dead, they cannot use the shards or carcass as payment of the obligation they incurred when they removed the animal from the owner’s domain. This is comparable to purchasing an object for which one owes payment. The object breaks, through no fault of the seller. The buyer cannot use the broken object as payment for his initial purchase.However a damager is liable only for the actual damage. He never took possession of the animal or object he damaged. He simply caused it to be worth less because of the damage. He pays the difference between its original and present value, which reflects the damage he caused. And that is the reason of the one who says that a borrower also pays in full, since he is liable for unavoidable mishaps,2<i class="footnote">See note 1. The litmus test for ownership is responsibility for unavoidable mishaps. Since the borrower does have this responsibility, he is thought of as an owner, for as long as the borrowed animal or utensil is in his possession. If the animal should die or the utensil should break, he must return a complete animal or utensil. He cannot absolve himself with the carcass or shards of the broken utensil.</i> it is as if he took possession of the object or animal from the time he removed it from the owner’s domain, and he is liable for the money just as a thief and robber. 
  
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  For you make her pure from the first day. For the sake of clarity, we will speak of an instance where a lady was miscarrying on Sunday the first of the month, towards the end of the day. The miscarriage was completed somewhat later that evening which is halachically Monday, the second. The embryo had deteriorated and was in liquid form. We are not sure if most of the embryo came out on Sunday the first. This would be deemed a birth and the mother would be unclean as of Sunday the first. If, however, the majority of the material had not left the womb on Sunday the first, the birth would then have occurred on Monday the second. Rovo is now arguing that if you want to be stringent in this matter and consider the events of Sunday as a birth, thus rendering the mother unclean at that time, you are automatically going to be lenient when calculating the end of her unclean days.A lady, who gives birth to a female on Sunday the first, will be tomay till Shabbat the fourteenth. On Sunday the fifteenth she begins her days of cleanliness. During this period even if she menstruates, she remains clean. This continues till the eightieth day from the birth. Let us assume that the months were in order, which means that the first month was thirty days and the second twenty nine and so on, the eightieth day would be Wednesday the twenty first of the third month. On the next day, Thursday the twenty second, she resumes her regular cycle.However, in the case our Gemara is discussing, we are not sure of the gender of the fetus. There is a possibility that it was a male. If it was a male, her unclean days end on Shabbat the seventh. Her clean days start on Sunday the eighth and continue till the fortieth day from the birth, which is Thursday the tenth of the next month. Since there is a doubt about the sex of the fetus, she will conclude her clean days on Thursday the tenth. On Friday the eleventh she must act as if her regular cycle resumed.Tosafot explains Rovo’s reservations about saying that when a woman miscarries between the end of Sunday the first and the beginning of Monday the second, we should assume that the birth occurred on Sunday the first, because at the end of the two unclean weeks of a female, you will consider her clean as of Sunday the first.The explanation: That she will count the fourteen unclean days for the birth of a female, since she cannot be sure if the fetus was a male or a female, as of Sunday the first. These will conclude on Shabbat the fourteenth, and any menstruation1<i class="footnote"> שתראה – literally means – she will see. This the way our Sages refer to menstruation.</i> that she sees on Sunday the fifteenth will be clean. In reality though, that Sunday is actually in doubt, since the birth may have actually taken place on Monday the second. The stringency of counting the birth as of Sunday the first, will lead to a leniency of counting Sunday the fifteenth, as the first of her clean days.It is evident that all agree that Sunday the fifteenth should not be counted as the first of the clean days, because it is possible that the birth occurred on Monday the second, in which case Sunday the fifteenth is the last of her unclean days. Tosafot wonders why we do not apply the rule of a double doubt. Although we must be stringent when there is a doubt about a given circumstance, such as whether the birth was on Sunday or Monday, when there is a double doubt, as Tosafot will explain, we can be lenient.And if you ask: why should it, Sunday the fifteenth, not be a clean day? Perhaps on Sunday the first its, the fetus’, head or the majority of the fetal material emerged, and that is its birth day, which makes Sunday the fifteenth a clean day even if the fetus was a female, and even if it did not emerge, on Sunday the first, but on Monday the second, perhaps the fetus was a male, and the clean days actually already started on Monday the ninth?There is a double doubt:A) The birth may have occurred on Sunday the first and the mother is in her clean days even if the fetus was a female.B) Even if the birth occurred on Monday the second, Sunday the fifteenth may be a clean day because the fetus may have been a male, whose clean days start on Monday the ninth. Tosafot will now introduce a new clause in the rules of a double doubt. We may be lenient with a double doubt only when the conclusions we reach will not be self-contradictory, however, if the conclusions are self- contradictory, the double doubt leniency may not be employed.And one can answer: That we cannot permit Sunday the fifteenth as a clean day, because of a double doubt, because the result would then be two leniencies that contradict each other. Tosafot explains: the first leniency is Sunday the fifteenth, as explained. The second leniency will be:That if she will menstruate on the forty first day, Friday the eleventh of the second month, she should also be permitted because of a double doubt: for perhaps the majority of the fetus did not emerge on Sunday the first, but on Monday the second, and Friday the eleventh is actually the fortieth day from the birth of a male, and even if its head did emerge on Sunday the first, perhaps it was a female and Friday the eleventh is within her clean eighty days.A) Once again we have a double doubt to permit Friday the eleventh:B) Perhaps the birth occurred on Monday the second.C) Even if the birth occurred on Sunday the first, perhaps the fetus was a female and in any case Friday the eleventh is a clean day.And now we are faced with the following: initially we permitted Monday the fifteenth, because perhaps the fetus was a male, and now we will permit Friday the eleventh, because perhaps it was a female. Behold, however you wish to view the events a prohibition was transgressed, the leniency on Monday the fifteenth was because the fetus was a male and the leniency on Friday the eleventh of the next month was because the fetus was a female. One fetus could not have been both male and female.And there is a similar case that we learned in a Mishna in HaMapeles (Needoh 29a) where the Mishna says that a woman who is in doubt as to whether she was pregnant or not and then menstruated: there is a possibility that this was a regular menstruation and also the possibility of a birth of either a male or a female, the Mishna rules: she must sit for a male female and a Needoh. She must consider all three possibilities,even though for each prohibition individually, there is a double doubt.2<i class="footnote">See Tosafot נדה כט. ד'ה תשב.</i> For example, one could argue that there should be no birth tumoh in the second week, because of a double doubt.A) Perhaps there was no birth at all and her menstrual tumoh ends on Shabbat the seventh.B) Even if there was a birth, perhaps the fetus was a male and her birth tumoh ends on Shabbat the seventh.But there is a reverse side to this double doubt as well. If the woman will menstruate on the thirty-fourth and forty-first days from the birth, we can argue that she should only be tomay for one day.A) It is possible that originally there was no birth at all. The menstruation on the thirty-fourth day is her regular cycle of Needoh which makes her tomay for seven days. The menstruation on the forty- first day is the beginning of her Zovoh period which makes her Tomay for only one day.B) Even if there was a birth, it is possible that it was a female and the menstruation on the forty-first day is in her clean days.Even so the Mishna tells us that she must be consider the possibility of the birth of a male, in which case the forty-first day is the beginning of her regular cycle and she is tomay for seven days. Tosafot is telling us that the reason we cannot adopt the first leniency of not observing the second week of birth tumoh because of the possibility that the fetus was a male, is because on the forty first day there is a possibility of a leniency because the fetus may have been a female. Since these leniencies are self- contradictory, we cannot adopt them even though each case individually is a double doubt. 
  
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  For there is no partial placenta without a fetus. And if you ask: According to R’ Elozor who says that we are concerned with the possibility of a birth, because it is impossible that even a small part of the amniotic sac emerged without some part of a fetus, we must therefore consider the possibility that the head or majority of the fetus may have emerged, but if there was a possibility of part of the amniotic sac emerging without any part of the fetus, she need not be concerned that a birth occurred, because there would be a double doubt.A) Perhaps no part of the fetus emerged.B) Even if some of the fetus emerged, perhaps it was not the head or the majority.From Tosafot’ analysis of R’ Elozor, there seems to be no doubt that the rule of being lenient when there is a double doubt would be in effect. Tosafot based on a Mishna in Masechet Taharos (Chapter 6, Mishna 4) challenges this conclusion. The Mishna there is discussing some rules about doubts that occur in matters that deal with tumoh and taharoh. The rule depends on where the doubt happened, whether in a public or private domain.The Gemara in Needoh 3a says that this is derived from the laws of the sotoh, the suspected adulteress. When describing the events of the sotoh, the Torah constantly uses the expression ונטמאה and she will become tomay. Having an adulterous affair is not an issue of tumoh and taharoh; it is rather an issue of the sotoh becoming forbidden to her husband as a result of the adulterous relations. Why does the verse refer to it a tumoh? Our sages understood that the Torah is teaching us that the rules that govern doubts that occur in matters of tumoh are derived from the laws of the sotoh. The sotoh is forbidden to have relations with her husband as long as there is a suspicion that she committed adultery, so too when there is a suspicion that something may have become tomay, we are stringent. But the doubt that arises about a sotoh is always in a private area where a woman secluded herself with another man; therefore the rule of tumoh is that we are stringent only in a private area. If the doubt occurs in a public area we are lenient.Tosafot asks: What exactly is the case? If it, the birth in question happened in a public domain, even if there is only one doubt, we rule that it is tohor.And if it, the birth, happened in a private domain, even if there is a double doubt, there is also birth tumoh, for we have learned in a Mishna (Taharos Chapter 6, Mishna 4): all doubts that you can add in a private domain, even a double doubt is tomay. Tosafot holds that the assumption of the question is correct. If the issue of this doubtful birth pertains to her status in relation to the laws of tumoh and taharoh, we must follow the ruling of the Mishna in Taharos and be stringent even in the case of a double doubt. However, the question of when this birth occurred not only affects her status of tumoh and taharoh, it also effects whether she is permitted to live with her husband.And one can answer: that our Gemara is speaking about the matter of prohibiting her to her husband.1<i class="footnote">Tosafot’ conclusion that our Gemara is speaking of the prohibition of a woman to her husband and not about her status for tumoh, is in direct opposition to Rashi in ד'ה לחומרא, חוששת ועוד, who clearly says that our Gemara is speaking about the status of the birth as far as tumoh is concerned. How does Rashi deal with Tosafot question? There are two suggestions:a) Rashi holds that the ruling of the Mishna in Taharos is only for such tumoh that is external. For example a dead rodent that may have touched the woman. This is derived from a sotoh who may have been in contact with a man other than her husband. The tumoh of birth is internal, it comes from within her body and that is not derived from sotoh. The rule of such tumoh is the same as all other areas of Torah law. One doubt is forbidden; a double doubt is permitted.b) Rashi essentially is in agreement with Tosafot that this doubt should be governed by the Mishna in Taharos. Here we are speaking of when the doubt occurred in a public area. According to the Mishna, the ruling should be lenient. However Rashi holds that since as far as the prohibition to her husband we must rule stringently, because that is not a doubt of tumoh, to rule otherwise for the tumoh issue would be self-contradictory. Therefore we must rule stringently for the tumoh issue even though the doubt occurred in a public area. If however there is a double doubt, where we may rule leniently even as far as the prohibition to her husband is concerned, we can also rule leniently for matters related to tumoh.</i> That doubt is not governed by the Mishna in Taharos. It reverts to the standard rule that we are stringent for one doubt and lenient with a double doubt. 
  A placenta which was partially expelled is forbidden to be eaten. Usually if portion of a limb is extended from the womb of a cow while it is being slaughtered, the portion that was out of the womb is forbidden, but that which remained inside is permitted to be eaten. This is based on a verse in D’vorim 14, 6:וְכָל־בְּהֵמָ֞ה מַפְרֶ֣סֶת פַּרְסָ֗ה וְשֹׁסַ֤עַת שֶׁ֙סַע֙ שְׁתֵּ֣י פְרָס֔וֹת מַעֲלַ֥ת גֵּרָ֖ה בַּבְּהֵמָ֑ה אֹתָ֖הּ תֹּאכֵֽלוּ׃Our sages understood that the superfluous word which translates ‘in the animal’ is telling us, and anything that is within the animal at the time it is slaughtered, may be eaten. Therefore, the portion of a limb that was outside the animal at the time it was slaughtered is forbidden, because it is not within the animal. The portion that is inside the animal may be eaten.All this changes when the amniotic sac is in the process of emerging at the time of birth. Then the determining factor is whether a birth has occurred or not. If a birth has occurred then even the portion of the amniotic sac that has not yet emerged is considered ‘born’ and is no longer a part of the mother. When is it considered that a birth has occurred? The majority of the fetus or its head must emerge for a ‘birth’ to occur. This holds true even when the fetus has dissolved and is in a liquidly form. Usually, when the fetus has already dissolved, it is nearly impossible to determine how much of the fetus emerged and we must consider the various possibilities. The explanation of it is forbidden to be eaten is: even that portion of the fetus which remained inside the womb is forbidden, because perhaps in that small part of the amniotic sac that emerged, the dissolved head of the fetus emerged and it is as if it, the fetus, is entirely ‘born’, even the portion of the fetus and sac that remained inside the womb, and we cannot apply the verse which reads: “everything that is in the animal may be eaten”. If it is considered born, it is no longer ‘within’ the animal, even though it is presently located within the womb, in the legal sense it has already left the womb via the process of birth.The primary focus of our Gemara is to bring out that the novelty of Ulo in the name of R’ Elozor which is that whenever even a minor portion of an amniotic sac emerges, there must be some part of the fetus in that minor portion of the sac, has already been stated in this Mishna.For, if there is any possibility of a small part of the amniotic sac emerging without any fetus, we should permit the portion remaining in the womb because of a double doubt.A) perhaps no portion of the fetus emerged in the part of the womb that came out.B) Even if some portion of the fetus did emerge, perhaps it was less than the majority and did not contain the dissolved head.Since we in fact rule that the entire amniotic sac is forbidden, we are perforce discounting the possibility that no portion of the fetus came out. It is evident that the Mishna holds that when any portion of an amniotic sac emerges, some part of the fetus emerges with it. If so, what is the novelty of Ulo in the name of R’ Elozor?This is the explanation of the Gemara’s question. The Gemara will answer that there is another possible understanding of that Mishna and Ulo’s statement in the name of R’ Elozor is needed.This is bewildering! For in the course of our Gemara it is evident that R’ Elozor would permit an amniotic sac that partially emerged to be eaten if there was a double doubt to permit it. The Gemara clearly states that R’ Elozor must hold that no portion of the amniotic sac emerges without at least some of the fetus, otherwise there would be no tumoh on Sunday the first, because there would be a double doubt that a birth had not occurred. From the Gemara’s comparison to the Mishna in Chulin, it is evident that the Gemara holds that the same applies as far as the prohibition of eating the amniotic sac.The Gemara in Chulin 77b is discussing R’ Elozor’s statement about the Mishna that discusses an amniotic sac. R’ Elozor says that the ruling of the Mishna is in effect only when the amniotic sac is not attached to a fetus, but if it is attached to a fetus, we may assume that the amniotic sac is the sac of that fetus. If that fetus has not yet emerged, no ‘birth’ has occurred and it is permitted to eat the portion of the sac that remained in the womb.The Gemara supports R’ Elozor’s opinion from a Braita. The Braita is discussing birth tumoh and it says: a woman aborted a fetus resembling a domesticated animal, a wild beast or a bird, and there is an amniotic sac with the miscarriage. If the sac is attached to the fetus, we are not concerned that there may have been another (human like) fetus, and there is no birth tumoh. If the sac is not attached to the fetus, we are concerned that perhaps there was another (human like) fetus which would generate birth tumoh. She must observe two weeks of birth tumoh, because the human like fetus may have been a female. She has no clean days, because perhaps there was no human-like birth at all.Tosafot will now show us how the Gemara in Chulin 77b contradicts what we have learned in our Gemara. And at the end of B’haimoh Ham’kasheh (Chulin 77b) it is to be understood that even when there is a double doubt, R’ Elozor prohibits eating the amniotic sac. For it is about this Mishna that discusses an amniotic sac that partially emerged that R’ Elozor says:It was only taught that we may not eat an amniotic sac, when it is not attached to a fetus, but when it is attached to a fetus we are not concerned that there may have been another fetus. We may assume that the sac we see is the sac of the fetus to which it is attached and there is no other fetus. As long as that fetus did not emerge, there was no ‘birth’ and the section of the sac that was inside the womb is permissible. Our problem with an amniotic sac is when it is not attached to the fetus we see. Since they are not attached, we must consider the possibility of a second fetus that was dissolved and emerged with the visible sac, and that the dissolved head or majority of the fetus was in the section that emerged.Tosafot will now show us that when there is a sac that is unattached, there is a double doubt in favor of being lenient. And when the sac is unattached to the fetus, we are compelled to say that the likelihood that it is forbidden is only a double doubt, as the Braita there teaches:For the Braita there teaches, we must consider the possibility that perhaps the embryo of the sac that we see dissolved etc. [and perhaps the sac of the visible embryo was also dissolved.] The existence of a second human-like fetus is not certain, it is only a doubt.And if so, when the sac is not attached to the fetus, it should be permitted to eat that which remained inside the womb, because perhaps there is no other fetus than the one we see, and even if there was another dissolved fetus, perhaps the majority did not emerge. As is evident from the Braita, it is not certain that there ever was a second embryo. It is entirely possible that the unattached sac is the sac of the fetus we see. The Braita teaches us that we must consider the possibility of another dissolved embryo. If so there is a double doubt:A) Perhaps the situation is as we see it. The sac belongs to the unborn fetus and whatever is inside the womb is permissible.B) Even if there was another dissolved embryo that emerged with the unattached sac, perhaps the head or majority did not emerge with the minor portion of the sac and whatever remained inside the womb is ‘that which is within the animal’ and is permitted to be eaten when the mother is slaughtered.Ultimately, the Gemara in Chulin 77b is prohibiting eating the sac even when there is a double doubt, while our Gemara is clearly saying that if there was a double doubt it would be permitted?Tosafot will resolve this contradiction by establishing that there are two possibilities of unattached amniotic sacs that the Gemara is discussing:A) One that emerges after the fetus.B) One that emerges before the fetus. And one can answer: that the Braita there that teaches: perhaps etc. [when there is an unattached sac, the embryo of the visible sac dissolved as well as the sac of the visible embryo] and the existence of a second dissolved fetus is at the most a suspicion, is speaking of when the sac comes after the fetus. The Braita teaches us that as far as birth tumoh is concerned when there is a non-human like being, which does not generate birth tumoh, and an unattached sac that may be the sac of a dissolved human embryo, which does generate tumoh, we must be stringent and the mother must observe two weeks of birth tumoh. As far as the birth tumoh is concerned there is only one doubt: was there another dissolved human-like embryo or not? We must be stringent.And R’ Elozor who explains that the Mishna about a sac that partially emerged is speaking of when the sac was not attached to the visible fetus and even so the Mishna rules that it is forbidden to eat the sac, is speaking of when the sac emerged before the fetus, because then, when the sac is not attached to it, we assume that there definitely was another dissolved fetus in addition to the visible fetus. Since there definitely was another dissolved embryo, there is only one doubt: did the head or majority of the fetus emerge in the minor portion of the sac or not. Since there is only one doubt, we must be stringent.Tosafot offers support to this distinction between a sac that emerges before the embryo or after it.As the Gemara says (Needoh 26b) that we do not say that we attribute the sac to the child, only when discussing a sac that emerged after the child, it is only then that we say this sac is not evidence of another birth, rather, it is the sac of the previously born child, but if an unattached sac emerges before the child we assume that there definitely was another dissolved fetus. There is no doubt that there was a fetus, the only doubt is how much of that fetus emerged together with the minor portion of the sac and since there is only one doubt, we must be stringent. Tosafot now explores an entirely different approach to resolving the contradiction between our Gemara’s understanding of Ulo in the name of R’ Elozor and what appears to be a contradiction in Chulin 77b.Our Gemara later considers the possibility that a minor portion of an amniotic sac might emerge without any part of a fetus and even so it is forbidden to eat the sac because of a decree that if we are lenient when a minor part of the sac emerges people will be confused and be lenient even when the entire sac emerges. See Gemara at the very end of this page.Tosafot says that it is entirely possible that the Gemara in Chulin 77b, which seems to be saying that even when there is a double doubt that would permit eating the section of the sac that remained inside the womb, it is still forbidden to eat the remaining portion of the sac, is following the suggestion in our Gemara that even when there is a double doubt that permits eating the portion of the sac that remained inside the womb, it is forbidden because of the decree that if one is lenient when the minor portion of the sac emerges, he may also be lenient when the entire sac emerges.There are now two distinct positions in our Gemara:A) That R’ Elozor would definitely be lenient in the case of a double doubt.B) That even in the case of a double doubt R’ Elozor would be stringent because of a Rabbinic decree.Thus, the first position of our Gemara A) which holds that R’ Elozor would be lenient in the case of a double doubt is definitely in disagreement with the position of the Gemara in Chulin which holds that R’ Elozor is stringent even in the case of a double doubt. There is no contradiction between the two Gemaras, because the position of the Gemara there is in fact following the second position B) of the Gemara here. And we can also answer: that the Gemara there that prohibits eating the part of the sac that remained inside even when there is a double doubt, that is because of a decree that if you are lenient when a minor portion emerges, you may be lenient when all of the sac emerges, as the Gemara says here at the conclusion of our present discussion.
  As it is a sign of a fetus by a woman; [so] it is a sign of a fetus by an animal. The Mishna is explaining that even a minor portion of an amniotic sac is an indication of a viable fetus1<i class="footnote">When we speak of a viable fetus, we do not mean that at this point in time it is viable. As we have explained we are speaking of a dissolved fetus which is obviously not viable. What is meant is that at conception the embryo was viable and had the potential to develop into a viable fetus. Some time between conception and the emergence of the amniotic sac an event occurred that caused the then viable fetus to dissolve. Since it was once a viable fetus, its emergence in the sac is considered a ‘birth’.</i> in an animal as it is in a human. By saying that it is an indication of a birth in an animal as it is in a human, it seems that it is more apparent that it is a sign of birth in a human than it is in an animal. Why is the Mishna convinced that the emergence of some of the amniotic sac is an indication of birth in a human, more so than in an animal? And if you ask: why does the Mishna say, that the sign of birth in an animal is dependent on the sign of birth in a woman,2<i class="footnote">Tosafot Rid answers that the Mishna in HaMapeles (Needoh 24b) says that a woman who aborts an amniotic sac must be consider the possibility that it was a male or a female. This Mishna is a statement that an amniotic sac is a sign of a viable fetus in a woman. The Mishna in Chulin is then saying that just as it is a sign of a birth in a woman, so too, it is a sign of a birth in an animal. Perhaps Tosafot does not consider the Mishna in HaMapeles relevant to his question. The Mishna there is speaking about a woman who aborted an entire amniotic sac and is saying that this is a sign of a viable fetus. The Mishna in Chulin is discussing the emergence of only a minor portion and is saying that it is a sign that some portion of the fetus emerged. This detail is not the same as the Mishna in HaMapeles which is discussing an entire sac.</i> and this Mishna is speaking only of an animal?3<i class="footnote">The last phrase of this question is a bit unclear. Tosafot has a legitimate question: why is the Mishna saying that a partial amniotic sac is a sign that at least some of the fetus emerged in the birth of an animal as it is in the birth of a human. How do we know that it is a sign that some of the fetus has emerged in a human, so that we can say: just as it is a sign in a human, it is also a sign in an animal? Tosafot second phrase that the Mishna is speaking only of an animal is irrelevant to the point that he is making. Perhaps Tosafot is explaining why he does not accept Rashi’s explanation that the Mishna is saying that a human and an animal are equal. He does not read the Mishna as Tosafot does that there is a comparison between an animal and a human, but rather it is a simple statement that both are equal. Tosafot is rejecting Rashi’s explanation, because the Mishna is not discussing a human at all. The Mishna is only discussing an animal. Why mention a human? If so, the Mishna must be comparing an animal to a human and Tosafot is legitimately asking: what is the basis for this comparison? How do we know that it is more likely that a minor portion of a sac is a sign of a birth for a human than for an animal?</i> And one can answer: it is because it is plainer to him, the Tano, that for a woman an amniotic sac it is a sign of birth, than for an animal. For there is an embryo that is a sign of a fetus in a woman and not for an animal,4<i class="footnote">Tosafot seems to be saying that even though there is no source for the ruling that a partially emerged amniotic sac in a woman contains some of the fetus, other than this Mishna, the Mishna can refer to this as if it is a known fact, because it is more likely that it is a sign of a birth for a woman than for an animal. See Tosafot B’choros 19b, ד'ה ובגסה שליא where Tosafot says that the Mishna is to be understood as follows: despite the fact that an embryo is considered a sign of a viable fetus in a human and not in an animal, even so the partial emergence of an amniotic sac is a sign of emergence of some of the fetus in both a human and an animal.</i> as we learned in a Mishna in Halokai’ach (B’choros 19b):A sign of a fetus in an animal is an amniotic sac, and for a woman an embryo and an amniotic sac. There is a greater incidence of signs of what was a viable fetus in a woman than there is for an animal. It is therefore plainer to the Mishna that even a minor portion of an amniotic sac is a sign that at least some of the fetus emerged when the subject is human as compared to when the subject is an animal. 
  
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  A decree [on] part of the afterbirth [due to] the whole. The Gemara is saying that if we only had the Mishna in Chulin, we might conclude that a minor portion of an amniotic sac can emerge without any part of a fetus. However, the Rabonon prohibited eating the portion of the sac that remained inside, because one who would see that it is permitted, might mistakenly conclude that the permissible ruling is a statement that there is no fetus at all in the sac and might permit eating the sac when all of it emerged, based on this erroneous belief that a sac can emerge with no fetus at all.Tosafot disagrees with the notion that one could possibly err and confuse a ruling about the emergence of a minor portion of the sac with the emergence of an entire sac, as he will now explain.The statement that one might confuse the emergence of the entire sac with the emergence of part of the sac, is imprecise, because how could we possibly err and permit eating the sac when all of it emerged, because we permitted what remained inside when a minor portion of the sac emerged, because even when a minor portion emerges, the minor portion that did emerge is forbidden by Torah law, because that minor portion is not ‘within the animal’, when the mother was slaughtered. It would seem that the fact that we are prohibiting the eating of that minor portion of the sac is a statement that whatever does emerge is prohibited. If so, how can one possibly conclude that by permitting that which remained inside the womb, we might err and believe that when the entire sac emerged it is also permitted to be eaten. Our ruling, prohibiting the portion of the sac that emerged is a clear statement that at the very least, whatever emerges is forbidden.But perhaps the Gemara here is saying that we should be concerned that one might confuse the emergence of a minor part with the emergence of the entire sac even though there isn't any compelling logical basis for such a decree, and we should always be stringent whenever any part of an animal emerges during birth?Tosafot will now prove that this is not so. This can be seen from the general ruling that when a minor portion of a limb emerges during birth, only that minor portion is forbidden, not the entire limb. See the Mishna and Gemara at the very beginning of Chulin 68a, where it is clear that when a limb of an animal emerges during the slaughtering of a cow, only that limb is forbidden the remainder is permitted because it is ‘within the animal’ during the process of slaughtering.And we do not say that it is forbidden to eat even that which remained inside the animal, because of a decree that it might be confused with the portion that is outside. Just as we do not decree that what remained inside should be forbidden because it can be confused with the portion that exited the womb, so too, we do not decree that when the minor portion of the sac departs from the womb, the entire sac should be forbidden, because we may be lenient when the entire sac left the womb.It is certainly more logical to prohibit the portion of a limb that remained inside, because of confusion with the portion that already exited the womb, than to prohibit that which remained inside the womb because of possible confusion with when the entire sac exited the womb. Even so, we do not prohibit the section of a limb that remained inside the womb. We certainly should not prohibit that which remained inside when a minor portion of the sac exited the womb because of possible confusion with when the entire sac exits the womb.1<i class="footnote">See אוצר התוספות note 1951.</i>And furthermore, if we decree that it is forbidden to eat that which remained inside when only a minor portion emerged, because we will be confused and permit eating the sac when all of the sac emerged, for a woman who aborts a part of the sac on one day and the remainder on the next we should also decree that she is tomay from the first day even though it is possible that no part of the fetus emerged at all. We should say that even though it is possible that no part of the fetus emerged on the first day, we decree that one must be concerned that Sunday the first may be a tomay day, because if we are lenient and rule that it is not a tomay day, when the entire sac emerges, we will also believe that there was no birth and that she is not tomay, which is of course erroneous.Tosafot must offer another explanation of the Gemara:Rather, it can be said that the Gemara is saying that eating that which remained inside the mother when only a minor portion of the sac emerged is forbidden, because it will lead to confusion when a majority of the sac emerged, but not when the entire sac emerged. For if when a minor portion of the sac emerges you will permit eating that portion, which is inside because of the verse ‘all that is in the animal’ is permitted with the slaughtering of the mother, even though it is reasonable to be concerned that the head might have emerged, in that minor portion of the amniotic sac, and there actually was a ‘birth’ which would render even the inside portion forbidden. Our ruling that the inside portion is permitted may be construed as a statement that the rule of a ‘birth’ is not in effect insofar as the prohibition of eating the fetus, and that the sole determining factor is whether the material of the dissolved fetus is in the womb or outside of it. Therefore he will come to permit the minor portion that remained inside when the majority emerged, because of the same reason. When only a minor portion remained inside, it is in fact prohibited because the emergence of the majority is a ‘birth’ and it is legally considered as if the entire sac left the womb, even though some of the sac is actually inside.And they will not know that when a minor portion of the sac emerges there is a double doubt that permits us to eat the portion of the sac that remained inside.A) It is possible that none of the dissolved fetus emerged in the minor portion of the sac.B) Even if some of the dissolved fetus emerged together with the minor portion of the sac, perhaps the majority or the head did not emerge and the portion that remained inside is not ‘born’ and therefore permissible.If a ‘birth’ actually occurred, even the portion that remained inside is prohibited. Our ruling that when a minor portion of the sac emerged, the material that remained inside is permissible is based on a double doubt, but that is not obvious to all. It may be construed as a ruling that the concept of a ‘birth’ does not apply to the material of the fetus and that the sole determining factor is whether the material is within the womb or outside of it.However, in regard to the emergence of a minor portion of an amniotic sac in a woman it is not reasonable to decree that the emergence of a minor portion of a sac should generate birth tumoh, so that they will not come to err, and not observe birth tumoh when the majority of the sac emerges, for there is no cause for an error, to compare the emergence of a majority of the sac to a minor portion of the sac.2<i class="footnote">In order to clarify Tosafot distinction between the birth of a cow and how it affects the material in its womb and the birth of a woman, we must understand that insofar as an animal is concerned, there are two dynamics to consider:A) The material that is outside of the mother at the time she is slaughtered is forbidden, but the material that is inside of the mother is permitted.B) Additionally, when a ‘birth’ has occurred, because the head or the majority of the fetus has emerged even the portion that is inside the womb is prohibited because the fetus is considered born and it is as if it has entirely emerged from the womb, even though some of it is actually within the womb.This second rule is not obvious to all. Since the ruling involved effects the permissibility of eating the material of the fetus, one may mistakenly believe that the dynamics of a ‘birth’ does not affect this ruling. The only determining factor is where the material is located. This error is reinforced when we rule that the material in the womb is permissible when a minor portion of the sac departs the womb. In reality there is a possibility that a ‘birth’ occurred and even so we are lenient. We seem to be saying that we are not concerned about a ‘birth’. Actually we are concerned about a ‘birth’, but we rule that a ‘birth’ did not happen because of the rule of a double doubt. Not all people are familiar with this reality and there is room for error. We must therefore decree that even when only a minor portion of the sac emerges, all is forbidden, even the portion that remained inside.As far as a ‘birth’ in a woman that generates ‘birth tumoh’ is concerned, there is only one factor that needs to be considered: did a ‘birth’ take place or not? It is fairly obvious to all that there is a difference whether a minor or major portion of the sac exited the womb or not. Anyone observing the ruling that birth tumoh does not start on Sunday the first will realize that it is because a minor portion of the sac is not considered a ‘birth’. There is no other factor to be considered and thus there is no room for error.</i> That there is a difference between when a minority and a majority of the sac emerges is fairly obvious and being lenient when the minority emerges would not automatically lead one to err and believe that when the majority emerges it is also not considered a ‘birth’.However, for an animal they will err and say that which is inside is never as if it is born, as long as it does not emerge. When ruling that the portion of the fetus that emerged is forbidden we are giving that emergence some legal significance and at the same time ruling that the remaining inside portion is permissible, we may be misleading some into thinking that the determining factor of what is permitted or forbidden is whether it remained inside or exited the womb. Some may believe that this is true for both cases; when a minor or a major portion of the sac emerged.A second reason why we are lenient as far as a human birth is concerned: Alternatively, for a woman we do not decree that she should count birth tumoh from the first day, Sunday the first, because it is a stringency that may lead to a leniency, because perhaps they will not count from the second day, Monday the second, to give her days of tumoh until and including Sunday the fifteenth.A third reason why we are lenient as far as a human birth is concerned: Alternatively, for a woman we do not decree that she should be tomay on Sunday the first, because we do not seek to increase tumoh as the Gemara says in Masechet Beitzah (7a).3<i class="footnote">The Gemara in Masechet Beitzah is discussing the point at which in the development of eggs, they are still considered as flesh of the chicken and may not be eaten with milk. The Gemara argues that as long as it is considered flesh in regard to the prohibition of milk and meat, it should generate the tumoh of one who eats the carcass of a tohor bird. The Gemara rejects this comparison by saying that even though by Rabbinical law, at that stage of its development it may still be considered flesh as far as the prohibition of eating meat with milk, it may not be considered flesh to generate tumoh, because we do not seek to increase food tumoh. See Artscroll Beitzah 7a, note 20.</i>However, earlier (11a תוספות ד'ה דאין מקצת שליא) we explained that throughout this Gemara when discussing the status of a woman, we are not speaking about the mother generating birth tumoh, rather that she should be forbidden to have relations with her husband. If so, the last answer Tosafot mentioned that we do not institute a decree for the woman, because we do not seek to increase tumoh is irrelevant, because this Gemara is not discussing her status for tumoh at all.And Rashi explained: that for a woman who is in the process of aborting a fetus late Sunday afternoon and a minor part of the amniotic sac has emerged, it is not feasible to decree that she should be tomay if only a minor part of the amniotic sac emerged, because ruling that she is not tomay as of Sunday the first, will not lead one to err and believe that even if the entire sac emerged, there is no birth tumoh, since they see that when she gives birth on Monday the second, we do declare her to be tomay, there is therefore no room to err and believe that if an entire sac emerges she is also not tomay, because we will in fact rule in a few moments when the entire sac emerges on Sunday night that there is birth tumoh. Whereas when this question arises in the case of a cow that is in the process of being slaughtered, there will be no completion of the birth process, because the animal was slaughtered. There is no positive ruling that dispels the misconception created by the ruling that whatever remained inside the animal is permitted, because that is where the story ends in the case of an animal slaughtered in middle of the birth process.And this is difficult according to Tosafot explanation that we are concerned only about one confusing the emergence of a minority of the amniotic sac with the emergence of the majority of the sac, because that which we see that she is declared tomay on Monday the second does not prove that when a majority emerges it is considered a birth, because they will say that the reason she is tomay as of Monday the second, is because the entire sac emerged. According to Tosafot explanation there never was a question that one would confuse the lenient ruling when a minority of the sac emerges with when the entire sac emerges. The Gemara is concerned only that one may confuse the lenient ruling when a minority emerges with when a majority of the sac emerges. The possibility of that error is not dispelled when they rule on Monday the second, after the entire sac emerges that there is birth tumoh. 
  
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  A firstborn that was killed within thirty days. There are many steps in this Tosafot. To simplify matters, we will present an outline of all the steps and then indicate exactly where all the steps are.A) Tosafot presents Rashi’s opinion.B) Tosafot deduces that Rashi holds that when it is known that a child is viable, he may be redeemed within thirty days.C) Tosafot presents a contradiction to this conclusion.D) Tosafot alerts us to what might be the source of Rashi’s logic and shows that this is incorrect.E) Tosafot presents a second Gemara that seems to contradict Rashi’s explanation.F) Tosafot presents a third argument against Rashi.G) Tosafot presents a fourth argument against Rashi.H) Tosafot offers Rabbeinu Tam’s explanation.Usually, throughout Shas when the word טריפה is used, it refers to an injury or an ailment that causes death within twelve months. Here Rashi does not translate the word נטרף as usual.A)Rashi explains that the word נטרף used in our Gemara means: it, the firstborn, was killed, as opposed to the usual meaning of the word נטרף, which means that it developed a sickness or injury that causes its death within twelve months. Ulo is teaching us that if the firstborn was killed within the first month of its life, it need not be redeemed.And when the firstborn died of its own, there is no need for the verse to inform us that we do not redeem him, because it is written – (Bamidbor 18, 16) and those [who are to be] redeemed: from the age of a month you shall redeem. The firstborn who never reached the age of one month need not be redeemed.But if he is killed, it is necessary to inform us that he need not be redeemed, and that we do not say: if he had not been killed, he would have most probably lived and he was not a miscarriage and we should be obligated to redeem him. It seems that the verse is teaching us that we need not consider the possibility that he was a viable child if he was killed before he reached thirty days, but this is true only when there is some element of doubt in our mind about the viability of the firstborn.From the fact that Rashi says that when the firstborn dies within thirty days, there is no need for Ulo in the name of R’ Elozor to teach us from a second verse that he does not need to be redeemed, that can be understood from the verse which places the date of redemption at thirty days, but it is necessary for R’ Elozor to teach us that if the firstborn was killed within thirty days he need not be redeemed, it seems that the issue involved is how certain are we that he was a viable child.The firstborn who died was not a viable child and it is understood from the verse that there is no redemption. The firstborn, who was killed, may have been a viable child and therefore we need a second verse to teach us that there is no redemption. It follows that if we are certain that he was a viable child, because he was carried to term, even if he died before thirty days, he must be redeemed. B)It is apparent to some extent1<i class="footnote">See אוצר התוספות note 1962 for an explanation of why Tosafot says it is apparent to some extent, which implies that it is not ironclad that Rashi must take the position that Tosafot ascribes to him.</i> that if it is known to us about him, that he completed his months of gestation, i.e he was carried to term, and he lived beyond birth and was then killed, the father would be obligated to redeem him, even if he died before reaching the age of thirty days. It is only when we are not certain that he was a viable child and not a miscarriage that we say he need not be redeemed if he did not reach the age of thirty days, but if he definitely was a viable child there would be an obligation to redeem him even if he dies before thirty days.What emerges is that according to Rashi’s understanding the time prescribed in the Torah for redemption, thirty days, is only to be certain that the child is viable. If he does not survive thirty days, he was most probably a miscarriage and if he does survive thirty days, we know that he is a viable child. If we are certain that he is viable, then the obligation to redeem him is in effect even before thirty days. Tosafot has difficulties with this conclusion. C)And this is difficult! For in Chapter Yesh B’chor (B’choros 49a) the Gemara says in regard to one who redeems his son within thirty days, and the money was no longer intact after the time,2<i class="footnote">This quotation is a bit misleading. It is evident from the Gemara there that the firstborn survived till after the thirty day period, but the money was no longer intact when the thirty day period arrived.</i> his son is not redeemed, because after thirty days, which is the time of redemption the Kohain did not have the five s’loim in his possession. If the money was still intact the child would be redeemed, because even though the money was given to the Kohain before the time, the giving of the money is not the determining factor, it is the fact that the Kohain has the money when the child reaches the age of thirty days that is crucial. But when the money is no longer intact, the child is not redeemed.And why according to Rashi is the child not redeemed? But it is now known to us retroactively, that he was not a miscarriage, since he survived for thirty days. We should say that the redemption within the thirty day period was effective because the child was in fact viable and even though the money is no longer intact, that should make no difference, because the redemption was effective at the time the money was given within thirty days.Rather, it is certainly a decree of the Torah from the verse “and those [who are to be] redeemed: from the age of a month you shall redeem”, which teaches us that even if it is known to us that it completed its months of gestation, i.e. he was carried to term, he needs to be thirty days old in order to be redeemed and even if he is a viable child, no redemption can be effective before thirty days.Tosafot’ approach is not without its difficulties as Tosafot now tells us. The fact is that thirty days is the time that a child must survive in order for us to be convinced that he is a viable child and this is derived from the law that we must wait thirty days for redemption of the firstborn. On the surface it seems that Rashi is correct, that the thirty day waiting period is needed only to substantiate that the child is viable and not a miscarriage. It follows that if we are certain that he is viable, we can redeem him even before thirty days. D)And even though it is from this verse that we derive that any human who survives thirty days is not a miscarriage, which implies that the thirty days is needed only to be certain that the child is not a miscarriage, but if we know that he is viable he can be redeemed even before thirty days as it appears from Rashi.Tosafot will now show us that this conclusion is incorrect, because there is a similar ruling that is derived from the laws of the validity of an animal as a sacrifice eight days after its birth. There too we say that since the Torah allows us to sacrifice the animal eight days after its birth, it is proof that an animal must live eight days to prove its viability. Even so, when we know that the animal is definitely viable, it may not be offered before eight days.So too, we expound (there) that any animal that survives eight days is not a miscarriage, because it is written “from the eighth day and onward, it may offered as a sacrifice”. The Gemara uses this verse as proof that if an animal survives eight days, it is viable,and even so, when we definitely know that it completed its months of gestation i.e. it was carried to term, it may not be offered as a sacrifice because it is premature, during the first eight days of its life. We see that despite the fact that survival for eight days is the indicator of viability for an animal, even so, when we know that the animal definitely is viable before eight days, it still cannot be offered as a sacrifice.This is evident in the first chapter of Rosh HaShonoh (6b) where the Gemara says in reference to a firstborn animal, that it must be eaten within the first year of his life: From when do we count a year for him? One says, from the time that he is eligible to be offered as a sacrifice, i.e. eight days, and one says, from the time he is born. The Gemara there explains:And there is no dispute between these two opinions, this one is speaking of an unblemished animal that needs to be offered as a sacrifice and cannot be offered before eight days, therefore the year starts after eight days, and this one is speaking of a blemished animal that does not need to be offered as a sacrifice and can be eaten immediately, therefore the year starts immediately at its birth. The Gemara there asks: how can the blemished animal be eaten before eight days, it may be a miscarriage?And the Gemara there interprets the statement that the blemished animal can be eaten immediately from birth as speaking of when it is known to us that it completed its months of gestation and is definitely not a miscarriage, and even so the unblemished firstborn which must also have completed its months of gestation3<i class="footnote">When the Gemara says: this one was unblemished and this one was blemished, we have to assume that all other aspects of these animals are equal. If the blemished animal we are discussing was carried to term, the unblemished animal must also have been carried to term.</i> is not suitable to be offered until it is eight days old. It is clear that even though we derive from this verse that survival for eight days is the time needed to substantiate that an animal is not a miscarriage, even so an animal may not be offered as a sacrifice before eight days even when we know that it is viable. So too, that a human who survives thirty days is not a miscarriage is derived from the verse that requires thirty days for redemption and even so a child born at term cannot be redeemed before thirty days.4<i class="footnote">Tosafot does not explain the logic of his position that we derive from this verse that if a human survive thirty days it is a viable child, and even so, when we know that a child is viable before thirty days he may not be redeemed. It would seem that Rashi is correct, if thirty days is needed to prove that the child is viable, then if we know that it is viable before thirty days, we should redeem it before thirty days. See אוצר התוספות 1968, who cites two different opinions among the Rishonim.a) Rashba holds that we can see from the fact that the Torah mandates thirty days for redemption that if a child survives thirty days it is viable, because the Torah would not require us to redeem a child that may not be viable. On the other hand, the rule that even a viable child may not be redeemed before thirty days is a decree of the Torah, it is beyond logic. Tosafot is merely arguing that this is in fact the case and is not attempting to offer an explanation. (See Maharam for a similar explanation).b) Ritvo attempts to add some logic to this ruling that even a child known to be viable may not be redeemed before thirty days. That is because the Torah wanted the Mitzvos to be standardized for all Jews. The Torah did not want to give us a mitzvah where some would start fulfilling it before thirty days and others who were not certain whether the child was carried to term would begin fulfilling the mitzvah after thirty days. For the sake of uniformity, the Torah established one standard time for fulfilling this mitzvah for all – thirty days from the birth of the child.</i> E) Tosafot introduces another Gemara to prove that Rashi’s explanation of נטרף as killed is incorrect. And furthermore, that in the end of HaKomaitz Rabbah (M’nochos 37a) the Gemara obligates a father whose firstborn had two heads5<i class="footnote">The oddity of this situation is discussed in the Gemara there.</i> to give ten s’loim to the Kohain.And the Gemara challenges that ruling from a firstborn that was rendered t’raifoh who is exempt from the mitzvah of redemption, And if as Rashi says that the word נטרף means that it was killed, how is that case of the firstborn with two heads comparable to this case of the firstborn who was killed within thirty days? But if the word נטרף is translated as usual, that the firstborn became a t’raifoh, it is injured or sick and will die within a year, it is comparable to a firstborn with two heads, which must also die but is presently alive.F) A third difficulty with Rashi’s explanation: And furthermore, that he, R’ Elozor, should not have said נטרף he became t’raifoh, but נהרג-he was killed, which is the usual expression to describe a person who was killed. G) A fourth difficulty with Rashi’s explanation: And furthermore, the Gemara concludes that this ruling is derived from the word אך-but in the verse “but he must certainly redeem”, whereas the words פדה תפדה would include all situations of redemption, the word “but” qualifies the scope of the ruling and excludes a firstborn that was killed. But since he was killed within thirty days this should be derived from the verse “and those [who are to be] redeemed: from the age of a month etc.?6<i class="footnote">At the very beginning of the Tosafot, he quoted Rashi who deals with this question by saying that we might think there is an obligation to redeem a firstborn who was killed, because he may have been viable, as opposed to a firstborn who died a natural death, who was most probably not viable. That is why an additional verse is needed to teach us that even when a child is killed within thirty days no redemption is necessary. It seems that Tosafot holds that ultimately a child who was killed could also be derived from the verse: and those [who are to be] redeemed: from the age of thirty days, you shall redeem. The rationale of Tosafot argument is that since there is even some doubt about the viability of the child, we would rule that we cannot extract money from the father to pay when there is a doubt, even if in the majority of births the child is viable, we cannot extract money based on a majority. For a lengthy discussion of this issue, see אוצר מפרשי התלמוד note 36, and אוצר התוספות note 1971.</i>H)And Rabbeinu Tam explains: the נטרף means, that it became a t’raifoh. It was injured or developed an illness that will not let it live more than twelve months. This cannot be derived from the verse “from the age of thirty days, you shall redeem”, because a t’raifoh does survive for more than thirty days. It can be excluded only from an additional verse – “but you must surely redeem”.And now that we are dealing with a firstborn that became a t’raifoh, the Gemara in HaKomaitz (37a) correctly compares it to a firstborn that has two heads which is also a t’raifoh. Tosafot explanation avoids all of the four problems with Rashi’s explanation:A) Tosafot explanation is that Ulo in the name of R’ Elozor is not speaking about a child that did not survive for thirty days. It did survive but it became a t’raifoh and will not survive for another twelve months. Tosafot understanding that a firstborn cannot be redeemed in the first month of its life even if it is viable is totally unrelated to the issue of a firstborn who became a t’raifoh.B) The comparison of our Gemara to the case of a two-headed firstborn is perfectly accurate since they are both t’raifoh.C) The Gemara does not describe our case as נהרג because he was not killed; he became a t’raifoh as is described.D) This ruling cannot be derived from the verse ו פדויו מבן חדשתפדה, because the baby did survive for thirty days. He is even alive now. He will not survive another year. A second verse is needed to teach us that there is no obligation to redeem him. 
  
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  A large animal.The primary issue is not here in Masechet Bovo Kamo, and in the first chapter of Kidushin (25b), I discussed this at length. See Tosafot Kidushin 25b, ד'ה בהמה גסה. 
  
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   We do not assess what their sons and daughters are wearing. Because they are embarrassed to bring them, their wives and children, to the Bais Din, in order to evaluate their clothing and they forgive each other from any differences in the value of the wives and children’s clothing.And Rav Alfas ruled that this applies specifically to weekday clothing,1<i class="footnote">It seems that the reason we do not evaluate the wives and children’s clothing is because it is embarrassing to bring them to Bais Din, but the Shabbat clothing can be brought without the children having to come to the Bais Din and that is why they are evaluated. It appears that it was customary to have only one set of clothing for weekdays and one set for Shabbat.</i> but Shabbat clothing we do evaluate to determine that all the brothers are receiving a fair share of the estate, and so is it in Yerushalmi. 
  
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  By the oldest brother. Rav Popo is saying that is to the advantage of all the heirs that the eldest brother, who is conducting the business affairs of the estate should dress well so that he will have charisma with the people with whom he conducts business and ‘his words will be heard’ i.e. he will make a favorable impression on them. It is Tosafot opinion that the brothers do not have to go along with this thinking if they feel that they are not gaining enough from the eldest brother’s fashionable clothing.If they protest that they are not happy with his spending for expensive clothing, it is their right to do so, and he may not continue to spend money from the estate for his superior clothing,1<i class="footnote">Not all agree with Tosafot that the brothers may protest. Generally when Reuven is spending Shimon’s money, even if he is empowered by a Rabbinical statute, Shimon can protest by saying that I do not wish to benefit from the statute of the Sages who permitted you to use my money to dress well because it is for my benefit. I do not feel that it is to my benefit and therefore you have no right to use my money to dress as you do. Tosafot seems to be following this general rule. However, the dissidents hold that the money spent on finer clothing is not exclusively for the benefit of the brothers, it is also for the benefit of the eldest brother as well. They may have the right to risk the potential loss that might result because the eldest brother is not well dressed as far as their own share is concerned, but they do not have the right to risk the potential loss of the share of the eldest brother. Thus, he can continue to dress in finer clothing despite their protests. Shulchon Oruch Choshen Mishpot 286, 2, rules like Tosafot, that the brothers may object.</i> but as long as they did not protest, most probably they are happy with this arrangement, so that ‘his words will be heard’. He needs finer clothing to be a charismatic person whose opinions in business matters is valued, as the Gemara says in Haneezokin (Gittin 52b) in regard to Amrom the dyer. The Gemara there relates that he was appointed as the administrator of the estate of young orphans. Their relatives complained that he was dressing very well with funds from the estate of the heirs. Rav Nachmon ruled that he is permitted to do so, because his superior clothing works in favor of the orphans, because people will listen to him on account of his fine clothing. 
  
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  It is not necessary [to state concerning] an unpaid watchman who transferred, etc. Ulo says in the name of R’ Elozor: if a guard, Reuven, gives the item he is guarding to another guard, Shimon, he is exempt. The Gemara continues: it need not be said that if an unpaid guard gave the item to a paid guard, that he is exempt, because he actually improved the level of security by giving the deposited item to a paid guard, but even if a paid guard gave the item to an unpaid guard, he is also exempt.Tosafot will analyze the obligations of the unpaid guard who gave the item to a paid guard. We must keep in mind that an unpaid guard has a lower level of responsibility than a paid guard. The unpaid guard does not pay if the item was stolen or lost. He only pays if he was negligent. The paid guard must pay even if the item is lost or stolen. He is exempt only in the case of an unavoidable mishap.The explanation of an unpaid guard that deposited the item with a paid guard, the unpaid guard is exempt, means that if the item was stolen or lost, for which an unpaid guard is not liable, even in this case where the unpaid guard, Reuven, deposited the item with another guard, Shimon, Reuven is exempt.We are faced here with an interesting situation. Reuven is exempt, because an unpaid guard need not pay if an item is lost or stolen. However, Shimon was a paid guard, and he is liable for theft and loss. To whom will Shimon pay? To Reuven, who hired him as a paid guard or to the original owner with whom he has no contractual obligations at all? This issue is discussed in a Mishna in Bovo M’tzee’o 35b, which Tosafot will soon quote.The Mishna there is discussing a lessee, Levi, who rented a cow. He is liable for theft and loss, but not for accidents. Subsequently he lent the cow to Y’hudoh. Y’hudoh, as a borrower is liable for accidents. The cow died as the result of an accident. The first Tano of the Mishna holds that Y’hudoh pays to Levi, because he borrowed it from Levi. His contract and obligations are to Levi. Levi in turn is a lessee and does not owe the original owner anything. R’ Yosee disagrees. He argues: how can Levi do business and turn a profit with the leased cow that does not belong to him? Tosafot holds that the same applies in our case. Reuven the unpaid guard is doing business and turning a profit with an animal that does not belong to him.However, the paid guard who is liable for theft and loss, when he pays as he is obligated to do, he pays to the owner, as the Gemara says in HaMafkid (Bovo M’tzee’o 36b), that the halochoh follows R’ Yosee who says that this one the lessee in the case the Mishna discusses in Bovo M’tzee’o 35a, cannot do business and turn a profit with his associates, the owner’s, cow. So too in the case of our Gemara, the unpaid guard who deposited the item with a paid guard cannot profit from the owner’s item and payment must be made to the owner not to the unpaid guard.We now understand that when Tosafot initially said that the unpaid guard is exempt for theft or loss, he means that even in this situation where the paid guard will have to pay the owner, if for some reason the paid guard cannot pay, the unpaid guard is still exempt, because his contract with the owner contains no liability for theft or loss. The payment for loss or theft in this situation may be thought of as a bonus for the owner. If he can collect it from the hired guard he may do so, but this does not increase the liability of the unpaid guard in any way.
  For [he] thereby increased its protection. R’ Elozor is saying that when an unpaid guard deposited the item he is guarding with a paid guard, he has increased the level of security. In the reverse situation the Gemara says that a paid guard who deposited the object he is guarding with an unpaid guard has decreased the level of security.There are two ways that we might understand the phrase “he increased his guarding”:A) The level of liability is increased when an unpaid guard deposits with a paid guard. The unpaid guard is not liable for loss and theft, whereas the paid guard is liable.B) The actual degree of guarding the deposited item. One guard is more committed to his job than the other.Tosafot holds that the fundamental nature of the increase and decrease of security must be the same for both cases under discussion. It is true that when an unpaid guard deposits the object with a paid guard, there is an increase in the liability, because the paid guard will be liable for loss and theft, whereas the unpaid guard was not liable for these. However, in the reverse situation when a paid guard deposited the object with an unpaid guard, we cannot say that there was a similar decrease in liability, because the paid guard will definitely be liable for loss and theft.We should not explain that the increase of security is that if the object will be stolen, it will be returned to the owner because the paid guard is liable for loss and theft, whereas the unpaid guard was not, because the corresponding decrease of security cannot be explained that way, because the paid guard who deposited with an unpaid guard will definitely be liable for loss and theft, hence there is no decrease in the level of liability.Rather, the increase and decrease of security is that a paid guard is more committed to guard the object than an unpaid guard. The increase and decrease is in the actual level of security, not in the level of liability. 
  
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  Your oath is credible to me. If one guard deposited an animal with a second guard, and the animal dies, the owner can demand payment from the first guard. Even though the second guard offers to swear that the death was the result of an unavoidable mishap, the owner can argue that I deposited my animal with you, because I trusted you and I would accept your oath. I do not believe the second guard, even if he swears.According to this reason, if the second guard is more trustworthy than the first,1<i class="footnote">On a practical level, it is difficult to understand how one can determine that one person is more trustworthy than another. Even if most people agree that Reuven is more trustworthy than Shimon, any individual can argue that he does not want to accept Reuven’s oath because he believes that Shimon is more trustworthy than Reuven. Who can tell anybody that he must accept Reuven’s oath? See Shulchon Oruch Choshen Mishpot 291, 26, who in fact rules that even if all people generally agree that the second guard is more trustworthy than the first, the owner need not accept his oath. See G’ro there [45] who says that Shulchon Oruch’s ruling is in disagreement with our Tosafot. Some suggest that Tosafot may be referring to another case that Shulchon Oruch discusses there: when the owner is known to deposit with the second guard constantly. He cannot argue that he does not want to accept his oath, since he is known to use him as a guard. See אוצר התוספות note 1999, who questions whether he could claim that he does not want his deposit to be in another person’s possession, when it is known that he uses that guard on a constant basis. It may be that although the owner uses the second guard on a constant basis, he may claim that he does not want this particular deposit to be in the second guard’s possession, but he cannot claim that he refuses to accept his oath.</i> it appears that the first guard is exempt, because the second guard can swear that the object was not lost as a result of negligence.However, in HaMafkid (36b) there is another reason given to explain why a guard who deposited with a second guard is liable, and that is because the owner can say: it is not my wish that my deposit should be in the hands of another person. The choice of a guard is a personal decision that the owner must be comfortable with, it is not within the realm of the first guard to make that decision for the owner.And these two reasons are not the same, as is evident in the Gemara there in HaMafkid. The Gemara there discusses a situation where the first guard is privy to the information about how the animal was destroyed. He can take an oath and his word must be accepted. The owner cannot claim that I refuse to believe your oath, because he did deposit the object with the first guard. According to the reason that one does not wish that his deposit be in the hands of another person, the very act of the first guard depositing the object with a second guard is a violation of their agreement and he is liable for that and cannot be exempt with an oath.And we should not ask Ulo here who holds that a guard who deposited with a second guard is exempt, how can he argue with that logic, that the depositor does not wish to have his deposit in another’s possession?But it is a Mishna in Chapter Kol HaGet (Gittin 29a), where the Mishna is discussing a person who made an agent to deliver a divorce. If the agent is unable to deliver the divorce document he may make a second agent to deliver the divorce document. However, if he, the husband, said to the agent, take from her to deliver to me a certain object, he should not send it, the divorce document, with another agent, because the owners can say: it is not my wish that my deposit, the object that he asked the agent to bring back, be in the possession of another person. Since in this instance there is a return agency involved, we assume that the husband does not want the first agent to appoint a second agent. We see that the Mishna uses this reason, it is not my desire that my deposit be in the possession of another, to restrain the first agent from appointing a second agent. How can Ulo argue with this and say that a guard may appoint a second guard in his place? And one can answer: that Mishna there is discussing what is initially preferable, and that is that a deposit should not be placed in the possession of a second guard, but we do not find in that Mishna that one would be liable post facto if he did so.
  
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  Even from the cloak on his shoulders. Rav Nachmon was trying to determine what Ulo in the name of R’ Elozor meant when he said that one can collect a debt from the debtor’s slaves. Ulo said that he was speaking of when the collection was made from the debtor, not when the slaves had already been sold and the collection was made from the sold assets of the debtor. Rav Nachmon asked: when the creditor is collecting from the debtor he may even take ‘the shirt off his back’ and most certainly the debtor’s slaves. What is the novelty of R’ Elozor’s ruling?Tosafot questions the exact meaning of ‘the shirt off his back’. If taken literally, this means that when one is in debt, the creditor need not leave him with anything. He can take the very last item the debtor has as payment. According to Tosafot’ understanding, the Gemara in Bovo M’tzee’o 114a rules otherwise. In order to reconcile the two Gemaras, Tosafot must qualify the ruling of our Gemara so that it does not contradict Bovo M’tzee’o 114a. Tosafot therefore says that when our Gemara rules that a creditor may take ‘the shirt off his back’, it is only if he, the creditor, has two shirts, for if he only has one shirt, the Gemara in HaM’kabail (Bovo M’tzee’o 114a) says that we leave over for a creditor his minimal needs and we do not take the last shirt off his back. Our Gemara’s statement that we take the shirt off his back must be speaking of when the debtor has more than one shirt.Tosafot is still searching for a better understanding of our Gemara. The words ‘the shirt off his back’ are not an accurate description of when the debtor has two shirts.Alternatively, we are speaking of when the debtor has a garment that is worth one hundred moneh,1<i class="footnote">To put this number in perspective, two moneh are what is needed for minimal survival for an adult per annum. One hundred moneh is fifty times that amount. Conservatively, if minimal survival would cost $10,000, per year, this shirt would be worth a half million dollars.</i> an astronomical sum. Since he certainly does not need such an expensive garment, we dress him in a garment that is suitable for him and we literally take the garment he is wearing off his back and use it as payment towards his debt.According to this solution the words ‘the shirt off his back’ can be taken literally. This ruling, that we take his expensive garment to pay his debt and replace it with a regular garment is not universally accepted. The Gemara in Bovo M’tzee’o 113b cites a Braita that does in fact issue this ruling, but the Gemara quotes two dissidents, R’ Akeevo and R’ Yishmo’ail.And this second solution is not in accordance with R’ Akeevo who says in Perek HaM’kabail (Bovo M’tzee’o 113a) in reference to the very expensive garment, all Jews are suitable for that garment. Even though one is an ordinary person, not a prince or high government official, an expensive garment is suitable for him. As the Gemara there explains it is R’ Akeevo’s opinion that – all Jews are inherently princely children and are entitled to wear the finest garments. We cannot require that one wear a garment that is below his station. If in fact he is in the habit of wearing very expensive clothes, we cannot require of him to wear plain clothing. That would be personally demeaning.Tosafot has attempted two solutions to reconcile the seemingly contradictory Gemaras. Rabbeinu Tam holds that they are in fact contradictory and he rules in favor of our Gemara.And Rabbeinu Tam rules that the halochoh is that we do not leave over even the minimal needs of a debtor. His ruling is based on the simple understanding of our Gemara, that we take the shirt off his back. This is a statement that we need not be concerned with even the minimal needs of a debtor. See Tosafot Bovo M’tzee’o 114a ד'ה מהו, where Tosafot explains that Rabbeinu Tam sees the Gemara there as being in doubt about this question and that the Gemara here is deciding in favor of the position that we do not leave a debtor with even his minimal needs.2<i class="footnote">Shulchon Oruch Choshen Mishpot 97, 23, rules that we do leave a debtor with his minimal needs. He also rules in accordance with the second solution of Tosafot, that if the debtor wears very expensive clothing, we confiscate them to satisfy the debt and replace them with ordinary clothing.</i> 
  
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  For instance, he set [the slave] aside [as a] designated repayment. In order to understand this Tosafot properly a short review of the Gemara is needed.A) Ulo says in the name of R’ Elozor: the halochoh is that a creditor can collect his debt from slaves.B) Rav Nachmon asked: did R’ Elozor says this in reference to collecting the debt from the heirs of the debtor, when the debtor died?C) Ulo answered: He said it in reference to collecting from the debtor himself.D) Rav Nachmon asked: What is the novelty in this ruling? One may collect the cloak off the back of the debtor himself.E) Ulo answers: R’ Elozor was speaking of when the slave was designated as an ‘apotiki’ – there was a specific agreement that the debt would be paid from this slave. This follows Rovo who said: One who designates his slave as an apotiki and then sells it, the creditor can collect the slave from the purchaser.At this point there is a major divergence between the Commentators how we must interpret the Gemara. It is clear that if the debtor sells the slave, the creditor can collect it from the purchaser. But what about collecting the slave from the heirs of the debtor when he passes away? We have two options:A) That although Rovo speaks about the debtor selling the slave, the same is true when the debtor dies and ownership passes to his heirs.B) Since the Gemara speaks specifically about a debtor who sold the apotiki slave, the ruling is in effect only for a sold slave, but if the debtor dies, the slave cannot be collected from the debtor’s heirs.The debate centers on a careful study of the text of our Gemara. There are those who say that when Ulo answered in step E) that R’ Elozor was speaking about a slave that was designated as an apotiki, he did not use the word אלא, which would indicate that he is retracting from the previous conclusion of the Gemara (step C). The Gemara had previously stated that R’ Elozor was not speaking of collecting from the heirs. By not retracting from this position, he is saying that we definitely cannot collect from the heirs under any circumstance, but we can collect from a purchaser if the slave was an apotiki.In the course of our analysis of Tosafot we will discuss how the opposing opinion deals with the lack of the word אלא in our text. According to this opinion the Gemara is ultimately saying that even when the debt or dies the apotiki slave can be collected from his heirs just as it may be collected from the purchaser of the apotiki slave.We must also understand why one would hold that an apotiki slave can be collected from a purchaser but not from an heir (position A). On the surface it seems that heirs should have a greater liability to pay their father’s debts than a purchaser. Why do some rule that an apotiki slave can be collected from a purchaser but not from an heir?Tosafot here accepts position B) that one can collect an apotiki slave from heirs just as he can be collected from a purchaser. Tosafot does struggle to show us how this can be explained in the text of the Gemara. 
  
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  Go and return [them]. The Gemara in Sanhedrin 33a discusses two errors that a judge might possibly make:A) Erring in a matter that is discussed in a Mishna. This is a blatant error and the judge can undo his decision. The money is returned from the winner to the loser and the judge need not pay anything.B) Erring in judgment. This is a more subtle error. The judge cannot retract the decision, but he must repay the losing party from his own pocket.Rav Nachman said: Go and retract your decision, even though it is not clear in any Mishna that slaves are considered movable objects and not realm property. Tosafot explains:Rav Nachman considered them, all the judges that disagreed with him, as erring in a matter discussed in a Mishna, even though it is not specifically clear from any Mishna that slaves are not to be considered as real property, Rav Nachman held that they can retract their decision and do not have to pay. His opinion is based on a Braita as the Gemara says. The Gemara in Sanhedrin adds that an error in a matter taught in a Braita and even one taught by the amoraim is also the same as erring in a Mishna. It is only when the error is one of judgment as the Gemara explains there that the judge cannot retract his decision and must pay from his pocket.
  
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  I know a Braita. It is true that this Braita does say that slaves are considered as movable, but this Braita is not the only Mishna or Braita that discusses this issue.Even though that in many places we find that slaves are treated like real property, for example in the matter of price fraud,1<i class="footnote">See Mishna Bava Metzia 56a: These are the items that do not have price fraud… land etc.</i> and swearing,2<i class="footnote">See Mishna Shovuos 42b: And these are the items for which one does not swear… land etc.</i> where it is clear in those Mishnayos that slaves are treated as land. For example: the laws of price fraud are not in effect when buying and selling land. So too, when buying and selling slaves the laws of price fraud are not in effect. One does not swear about a claim that involves land. So too, he does not swear about a claim that involves slaves.Why is Rav Nachman so certain that Avimi’s Braita is to be followed as halochoh and not the Mishnayos that deal with swearing and price fraud?R’I says: that here in our Gemara’s discussion of whether slaves are treated as real property or as movable objects, we are speaking only about what pertains to Rabbinical law,3<i class="footnote">Why is the status of slaves different for Rabbinical law than it is for Torah law? See Shulchon Oruch C.M. 363, where the Shach, 2, raises this question on Tosafot position that there is a difference between Rabbinical and Torah law. The Shach there goes on to show that there are many Rishonim who disagree with Tosafot on this issue. They hold that Rav Nachman’s ruling is that slaves are not considered as land only insofar as collection of debts because they can be easily moved from one place to another and they offer very little security for a debt. So too, as far as the legal transfer of movable objects together with land, the movable characteristic of slaves does not allow them to be transferred through this method. See Gemara later. Some answer that Tosafot holds that even though we generally hold that Rabbinical laws follow the same guidelines as Torah law, that is only when the law is based on logic. However the rule that slaves have the status of land is not logical, they certainly have the characteristics of movable objects. It is a decree of the Torah that they are considered as land. The laws instituted by the Rabonon are all based on logic and therefore the guidelines must also be logical. Therefore for Rabbinical issues slaves are considered as movable objects. See אוצר התוספות note 2025 for further information on this matter.</i> and to collect from heirs and from purchasers, whereas the laws governing price fraud and swearing are Torah law.And he holds that an automatic lien on a debtor’s property is not Torah law and one can collect only by Rabbinical ordinance.Rav Nachman compares the collection of debts from purchasers and heirs to the statutes of Pruzbul, which allows one to collect debts after the Sabbatical year, by Rabbinic injunction and the transfer of property called קנין אגב which is affecting a transfer of ownership of the movable together with the transfer of ownership of the real property. And for the issue of Pruzbul,4<i class="footnote">See Gittin 36a. Hilel instituted the law of Pruzbul to circumvent the rule that one could not collect debts after the sh’meetoh year. If one is owed money he can write a Pruzbul and be allowed to collect his debts even after the sh’meetoh year has passed. This is obviously a Rabbinic law, because its purpose is to circumvent the prohibition against collecting debts after sh’meetoh. For the exact information as to how this is accomplished see the Gemara and commentators in Gittin</i> which is clearly a Rabbinic law, and the transfer of movable objects ‘together’5<i class="footnote">This is a system of transferring possession of movable objects even though the particular method of transferring ownership is not effective for movable objects. By performing the necessary legal transfer for the land one can take possession of the movable objects ‘together’ with the land.</i> with land, which are also of Rabbinical origin.And even though this law is derived from a verse about the fortified cities, which says that the movable objects were transferred ‘together’ with the land, if so, how can we say that it is Rabbinic law? That verse is merely offered as support of the Rabbinic ruling, but it is not actually the source of the law.Tosafot must now examine whether this hypothesis, that our Gemara is speaking only about the status of slaves in regard to Rabbinical laws is consistent with all of the cases discussed here in our Gemara.Towards the end of this page the Gemara introduces a contradiction of Braitas. One Braita says that when one takes possession of land he also takes possession of slaves. Another Braita says that he cannot take possession of the slaves together with the land. The Gemara reconciles this contradiction by saying the Braita that says one does take possession of the slaves is speaking of when the slaves are on the property, the Braita that says he does not take possession of the slaves is speaking of when the slaves are not on the property.Tosafot understands that the effective legal transfer in this case is because the slaves are considered as land and when one takes possession of one parcel of land he can take possession of many tracts of land in distant places. The Gemara asks: why should the same not apply to slaves? Since they are considered as land the transfer of one piece of land should be effective for any other parcel of land and in this case the slaves.And later when the Gemara says: according to that version that Rav Eeko son of Rav Amee said that slaves are similar to land, why is it necessary that they be standing in it, i.e. the parcel of land that is being transferred? Since the slaves are considered land, the transfer for one parcel of land should be effective for many parcels even though they are not attached. The Gemara is now working with the notion that the legal transfer for the slaves is effective because they are considered as land; they are included in the legal transfer of the actual land. This is a transfer by Torah law.However, according to Tosafot, since the legal transfer for the slaves that are sold together with land is one of Torah law, the slaves should be treated as land according to all opinions. It is only in regard to Rabbinical law that one opinion holds that the slaves are considered movable objects.Even according to the one who says that slaves are like movable objects, the Gemara could have asked this question: why must the slaves be on the property when the legal transfer is performed? For they are considered as movable objects only as far as matters that are Rabbinical law and the transfer of the slaves together with land is a Torah law, where all agree that slaves are considered as land. However, this is not a strong question, because anyhow the Gemara asks an excellent question.Tosafot will now deal with another Gemara that discusses whether slaves are similar to land or to movable objects:And that which the Gemara seeks to deduce in Chapter HaMochair Es HaBayis (Bava Batra 68a) whether slaves are like movable objects or like land from the Mishna that rules that if one sells a city all structures are included in the sale, but if the seller said “the city and all which is in it”, and there were slaves and animals in the city they are all sold.And the Gemara also cites this in Chapter Me Shemais (Ibid. 150a) in regard to one who says: “my movable objects are given to Plonee”. Did the giver include his slaves in this gift or not?Those two Gemaras are not relevant to the issue we are discussing here, because there it is dependent on people’s use of language.There are two issues to consider when we are attempting to determine what is included in a sale:A) What did the seller or giver, intend to sell or give? This is determined by how people express themselves. It is not dependent on the strict legality of what is considered as land and what is considered as movable. That is the issue discussed in Bava Batra 68a.B) What can the method of transfer accomplish? Can it legally transfer slaves or not? This depends on whether slaves are legally considered as slaves or as movable objects. This is the issue discussed in our Gemara. 
  A Pruzbul is effective where there is land. The debtor must have land for the Pruzbul to be effective. Tosafot in Gittin 37a says that usually loans are made to people that own land so that the loan will be secure. A loan that is made to a person who does not own land is unusual and the Rabonon did not institute their laws for unusual situations.We write a pruzbul only for a loan that is secured by something that cannot be destroyed; anything that can be destroyed is not adequate security for a loan.There seems to be a contradiction:And even though we do write a pruzbul upon a punctured flower pot (Gittin 37a), which could be destroyed, which seems to contradict the reason Tosafot offered for this ruling, however, since a punctured flower pot is considered land because of its connection to the earth via the hole, the Rabonon did not distinguish between one type of land and another.1<i class="footnote">It is not clear why Tosafot asks this question and answers it here. There in Masechet Gittin 37a, where the Gemara is discussing the rules of pruzbul, it is logical that Tosafot raises the question. However here in our Gemara, it does not seem to make any difference. The Gemara is showing that a loan secured by slaves is not eligible for a pruzbul, which proves that as far as Rabbinical law is concerned slaves are not considered land. Why bring up the issue of a punctured flower pot? There are two approaches to this question:A) There are those who say that Tosafot is asking as follows: perhaps slaves are like land as far as other Rabbinical law is concerned, but not in regard to pruzbul, because for pruzbul it is required that a loan be secured by indestructible assets and slaves are destructible. Tosafot is answering: that we see that one may write a pruzbul for a loan that is secured by a punctured flower pot even though it is also destructible. It is obvious that if something is inherently considered land, even though it is destructible, if it was used to secure a loan, one may write a pruzbul for that loan. The same should be true of slaves. If they are considered as land even though they are destructible, when they are used as security for a loan, one should be allowed to write a pruzbul for that loan.B) Others say almost the exact opposite. Tosafot is saying that a punctured flower pot is an exception to the rule that the security of the loan must be indestructible, because it is actually land, even though it can be destroyed. Slaves however, are not actually land and they therefore are not an exception to the rule that the security must be indestructible. In fact there is no proof from the rule of not writing a pruzbul for loans secured by slaves that slaves are not land. Even if they were treated as land for other Rabbinical laws they could not be treated as land for pruzbul, where indestructible land is needed. The proof of Rav Nachman’s position that slaves are not considered land is from the second ruling of Avimi’s Braita that one can take possession of movable objects when making a kinyon on land, but not when making a kinyon for slaves.</i>
  
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  [He] sold him slaves and land. There are two possible kinyonim that might be effective in making a legal transfer when one makes the kinyon in the courtyard and expects to take possession of the slaves with that very same kinyon:A) Kinyon of courtyard i.e. I take possession of things that are in my ‘חצר-courtyard’ by virtue of the fact that they are in my courtyard.B) The kinyon of taking possession of movable objects ‘אגב-together’ with land. I make the necessary kinyon for the land and the movable objects become mine ‘together’ with the land.Tosafot will prove that the Braita quoted in the Gemara must be speaking about the kinyon of ‘אגב-together’ and not about the kinyon of ‘חצר-courtyard’.One of the rules of the kinyon of ‘courtyard’ is that the items must be secure within the courtyard under the control of the owner of the courtyard who is seeking to take possession. If for example a deer is running through my courtyard and I cannot reach that deer, my courtyard will not take possession of the deer for me. It is only when the deer has a broken leg and I can reach the deer before it leaves my property that the kinyon of ‘courtyard’ is effective.This Braita that differentiates between when the kinyon is made for land and movable objects and when it is made for land and slaves is speaking about the kinyon of ‘אגב-together’, for if the kinyon the Braita is discussing is that the movable objects or the slaves are in the buyer’s ‘חצר-courtyard’, for as soon as the land becomes his, the slaves or movable objects are on his property,why does the Braita differentiate when one takes possession of the land, between when there are slaves or movable objects on the property? The halochoh should be the same for both. If the kinyon of ‘חצר-courtyard’ is effective for movable objects, it should also be effective for slaves.For if the objects in the courtyard are secure because of his being there, in either case, when acquiring the slaves or the movable objects, the kinyon is effective, and if the objects in the courtyard are not secure because of his being there, in either case the kinyon is not effective. There is no inherent difference between slaves and other movable objects as far as kinyon ‘חצר-courtyard’ is concerned. Why would the Braita differentiate between the two? If the kinyon we are discussing is ‘אגב-together’ then it stands to reason that there is a difference between slaves and movable objects. One may take possession of movable objects ‘together’ with land, but not of slaves that are like land together with land. See next Tosafot.
  
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  We require [it to be] similar to fortified cities. The reason that when one makes a proper kinyon for the slaves he does not become the owner of the movable objects is because the kinyon of ‘אגב-together’ was taught only for such land that is similar to the ‘fortified cities in Judea’ that are not movable. Slaves, even though they are similar to land for many issues of Torah law, are not similar to the ‘fortified cities’, that are the source of the kinyon of ‘אגב-together’. But what about taking possession of slaves when one makes the kinyon on land?And when one takes possession of land, the kinyon is not effective for slaves, because one cannot take possession of land ‘אגב-together’ with land. The verse from which this kinyon is derived speaks only of taking possession of movable objects together with land and the kinyon is limited to what we can derive from its source. As the Gemara will soon discuss, a kinyon that is effective for one parcel of land is effective for many parcels of land even though they are not contiguous. We need to know why the same theory cannot be applied to one who makes a kinyon on land and wants to take possession of slaves at the same time.
  
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  The halakha is [that] where [a slave is] bound up. The Gemara cited two Braitas that contradict each other.A) The first Braita says that if one took possession of a slave he does not acquire movable objects together with the slave.B) The second Braita says that one does acquire ownership of the movable objects when taking possession of a slave.The Gemara offers two approaches to reconcile the contradiction. In the second approach Rav Eeko son of Rav Amee says: that both Braitas agree that slaves are like movable objects and the kinyon of ‘אגב-together’ is not effectual. However, the Braita that says one does acquire the movable objects is speaking about objects that are on the person of the slave, such as his clothing. He acquires those because the slave’s body is the equivalent of a ‘חצר-courtyard’. The Gemara asks: the slave is a ‘walking courtyard’ and is not capable of acquiring. Ultimately the Gemara says that we are speaking of a slave who is tied and cannot move. His body is considered a non-moving courtyard and is capable of acquiring movable objects.Tosafot will show that there is another condition that must be met for the kinyon to be effective. That is that the object that one is acquiring must be secure in the courtyard, under the control of the one who is acquiring the object. The Gemara in Masechet Gittin 78a discusses this requirement.And we must also say that it, the Braita that says one does acquire the movable objects on the slave, is speaking of a slave who is sleeping.There are two factors needed to make this kinyon work:Because, that the slave is tied, accomplishes that he is not a ‘walking courtyard’, and that he is sleeping accomplishes that the object being acquired is secure, under his control,1<i class="footnote">לדעתו – literally means according to his mind or will. In the context that this phrase is used in the Gemara, it refers to the owner of the courtyard being in control of the item to be acquired because it is in his courtyard.</i> as the Gemara says in Chapter HaZoraik (78a), in regard to one who wrote a divorce document for his wife and he placed it into the hand of her slave. If the slave is sleeping and she, the wife, is guarding it, the document, this is a divorce, she has taken possession of the document via the slave who is her ‘courtyard’ and she is legally divorced even though the document did not arrive in her hand. If the slave is awake, it is not a divorce, because the slave is a ‘courtyard’ that is secured, but not under her control. A slave who is awake is in control of himself and the divorce document.The Gemara there in Gittin is not satisfied with her acquiring the divorce document because the slave is sleeping.And the Gemara asks: when the slave is asleep, why is the divorce effective; the slave is a ‘walking courtyard’?The Gemara suggests:And if you should say: that when the slave is asleep, it is different because the slave cannot move while he is sleeping. But Rovo said: in any case where if the slave is walking, one could not acquire via the slave because he is a walking courtyard, even if he is standing or sitting one cannot acquire via the slave because he is still considered a walking courtyard, since he has the ability to walk away even if he is presently standing or sitting. The Gemara equates sleeping to standing and sitting and holds that when a slave is sleeping he is also considered a ‘walking courtyard’. The Gemara there answers: and the halochoh is that the kinyon is effective when the slave is tied and he cannot move when he wants to.The Gemara there added the requirement that the slave be tied to the previously mentioned condition that he be sleeping.We see that even though the Gemara ultimately interprets the Gemara as speaking of when the slave is tied, even so when he is awake, it is not a divorce. Two conditions must be met. The slave must be tied and sleeping. Tosafot suggests an alternate approach to understanding that Gemara so that we will not have to add the requirement that the slave is sleeping to our Gemara and then rejects this suggestion.And one should not explain that when the Gemara in Gittin says: the halochoh is so that the divorce is effective when the slave is tied, it means to say: when the slave is tied he is not considered as a ‘walking courtyard’, and he is not similar to a standing or sitting slave. And since tying the slave is effective, being asleep which is similar to being tied is also effective and the divorce is valid if the slave is sleeping even though he is not tied.For if it were so, that Rovo is speaking of when the slave is sleeping but not tied, why does Rovo say that if he, the slave, is awake it is not a valid divorce, because the slave is a courtyard that is secured, but not under her control? He should deduce that the divorce is not valid because the slave is a walking courtyard2<i class="footnote">Why is the reason that it is a walking courtyard any better than the reason that it is not secured under her control? Some say that a ‘walking courtyard’ is not a ‘courtyard’ at all, whereas that the object must be under her control is merely a detail needed to make the kinyon effective that is generic for all methods of acquiring, because the person acquiring needs to exhibit control over the object he is about to acquire. See Tosafot Gittin 21a, ד"ה והלכתא בכפות, who says that sometimes even when the slave is awake, he may be secured under her control, but would still be a ‘walking courtyard’.</i> when awake. Rovo did not need to introduce the reason that it was not under her control.And so did Rashi explain in Chapter HaZoraik (Gittin 78a): ד"ה והלכתא בכפות, and Rashi says there: and it is in that case, when the slave is tied, that Rovo said that when he is awake the divorce is invalid. We see that Rashi holds that being tied is insufficient to make the divorce valid, the slave must also be asleep.And so too did Halochos G’dolos rule, that it is required that the slave be tied and asleep.
  
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  When [the slaves] are standing within. Earlier the Gemara quoted a Braita that said one who takes possession of land does not acquire slaves ‘אגב-together’ with land. That very same Braita says that one does acquire movable objects in this manner. We will refer to this Braita as the first Braita. The Gemara cited a second Braita that says one can acquire slaves together with land. There seems to be a contradiction. The Gemara reconciles the contradiction by saying that the second Braita is speaking of when the slaves were on the land that was acquired. By extension we must say that the first Braita is speaking of when the slaves were not on the property at the time of the kinyon and that is why they were not acquired together with the property. That first Braita also says that one acquires movable objects when taking possession of the land. Just as the slaves in that first Braita were not on the property, those movable objects must also not be on the property that is being acquired.And that first Braita which says that one does not acquire slaves together with land, must be speaking when the slaves are not standing on it, the land.What does this teach us about the movable objects that are acquired together with land?And even so that first Braita teaches us that one does acquire movable objects, even though they too, perforce, are not on the land that is being acquired, because it is not required that movable objects that do not propel themselves be upon the land that is being acquired for the kinyon of ‘אגב-together’ to be effective.Tosafot is proving that it is evident within the first Braita that the movable objects need not be upon the land. A bit later the Gemara introduces this idea by saying “it is known to us” that the movable objects need not be upon the land. This introduction implies that this information is known to us from elsewhere.And later when the Gemara asks: “but it is known to us” that it is not required that the movable objects be upon the land, which implies that this information is from an outside source, the Gemara could have deduced this from the very Braita that we are discussing.
  
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  Why do I [need the slaves to be] standing within? Earlier the Gemara quoted a Braita that said one who takes possession of land does not acquire slaves ‘אגב-together’ with land. That very same Braita says that one does acquire movable objects in this manner. We will refer to this Braita as the first Braita. The Gemara cited a second Braita that says one can acquire slaves together with land. There seems to be a contradiction. The Gemara reconciles the contradiction by saying that the second Braita is speaking of when the slaves were on the land that was acquired. By extension we must say that the first Braita is speaking of when the slaves were not on the property at the time of the kinyon and that is why they were not acquired together with the property. That first Braita also says that one acquires movable objects when taking possession of the land. Just as the slaves in that first Braita were not on the property, those movable objects must also not be on the property that is being acquired.And that first Braita which says that one does not acquire slaves together with land, must be speaking when the slaves are not standing on it, the land.What does this teach us about the movable objects that are acquired together with land?And even so that first Braita teaches us that one does acquire movable objects, even though they too, perforce, are not on the land that is being acquired, because it is not required that movable objects that do not propel themselves be upon the land that is being acquired for the kinyon of ‘אגב-together’ to be effective.Tosafot is proving that it is evident within the first Braita that the movable objects need not be upon the land. A bit later the Gemara introduces this idea by saying “it is known to us” that the movable objects need not be upon the land. This introduction implies that this information is known to us from elsewhere.And later when the Gemara asks: “but it is known to us” that it is not required that the movable objects be upon the land, which implies that this information is from an outside source, the Gemara could have deduced this from the very Braita that we are discussing. Why do I [need the slaves to be] standing within? See introduction to the previous Tosafot.The Gemara is presently analyzing the second Braita that says that when one takes possession of land he also simultaneously acquires the slaves. The Gemara said that this second Braita is speaking of when the slaves are in the courtyard, whereas the first Braita is speaking of when they are not in the courtyard and that is why one who takes possession of the courtyard does not acquire the slaves.The Gemara now asks: we can understand that if you hold that slaves are considered as movable objects, there is a difference whether the slaves are in the courtyard or not, (the Gemara will soon challenge this assumption), but according to the version of Rav Eeko son of Rav Amee who holds that slaves are considered as land, why would the slaves need to be in the courtyard?The Gemara’s question presumes that the Gemara understands exactly how one could acquire slaves that are considered as land together with land and that this system is effective even if the slaves are not on the property at the time of the kinyon. What is this kinyon? Tosafot will explore the possibilities and tell us why some of them were rejected.At first glance the possible kinyonim are:A) The kinyon of ‘חצר-courtyard’.B) The kinyon of ‘אגב-together’.C) A kinyon that is operative for the land, which is effective for both land and slaves simultaneously, that is not one of the above.Tosafot will now analyze all the possibilities.The explanation of our Gemara that assumes the kinyon for the land and the slaves does not require that the slaves be on the land is as follows: we are compelled to say that it is not because of ‘חצר-courtyard’ that one acquires the slaves together with the land, because ordinarily slaves are not secured under the control of the owner of the courtyard,1<i class="footnote">Tosafot here is saying that we should not understand that the Braita is speaking about the kinyon of ‘חצר-courtyard’ because it is highly unlikely that a slave could be acquired through this kinyon. Earlier in Tosafot ד"ה מכר לו עבדים וקרקעות, Tosafot says that as far as the kinyon of ‘חצר-courtyard’ is concerned there is no difference between slaves and other movable objects. Maharsho says that Tosafot seems to be contradicting himself, because here Tosafot is saying that there is a difference between slaves and ordinary movable objects – the fact that for slaves it is highly unlikely that the kinyon of ‘חצר-courtyard’ should be effective. The Acharonim say that the seeming contradiction in Tosafot can be understood as follows: Earlier Tosafot says that there is no inherent difference in the legality of acquiring a slave through kinyon ‘חצר-courtyard’ or other movable objects. We cannot say that a Braita is differentiating between them because of the practical differences when inherently they are the same. Here Tosafot is saying that if the Braita does not inform us that it is speaking of acquiring slaves through ‘חצר-courtyard’, we should not attempt to explain the Braita that way since it is highly impractical. See מנחת שלמה by Rav Shlomo Zalman Auerbach זצ"ל.</i> and even when the owner is standing on the side of his field, the slave is not considered secured under the control of the owner of the field, because the slave is comparable to a deer running normally, about which the Mishna says in Bava Metzia 11a that the owner of the field cannot take possession of the deer via the kinyon of ‘חצר-courtyard’ because the deer is not under his control. So too, a slave who has independent intelligence is not under the control of the owner of the land who is attempting to acquire him.Perhaps the kinyon the Braita is discussing is ‘אגב-together’?And because of ‘אגב-together’ one can also not acquire slaves that are considered as land together with land, because land is not acquired ‘אגב-together’ with other land. The verse in Divrai Hayomim 2, 21, 3, that teaches us of the kinyon of ‘אגב-together’ speaks specifically of movable objects together with land, not of land together with land.Tosafot offers an example of this ruling that land cannot be acquired together with land through the process of ‘אגב-together’:And even if one said: acquire the land that is adjacent to the boundary,2<i class="footnote">Tosafot is attempting to paint a picture of one parcel of land being physically on top of another, where technically we could apply kinyon ‘אגב-together’. The exact scenario that Tosafot is describing is unclear. See רש"ש and מהר"ם שיף who say that instead of the word תחום-boundary, the text should read תהום which in this case would mean a cliff. Tosafot is speaking of a cliff that juts out above the land beneath it. It is as if the top of the cliff is on the parcel of land below it, which would be a candidate for the kinyon of ‘אגב-together’, but it is not effective because that kinyon is reserved only for acquiring movable objects together with land, but not land together with land.</i> and together with it acquire the upper land, where we now have a case of this parcel of land on top of this parcel of land, one does not acquire the upper land via the kinyon of ‘אגב-together’.Tosafot has now rejected the notion that the kinyon the Braita is discussing might have been ‘חצר-courtyard’ or ‘אגב-together’. Is there another possibility?Rather, we are compelled to say that the reason one does acquire slaves together with the field, that is because the slaves are considered as attached to the land, just as one parcel of land is attached to another. Since the slaves are considered as land they are also considered as attached to actual land. The kinyon that is effective for one parcel of land is simultaneously effective for other parcels of land as the Gemara will now demonstrate from Shmuel’s statement on the subject. And if so, even when they, the slaves, are not standing in it, the courtyard, one should also acquire the slaves when taking possession of the land. For this is similar to ten fields in ten provinces, where the rule is that when one takes possession of one of them, the fields, he acquires all of them.The Gemara has concluded according to Tosafot’ understanding that the kinyon the Braita is discussing is not ‘אגב-together’ nor ‘חצר-courtyard’, but it is any kinyon that is valid for acquiring the land which is simultaneously effective for other parcels of land.Tosafot now explains how the Gemara in Masechet Bava Batra 54a which seems to be contradicting our Gemara can be reconciled with our Gemara. The Gemara there is discussing a field that has definite boundaries and one is performing a kinyon of חזקה by doing some physical improvement for the field. Rav says: that as soon as he digs into the ground he has taken possession of the entire field. Shmuel disagrees.And that which Shmuel says in Chapter Chezkas HaBotim (Bava Batra 54a) that when digging in a field to take possession by חזקה, he only acquires the place where he dug into the ground, which seems to contradict Shmuel’s statement here that he can acquire even ten fields in ten provinces:That is true only for the property of a convert which is ownerless. A convert may have no heirs. If he had no children after becoming a convert and he did not make any provisions to dispose of his property upon his passing, it becomes ownerless upon his death.However, if another person3<i class="footnote">דעת אחרת – literally means another mind. In the context in which it is being used here, it means the will of another person who wants to transfer the property to the purchaser or the recipient of the gift as opposed to when one is acquiring ownerless property where the one taking possession must acquire it entirely on his own. Due to the inherent weakness of acquiring property by oneself a stronger kinyon is needed. The kinyon that can acquire ten fields in ten provinces when it is done with the benefit of another person who wants to transfer the property to the purchaser can only acquire the place that he dug the hole when one is acquiring ownerless property.</i> is transferring it, the property to the one who is acquiring it, he acquires all ten fields in ten provinces.And that which the Gemara says there, Bava Batra 55a,4<i class="footnote"> אמר רב אסי אמר רב יוחנן: המצר והחצב מפסיקין בנכסי הגר</i> that a natural boundary interrupts the power of the kinyon to acquire that which is beyond that boundary, that also is true only when the property is the estate of a convert, or for a sale and the purchaser did not pay them for all the fields, for it is required for this kinyon to be effective for all ten fields that he pays for all of the fields, as is evident in the first chapter of Kidushin (27b).5<i class="footnote">See Tosafot there ד"ה במה דברים אמורים who asks: if the land has been paid for, why is a kinyon of חזקה necessary, after all money is an acceptable kinyon for purchasing land? Tosafot there offers two answers:A) It is speaking of a place where it is not the custom to take possession with money, but only with a חזקה.B) It is speaking of a case where the seller already owes the purchaser the amount of money of the entire sale. In a sense the property has been paid for because no more money will change hands, but owed money cannot affect a kinyon, i.e. I can acquire land by giving money to its owner, but I cannot acquire land by relinquishing the debt that is owed to me. There must be some other kinyon to consummate the sale.</i> 
  
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  Moveable property is different. From the exchange in the Gemara, it emerges that if we hold that slaves are considered as movable objects, the first Braita says that the slaves are not acquired by one who makes a kinyon on the courtyard because they were not physically on the property. The second Braita that says they are acquired with the kinyon of the land is speaking of when the slaves are on the property when the kinyon is made. The Gemara asks: why should it be so? We have learned that the movable objects need not be on the land for the kinyon of ‘אגב-together’ to be effective? We are compelled to say that there is a difference between ordinary movable objects that are not self- propelled and slaves that are self-propelled.The term self-propelled can be a bit misleading. Technically it can include animals which are self-propelled. They move by their own power and their own will. Tosafot knows from a Gemara in Masechet Kidushin 26b that kinyon of ‘אגב-together’, is effective for animals even when they are not on the land that is used for the kinyon. We must find some distinction between slaves and animals that causes the difference in the rules that govern their kinyon.Tosafot expands the literal meaning of movable objects that are self- propelled in order to accommodate the distinction between animals and slaves.The explanation of movable objects that are self-propelled is: that they have intelligence and choose to move wherever they so decide, but animals are not considered movable objects that are self-propelled, and they can be acquired via the kinyon of ‘אגב-together’, even if they are not upon the land, as the Gemara says in the first chapter of Kidushin (26b) where the Gemara is relating a story about a man who used the kinyon of ‘אגב-together’ to transfer one hundred sheep and he said: a tefach by a tefach of land, is given to p’lonee, and together with it one hundred sheep. Obviously one hundred sheep cannot be placed on a four inch square piece of land, the kinyon was effective even though the sheep were not on the land. Why do sheep differ from slaves, where we say that they must be on the land? The difference must be because the slaves move about as a result of their intelligence and the animals do not have intelligence.
  
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  Moveable land is different. The Gemara concludes that just as we are compelled to distinguish between movable objects that are self propelled and those that are not according to the one who holds that slaves are considered movable objects, so too, we must distinguish between land that is self propelled, such as slaves and ordinary land which is stationary. It seems that this is the only distinctive characteristic between land and slaves. Tosafot suggests that there is another reason to distinguish between taking possession of ten fields in ten provinces and acquiring slaves that are not on one’s property.The Gemara in Bava Batra 67a discusses acquiring two parcels of land that are utilized for different purposes and says that the חזקה made for one is invalid for the other. When challenged from Shmuel’s rule that one can acquire ten fields in ten provinces with one חזקה, the Gemara responds: Shmuel is speaking of where all ten fields are utilized in the same manner, a sand lot and a river bed are different functions.And if you ask: even if slaves would not be self propelled, but they, the land and the slaves, serve two different functions,and taking possession of them, land and slaves, is similar to a sand lot and a river bed, where we have learned that one who takes possession of one of them, does not acquire the other, so too, one who takes possession of land should not acquire the slaves because they serve different functions,as the Gemara says in chapter HaMochair Es HaBayis (Bava Batra 67a) according to one version. There is an alternate version there that holds one can acquire a sand lot and a river bed with one חזקה.And one can answer: that a slave and land are considered one function because the slave is fit for working the land.
  
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  Who [is] the Tanna? The Mishna states that if one damages property that is not subject to the m’eeloh violation, he is liable for damages. If however, the property is subject to the m’eeloh violation, one who damages that property is not liable for damages. That property is not the property of ‘רעהו-his neighbor’ and he is therefore not liable.Our Gemara deduced that since the Mishna mentioned the m’eeloh violation as the determining factor, we can see that even if the property is holy and has been designated for the temple service, one may be liable for damages as long as there is no m’eeloh violation. The Gemara then asks: who is the Tano that holds this position?Tosafot wonders: there seems to be a very simple solution to this question. Land that has been given to the temple treasury is holy, but not subject to the m’eeloh violation. Why doesn't the Gemara present this case as one, which satisfies the conditions, holy but not subject to the m’eeloh violation?What is meant is: that it was plain to the Gemara that the Tano did not intend to exclude those holy properties where there is no m’eeloh violation such as land. For since they are totally the property of the temple, the fact that there is no m’eeloh, would definitely not make any difference. Such property definitely belongs to the Temple Treasury even though there is no m’eeloh violation for benefiting from land that belongs to the Temple Treasury. The Gemara understands that what we are searching for is a situation where lack of m’eeloh violation indicates that the temple ownership is not total and the property still falls within the realm of ‘his neighbor’s’.
  
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  But does he say [his opinion] when [it is] alive? Since this Tosafot is a bit lengthy and complicated, we are including a step by step outline of the movements of the Tosafot.Outline of תוספות ד"ה ומחיים מי אמרA) Question: What can the Gemara possibly mean with its question? If not when the animal has been slaughtered and not when it is alive, when then did R’ Yosee say that kodshim kalim is the property of its owner?B) Rejected solution: That the Gemara is asking that perhaps R’ Yosee said that kodshim kalim is the property of its owner only when the sacrifice is not suitable to be offered but if it is suitable to be offered as a sacrifice it is not the property of its owner. This solution is then rejected by Tosafot, because although R’ Nachmon’s explanation of the Mishna tends to support it, the statement of Ben Azzai clearly says that sh’lomim are included in R’ Yosee’s statement and they are suitable to be offered as a sacrifice.C) Solution: The Gemara is questioning whether the entire animal is the property of its owner or perhaps only that portion of the animal that will not be given to the Kohanim. The Gemara will eventually prove that R’ Yosee does not hold that the Kohanic gifts are the property of the owner even while the animal is alive.D) Tosafot challenges his explanation of the Gemara’s question from the Gemara in Masechet Beitzah 21a, where it appears that even the portion of the owner is a gift from the Table of the Most High.E) Tosafot concludes that in fact the portion of the owner is his property even after the animal is slaughtered.F) Tosafot concedes that according to his approach, the conclusion of the Gemara in Kidushin 52b does not concur with the conclusion of our Gemara.The Gemara has just concluded that R’ Yosee’s position that kodshim kalim1<i class="footnote">קדשים קלים– literally lighter kodshim. Usually the majority of the flesh may be eaten by non-Kohanim and may be eaten throughout all of Jerusalem, as opposed to קדשי קדשים- holiest of the holy that may be eaten only by male Kohanim and only in the courtyard surrounding the Temple.</i> are considered the property of the owner who has donated the sacrifice, is only true while the animal is still alive. After it is slaughtered it becomes the property of the temple and it is given to the Kohain as a gift to eat, but it is not his property as is evident from the Mishna in Kidushin 52b. The Gemara now questions whether R’ Yosee said this statement about a live animal. This is very perplexing. We know that R’ Yosee did make the statement. How can we even question whether it was said in reference to a live animal, if we know that it hr did not say it about an animal that was already slaughtered, he must have said it about a live animal? Is there any another option?This is bewildering: What is the Gemara thinking? If while they are alive he did not say, that kodshim kalim are the donor’s property, he certainly did not say that after they were slaughtered that kodshim kalim are the property of the Kohain, as we have seen in the Gemara, that post-slaughtering, the meat is a gift to the Kohanim from the Temple.We must conclude that when the Gemara asks: “Does it truly apply when the animal is alive?” The Gemara does not mean to say that perhaps the rule does not apply at all, but rather the Gemara means: perhaps it doesn't apply in all the situations that you have indicated but only in one of them. By saying that it applies when the animal is still alive we are stating that in all cases that the animal is alive it is the property of the owner. When the Gemara now asks: “And did R’ Yosee say his rule when the animal is still alive?” The Gemara means: Did he say it in all cases or perhaps only in one?Tosafot is now trying to determine which circumstances of ownership of kodshim kalim is the one that the questioner wants to reject and which he accepts. Tosafot’ first thought on the matter is that we might differentiate between those animal’s that are suitable to be offered on the altar, which are not the property of the original owner because they are going to be offered on the altar and those that are not suitable to be offered on the altar, which are the property of their original owner. Tosafot rejects this suggestion.And we should not say that the meaning of the Gemara’s question is as follows: and when the animal is alive, was it said that in all instances the animal is the donor’s property even when the animal is fit to be offered on the altar? The Gemara is thus suggesting that R’ Yosee’s rule might only to animals that are not fit to be offered on the altar.Tosafot will first explain why the questioner assumes that R’ Yosee’s statement included animals that are fit for the altar:That R’ Yosee is speaking even about animals that are fit for the altar might be inferred from the fact that the Gemara distinguishes between when the animal is alive and when it has already been slaughtered. This implies that in all instances that the animal is alive, even when it is suitable to be offered on the altar, you consider it his, the donor’s, property, just as the animal spoken of post-slaughtering was suitable for the altar. By virtue of the fact that it was already slaughtered, it is evident that it was in fact suitable to be offered on the altar.Tosafot must now show us why this approach is incorrect:For if it was so, when the Gemara attempts to refute the assertion that R’ Yosee’s rule applies to animals which are fit for the altar, from the fact that Raveeno said that R’ Yosee was discussing a firstborn born outside of Eretz Yisro’ail, the Gemara should have defended it’s position, that sacrifices that are suitable to be offered are the donor’s property by mentioning that Ben-Azzai says that the superfluous word “לשם” comes to include sh’lomim for oshom liability when falsely swearing in denial of a claim involving the loss or theft of the sh’lomim, which is clearly speaking about a live animal that is suitable to be sacrificed on the altar.Tosafot here is referring to a portion of the Braita which appear on 13a. The Gemara mentions that there are two opinions clarifying the statement of R’ Yosee. Ben-Azzai says that R’ Yosee was referring to Sh’lomim when he mentioned “minor Kodshim”. Abba Yosee says he is referring to a firstborn.Ben-Azzai and Abba-Yosee are coming to clarify R’ Yosee’s position as Rashi said. Sh’lomim are fit for the altar, and may initially be offered. Ben-Azzai mentioned Sh’lomim which are fit for the altar as a clarification of R’ Yosee’s ruling, so we see that R’ Yosee certainly is discussing animals which are fit for the altar and we cannot say that the questioner meant to distinguish between animals which are fit for the altar, and those which are not.We must now find a distinction that can be made between some instances where we do apply R’ Yosee’s principle that kodshim kalim are the property of the owner who designated them as a sacrifice and other cases where we say that kodshim kalim are the property of the Table of High (Hashem’s).And we can answer: that the explanation of the Gemara’s question is as follows: And did R’ Yosee say that while the animal is alive, it is entirely the owner’s property, even those portions, the breast and right thigh, that Kohanim will receive from the Sh’lomim? As for the portion that belongs to the donor, it was plain to the Gemara that it is the property of the donor. The Gemara’s question at this juncture pertains only to the eventual gifts of the Kohanim.But what is the basis for this understanding that when the Gemara indicated that while the animal is still alive kodshim kalim is the property of the donor; it is referring even to the portion that will eventually be given to the Kohanim?The questioner understood that the ruling ‘kodshim kalim is private property’ refers even to the future Kohanic gifts from the fact that the Gemara did not initially answer when presented with the contradiction from the Mishna in Kidushin that says that the Kohain cannot use his portion to affect Kidushin, that gifts to the Kohain are different, and are not considered the donor’s property since they will ultimately be given to the Kohanim. Tosafot proves that the question was directed at the gifts of the Kohain because he who betroths “with his portion” is a reference to the gifts of the Kohain, the portion that he receives from the sh’lomim. Since the Gemara does not answer that the Kohanic gifts are different, but rather says that after the slaughter of the animal the Kohanim receive their portion as a gift from the temple table and then it is not the property of the owner, is an implication that as long as the animal is alive, even the gifts of the Kohain are the donor’s property.According to Tosafot’ explanation, the Gemara’s question is that the Kohanic gifts should not be considered the property of the owner even while the animal is alive. The Gemara according to Tosafot’ text (see תוספות ד"ה ואם איתא) eventually accepts this argument and concludes that R’ Yosee’s rule does not apply to the Kohanic gifts.This explanation of the Gemara’s question is based on the fact that the Gemara did not initially answer that the Kohanic gifts are different and they are not the property of the donor. Perhaps there is some other reason why the Gemara did not use this answer? And if you ask: Had the Gemara answered that Kohanic gifts are different, the implication would be that only the Kohanic gifts are temple property and that the portion of the donor is privately owned even after the slaughtering of the animal. Perhaps the Gemara did not want to use this answer because we have learned in the second Chapter of Beitzah (21a) that even the portion of the owner is considered a gift from the temple table?Tosafot must show that the Gemara in Beitzah 21a is referring to another aspect of kodshim kalim being the property of its owner:And we can answer: That the statement of Beitzah (21a) pertains to the aspect of sacrifices that are commitments and donations,2<i class="footnote">Technically נדר is a commitment to offer a sacrifice in the Temple and one is not free of his commitment until a sacrifice is actually offered. If the animal designated to fulfill this obligation dies or is disqualified, the donor must replace it with a suitable animal. נדבה is a donation where an animal is designated as a sacrifice. If the animal should die or become disqualified there is no obligation to replace it.</i> that may therefore not be offered on the Holidays and are not treated as regular non-sacrificial animals, which may be slaughtered for food, because the primary purpose of the slaughtering of those sacrifices is that they be a sacrifice to Hashem and not to be used as food for the owners (even though that is the secondary purpose) and this is a violation of the rule that work may be performed on the Holidays only “for you, your personal needs, and not for the temple sacrifices”. It is in reference to that ruling that Beitzah (21a) states that the portion of the owners comes from the temple table but not in reference to financial ownership.However, it is plain that the portion of the donor, even after the slaughtering of the animal, is privately owned to be used to betroth a woman and for any other purpose.3<i class="footnote">See Rashi ד"ה אבל לאחר שחיטה who clearly says that even the portion of the owner is a gift from the Table of the Most High. Many Rishonim concur with Rashi and disagree with Tosafot on this issue.</i>And so it can be understood that the term one who betroths “with his allocation” refers to the Kohanic portion. For the expression “his allocation” can only refer to the Kohanic portion.For the owner’s share cannot be referred to, as an “allocation” since the flesh of the sacrifice is mainly theirs and it is they who allocate to the Kohain.The Scripture cited as proof in Perek Ho’ish M’kadesh (Kidushin 52B) in reference to the Mishna about ‘one who betroths with his share’, which is “and this shall be to you from the holy of holies from the fire” was written only in reference to the share of the Kohanim. This also reinforces Tosafot’ conclusion that “his portion”, that cannot be used to affect Kidushin is specifically the allocation of the Kohain. The donor of the sacrifice can use his share of the flesh to betroth a woman. (Rashi ד"ה כי זכו, and many Rishonim clearly disagree with Tosafot on this point.)And that which the Gemara queries there (Kidushin 52B): Let us say that our Mishna that says that one who betroths with his share of a sacrifice does not affect Kidushin, does not follow the opinion of R’ Yosee who says that kodshim kalim is the property of its owner and one can affect Kidushin with them?And the Gemara concludes that R’ Yosee’s statement was said only when the animal is alive. A proof: The Mishna states “one who betroths with his share” which implies that the Mishna is discussing the portion he receives post-slaughtering.The Gemara’s conclusion in Kidushin 52b that “his portion” implies post-slaughtering does not concur with the conclusion of our Gemara but with our Gemara’s original speculation that the Kohanic gifts are the property of their owner when the sacrifice is still alive. For at its conclusion, our Gemara holds that the Kohanic gifts are temple property even while the animal is alive. 
  Unblemished [and] alive but not slaughtered. Notice that in the text of our Gemara the words ולא שחוט appear in the Mishna in parentheses. Tosafot text of the Mishna apparently had the words אבל לא שחוט and Tosafot needs to explain that this ruling that an unblemished firstborn cannot be sold post-slaughtering is simple and not really needed. This information, that an unblemished firstborn may not be sold after it is slaughtered, was not necessary.Because we will soon interpret the Mishna as speaking about a firstborn nowadays, when there is no temple and the firstborn cannot be offered, and so it is not possible to sell it, the flesh of the firstborn, after slaughtering because it is prohibited to benefit from it since it was not offered on the altar as is required of all sacrifices. The firstborn animal is a sacrifice at birth and when it is slaughtered outside of the Temple it is totally forbidden.If so, what is the Mishna teaching us?However, the Mishna informs us that it, the firstborn, can be sold while it is alive even though a similar sacrifice, the tithe may not be sold, because the verse says about the tithe “he may not be sold and he may not be redeemed” (Vayikra 27, 33).1<i class="footnote">See Tmuroh 5b and B’choros 32a where the Gemara explains that the words ‘he may not be sold are not in the verse about the tithe. The Gemara there says that although they appear elsewhere, by virtue of a d’rosho it is as if they are in the verse about a tithe.</i> And so it is in the first Chapter of T’muroh (5b).
  
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  And Rava raised an objection to Rav Naḥman. Rav Nachman said that the Mishna which teaches that one may sell a live unblemished firstborn is speaking of a firstborn nowadays, when there is no Temple and the firstborn is not suitable to be offered as a sacrifice. However, during the period of the Temple an unblemished firstborn that is suitable to be offered on the altar, is not the property of its owner.Rovo challenges Rav Nachman’s interpretation of the Mishna, based on the Braita that teaches us that R’ Yosee Ha’Gleelee says that kodshim kalim is the property of its owner. But perhaps R’ Yosee is all speaking about kodshim kalim nowadays, when we have no Temple? Where is it indicated in the Braita that it is speaking about when the Temple stood? Tosafot suggests:And this Braita is speaking of when the Temple stood, because the kodshim kalim the Braita is discussing are comparable to sh’lomim. The Braita is speaking of sh’lomim as well, as can be seen from the statement of Ben Azzai 13a, who is clarifying R’ Yosee Ha’Gleelee. Sh’lomim are in existence only when there is a Temple, and so too the kodshim kalim R’ Yosee is discussing must be those that were in existence when the Temple stood, as the Gemara says in the first Perek of T’muroh (8a).Alternatively, we can say that the Braita is speaking of kodshim kalim when the Temple stood as Rashi explained: That it is in regard to the obligation to bring a sacrifice for violating the property of the Temple1<i class="footnote">Tosafot mentions that the verse being expounded deals with a sacrifice for מעילה which is for violating the Temple treasury by using the Temple funds for one’s private use. This is a bit difficult. See רש'י ד"ה שהן ממונו who says that the verse is coming to establish liability for an אשם. Rashi may very well mean an אשם גזלות, an Oshom that is brought when swearing falsely in a monetary claim. The verse is teaching us that kodshim kalim are the property of the owner and one who swears falsely about a claim involving kodshim kalim is liable for an אשם גזלות. Tosafot seems to have understood that the Gemara is discussing an אשם מעילות. This may be because the Gemara initially introduced this discussion to explain our Mishna, which refers to the status of the property that is damaged as – property where there is no מעילה.</i> that this verse is expounded and that, bringing the M’eeloh sacrifice, is only possible when the Temple stood,2<i class="footnote">See אוצר התוספות who cites the Disciple of Rabbeinu Tam, who asks that even though the Temple is not standing, one can still be liable to bring a sacrifice, as we find in Masechet Shabbat 12b that R’ Yishmo’ail ben Eleesho said that he must write in his notebook that when the Temple will be rebuilt he must bring a sacrifice for having violated the Shabbat. See note 2119 there and the question he cites from the Rashbo.</i> thus the concept of kodshim kalim being the property of its owner must be speaking of when there is a Temple and the sacrifice is suitable to be offered on the altar.
  
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  [Regarding] a firstborn outside of the Land [of Israel]. Rav Nachman explained the Mishna in Maasair Shainee, Perek 2, Mishna 2, that discusses one’s right to sell a live unblemished firstborn as speaking of nowadays when it is not possible to offer it as a sacrifice because there is no Temple. When Raveeno wants to deflect the proof from R’ Yosee Ha’Gleelee’s statement about kodshim kalim, he says that it is speaking of a firstborn outside of Eretz Yisro’ail. Tosafot will explain why Raveeno could not have said that R’ Yosee is speaking of nowadays when there is no Temple and why Rav Nachman did choose to speak of a firstborn nowadays.The reason that Raveeno did not answer that R’ Yosee is speaking about a firstborn nowadays, when there is no Temple, is because that Braita is speaking of kodshim kalim that are comparable to sh’lomim, which exist only when the Temple stood, as we explained earlier in the previous Tosafot, (Tosafot.com, P. 33) as is explained by the Gemara in T’muroh 8a.But R’ Nachmon explained the Mishna in Maasair Shainee as speaking of a firstborn nowadays?However, Rav Nachman earlier when explaining the Mishna that permits selling a live unblemished firstborn, could have said that it is speaking of a firstborn born outside of Eretz Yisro’ail, but that is an awkward explanation, to say that the Mishna is not speaking about all firstborns, but only a small minority of firstborns that are likely to be born outside of Eretz Yisro’ail when the Temple stood. He is more at ease interpreting the Mishna as speaking about a firstborn nowadays, which deals with all firstborns and not only a small minority. 
  And is in accordance with Rabbi Shimon, who says: If [they] came [from outside of Eretz Yisrael to Eretz Yisrael and they are] unblemished, they may be sacrificed. By saying that Raveeno is explaining the Braita of R’ Yosee as speaking of a firstborn outside of Eretz Yisro’ail according to R’ Shimon, it is understood that there is an opposing opinion, which our Gemara does not explicitly mention. Tosafot cites and explains that opposing opinion and also clarifies our Gemara’s hesitation to attribute the Braita of R’ Yosee Ha’Gleelee to the opposing opinion.R’ Akiva argues with him, R’ Shimon, in Perek Ailu Kodshim in T’muroh (21b) and says they, foreign firstborns, may not be offered on the altar even if they were already brought to the Temple.Because he expounds from a comparison in the verse D’vorim 14, 23, where the ‘second tithe’ appears adjacent to the ‘firstborn’, from a place that you do not bring second tithe, outside of Eretz Yisro’ail, you may not bring a firstborn to be offered on the altar.Now that we know that the opposition, R’ Akiva, holds that a firstborn born outside of Eretz Yisro’ail, may not be offered as a sacrifice in the Temple, Tosafot asks: And if you ask: Why does the Gemara say that the Braita of R’ Yosee Ha’Gleelee is speaking of a firstborn born outside of Eretz Yisro’ail and is following R’ Shimon, certainly according to R’ Akiva who says that they may not be offered, even if they have already been brought to Eretz Yisro’ail, they are his, the owner’s, property? It is only when an animal may be offered on the altar that we consider the possibility that it is not the property of its owner since it must be offered as a sacrifice, but when an animal is definitely not suitable to be offered in the Temple as is true of a firstborn born outside of Eretz Yisro’ail according to R’ Akiva, it is definitely not the property of the Temple, but the property of the owner.And we can answer: That Raveeno interprets the Braita of R’ Yosee Ha’Gleelee according to R’ Shimon who says that if the firstborn was brought to Eretz Yisro’ail they are to be offered as a sacrifice in the Temple, because the Braita is speaking of sacrifices that are comparable to sh’lomim, which are eligible to be offered, even though the foreign firstborn is not initially offered in the Temple, it can be offered if it is brought to Eretz Yisro’ail, whereas according to R’ Akiva, the foreign firstborn may not be offered at all even post-facto of its arrival in Eretz Yisro’ail.Furthermore, we can answer: That it is compelling not to interpret the Braita as following R’ Akiva, since the Braita requires a verse to incorporate kodshim kalim as the property of the owner, whereas according to R’ Akiva who holds that the foreign firstborn can never be offered as a sacrifice there is no need for a verse to teach us that it is the property of its owner. It is only according to R’ Shimon who holds that there is a possibility of offering it as a sacrifice that we require a verse to teach us that even so it is the property of its owner.
  Not from the outset. The Gemara deduces that a firstborn is offered only if it has already been brought from outside Eretz Yisro’ail, but not initially. The term ‘not initially’ can be interpreted two ways:A) That if they are brought to Eretz Yisro’ail they may still not be initially offered as a sacrifice. It is only post-facto, if the Kohain violated this prohibition and sacrificed the firstborn on the altar that it is considered a proper sacrifice and may be eaten as the flesh of all other firstborns are eaten.B) That the alien firstborn need not be transported to Eretz Yisro’ail, but if the owner desires to bring him, it may initially be offered as a sacrifice.Tosafot tells us that it is the second explanation that is correct.The explanation of ‘not initially’ is: it is not necessary to bring them, the firstborns from outside Eretz Yisro’ail, as the Gemara explains in Perek Ailu Kodshim (there 21a), R’ Shimon said: What is the reason that firstborns need not be brought to Eretz Yisro’ail to be offered in the Temple? Because all other sacrifices do not have a remedy1<i class="footnote">פרנסה usually refers to one’s sustenance. Rashi says in many places that one’s needs are included in the term פרנסה. In a certain sense it is the need of a sacrifice that the sanctity be released. This is accomplished either when it is offered a s a sacrifice in the Temple or when the sanctity is redeemed if the animal develops a blemish. The redemption is the remedy of its predicament. The firstborn or tithe sacrifices are not redeemed. Their remedy is that they are eaten when they develop a blemish.</i> in their place when outside Eretz Yisro’ail, the explanation: their sanctity can only be released in the Temple, even when they are blemished and they cannot be offered as a sacrifice, they must be redeemed and the money realized from the redemption is used to purchase an animal to replace the original sacrifice in the Temple,2<i class="footnote">Since it will ultimately be necessary to travel to Eretz Yisro’ail to offer the animal purchased with the redemption money as a sacrifice, one might as well bring the unblemished sacrifice to Eretz Yisro’ail and offer it as a sacrifice in the Temple.</i> except for the firstborn and tithe animals that do have a remedy in their places outside of Eretz Yisro’ail. The explanation is: That they are eaten because of their blemish and there is no redemption that needs to be brought to the Temple.3<i class="footnote">See note 2. R’ Shimon does not offer any reason that might be a disqualification of the firstborn or tithe animals that were born outside of Eretz Yisro’ail. He merely explains why it is not necessary to transport them to Eretz Yisro’ail. Tosafot concludes that there is in fact no reason not to bring them to Eretz Yisro’ail, it is only that one is not required to bring them, but if he does bring them, they may be offered in the Temple as a sacrifice.</i>Our Gemara attributes this position to R’ Shimon. As we will soon see there is reason to believe that this is in fact R’ Yishmo’ail’s position.It is for this reason that our Gemara depends this position on R’ Shimon, because the entire Mishna there in T’muroh 21a, which first says anonymously that if the unblemished firstborn is brought to Eretz Yisro’ail it may be offered and is then explained by R’ Shimon is the position of R’ Shimon.4<i class="footnote">Even though the position of the Mishna is first stated anonymously, it is not uncommon that the Mishna is attributed to a Tano who subsequently explains the reason behind the ruling.</i> And it is slightly appealing to emend the text to read ‘R’ Yishmo’ail’ instead of ‘R’ Shimon’, because the Gemara there challenges the Mishna that says ‘they, the alien firstborns, should be offered’ from the story of the son of Antoninus who brought firstborns from Babylonia and they did not accept them as offerings in the Temple.The G'moro there answers: This follows R’ Yishmo’ail and that follows R’ Akiva.And it is evident there in T’muroh 21a, that the Mishna there in T’muroh follows R’ Yishmo’ail and the Braita5<i class="footnote">There are those who emend the text of Tosafot to read ‘and the Mishna about the son of Antoninus’, because that story is actually cited in Masechet Chaloh, Perek 4, Mishna 11.</i> about the son of Antoninus follows R’ Akiva who says that the alien firstborns may not be offered in the Temple as a sacrifice. It is clear that the Gemara in T’muroh attributes the Mishna of T’muroh to R’ Yishmo’ail. Tosafot therefore says that it is slightly appealing to emend the text of our Gemara to read that the Braita of R’ Yosee Ha’Gleelee follows the opinion of R’ Yishmo’ail and is discussing a firstborn from outside Eretz Yisro’ail.
  
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  And if it is so let him answer him. In the course of this Tosafot he will refer to his explanation of the Gemara’s discussion as he explained it in תוספות ד"ה ומחיים. It is definitely worthwhile to review that Tosafot before proceeding to this Tosafot.The Gemara will now finally complete its question about the Gemara’s previous answer that the Mishna in Kidushin 52b can concur with R’ Yosee Ha’Gleelee who says that kodshim kalim is the property of its owner, who designated the animal as a sacrifice.The Gemara asked that the Mishna that says that one who betroths a woman with his portion of kodshim kalim does not affect Kidushin because the ‘portion’ is not his property. The Gemara answered: That after the animal has been slaughtered all agree, even R’ Yosee that it is the property of the Table of the Most High and the Kohanim receive it as a gift from Hashem only to be eaten. R’ Yosee who said the kodshim kalim are the property of their owners was speaking strictly about when the animal is still alive. We will refer to this position as ‘the answer’ of the Gemara.The Gemara then questions ‘the answer’. Tosafot explained that the Gemara’s question was: Did R’ Yosee say that kodshim kalim are the property of the owner even as far as the parts of the animal that are gifts of the Kohanim? The entire thrust of the Gemara’s question is only to prove that the Kohanic gifts of kodshim kalim are not the property of their owner even while alive.To this end the Gemara quoted a Mishna in Masechet Maasair Shainee, Perek 1, Mishna 2, which says that one can sell a live unblemished firstborn. Rav Nachman said in the name of Rabbah bar Abuho that the Mishna is referring exclusively to nowadays, when the animal cannot be offered as a sacrifice. This indicates that if the animal could be offered as a korbon it could not be sold. When Rovo challenged Rav Nachman with the Braita of R’ Yosee Ha’Gleelee, which says that kodshim kalim are the property of their owner, Raveeno said that R’ Yosee Ha’Gleelee was speaking about a firstborn that was born outside of Eretz Yisro’ail which is also not going to be offered as a sacrifice. The Gemara now analyzes the dialogue between Rovo and Raveeno as it relates to ‘the answer’ that the Gemara originally said:The explanation: If it is so, that when the korbon is alive, it is all the property of its owner, even the Kohanic gifts which are suitable to be offered such as a live unblemished firstborn during the Temple period, when the Gemara inferred from Rav Nachman in the name of Rabbah bar Abuho that when the Temple stood, the live unblemished firstborn could not be sold,he, Raveeno, should have answered Rovo: That statement of Rav Nachman in the name of Rabbah bar Abuho is in accordance with the Rabonon, who disagree with R’ Yosee and hold that kodshim kalim is the property of the Temple, because however you choose to view this issue, that ruling cannot follow the opinion of R’ Yosee HaG’leelee. R’ Yosee HaG’leelee is saying that even when a live animal is suitable to be offered as a korbon, even if it is a Kohanic gift, such as a firstborn, it is the property of its owner. Rav Nachman is saying the exact opposite in his explanation of the Mishna in Maasair Shainee, by stating that an unblemished firstborn can be sold only nowadays when there is no Temple, but during the Temple period it was not the property of its owner and could not be sold. There is no way to reconcile that position with ‘the answer’ of our Gemara. Raveeno’s answer, that R’ Yosee is also speaking about a firstborn that was born outside of Eretz Yisro’ail and will also not be offered as a sacrifice seems to acknowledge Rav Nachman’s position that a firstborn that is suitable to be offered is in fact not the property of its owner.The Gemara later 53b speaks of a situation where an ordinary ox and an ox that was a disqualified sacrifice both gored a third ox. There is an assumption in the Gemara there that the disqualified korbon is not the property of its owner and does not satisfy the criteria that liability for damages is dependent on the ox being שור איש-an ox of a man, which indicates that the damaging ox must be the property of its master. Thus the previous owner of the disqualified korbon is not liable for any damage that the disqualified ox causes. Abaye and Rovo dispute the extent of the liability of the owner of the ordinary ox.Although the Gemara there speaks of a ‘disqualified korbon’ which usually means an animal that developed a blemish and was redeemed, Rav Y’hudai G’on says that the Gemara cannot possibly be referring to such an animal, because a disqualified korbon that has been redeemed is definitely the property of its owner and satisfies the criteria of שור איש-an ox of a man. He insists that the Gemara there is discussing a firstborn that developed a blemish.We have seen that the firstborn that develops a blemish is not redeemed at all. He is slaughtered and eaten as is. While he is alive he does retain certain prohibitions of a sacrifice, which are that it is forbidden to shear him or work with him. Rav Y’hudai G’on says that it is the blemished firstborn who is not considered the property of his owner and does not satisfy the criteria of שור איש-an ox of a man. We must now review the status of this blemished firstborn in light of what we have learned in our Gemara about the position of R’ Yosee HaG’leelee and the Rabonon who disagree with him.According to ‘the answer’ of our Gemara, R’ Yosee who says that kodshim kalim are the property of their owner is referring to an animal that is suitable to be offered as a sacrifice. The Rabonon disagree with him and say that if the animal is suitable to be offered it is not the property of the owner, but the property of the Temple. Presumably, even the Rabonon who disagree with R’ Yosee about an animal that is suitable to be offered, would agree that if the animal was unsuitable, such as a blemished firstborn or one born nowadays, it would be considered the property of its owner.In fact our Gemara, which suggests that if R’ Yosee is speaking of a korbon that is fit to be offered, Rav Nachman who said that the Mishna in Maasair Shainee that says a firstborn can be sold while alive is speaking of a firstborn born when there is no Temple, is clearly saying that according to the Rabonon an unblemished firstborn is the property of its owner. If so we must now re-examine the Gemara on 53b that speaks of a blemished firstborn as not being the property of its owner. Is there anybody who holds that way?And according to this thinking, ‘the answer’ of our Gemara, which holds that R’ Yosee is speaking of a live animal and is saying that it is the property of its owner, the Rabonon would agree that if the animal is not suitable to be offered it is the property of its owner, that which is understood from the Gemara later at the end of HaPoroh (53b), that a blemished firstborn is not within the criteria of ‘the ox of his neighbor’, even nowadays, when there is no Temple, is not true, because according to ‘the answer’ there is nobody who holds that a firstborn that is unsuitable to be offered is not the property of its owner. The Rabonon who disagree with R’ Yosee HaG’leelee and hold that a korbon is Temple property, do so only in reference to an animal that is suitable to be offered, but not in reference to an animal that is not suitable to be offered.Tosafot elaborates on what we see in the Gemara on 53b:For Abaye and Rovo argue about an ordinary ox and an ox that is a disqualified sacrifice that together gored a third ox.And Rav Y’hudai G’on explained that the ‘disqualified sacrifice’ they are discussing is a firstborn ox that was blemished and is thus unsuitable to be offered as a sacrifice, which will not be redeemed, as opposed to the usual meaning of a disqualified sacrifice, which refers to a korbon such as a sh’lomim or an oloh that developed a blemish and were redeemed. Rav Y’hudai G’on insists that the usual ‘disqualified sacrifices’ that have been redeemed are in fact private property once they have been redeemed.And we must say as he explained that a ‘disqualified korbon’ refers to a blemished firstborn as I will clarify there on 53b with the help of Hashem.And they, Abaye and Rovo, are most probably arguing about the status of a blemished firstborn in their times, which was the post-Temple period. For nowadays according to all opinions, R’ Yosee and the Rabonon, a blemished firstborn is private property, and there is no one who holds that a blemished firstborn is not the property of its owner. If so, according to whom are Abaye and Rovo saying that there is no liability for the damages of the blemished firstborn because it does not qualify as ‘the ox of his neighbor? All opinions hold that a blemished firstborn is the property of its owner and if he damages, his owner should be liable.In conclusion Tosafot holds that ‘the answer’ of our Gemara does not concur with the Gemara on 53b that says a blemished firstborn even nowadays when there is no Temple is not private property. Once Tosafot explains the conclusion of our Gemara according to his opinion, he will once again review the Gemara on 53b and show how and why the two Gemaras are in agreement.Tosafot now resumes explaining the text of our Gemara:And the Gemara answers: Rather, in order to reconcile the position of R’ Yosee HaG’leelee and the Mishna in Kidushin 52b, we will not distinguish between when the animal is alive and when it is slaughtered, but we will distinguish between the Braita and the Mishna by saying that Kohanic gifts are different. The Mishna that says in Kidushin that one cannot betroth with his portion is speaking about the parts of the animal that are given to the Kohanim. We will now concede that they are not the property of their owner even while the animal is alive. R’ Yosee HaG’leelee is speaking of the parts of the animal that are eaten by the owner. They are the property of their owner both when the animal is alive and after it is slaughtered. We retract the original ‘answer’ of the Gemara that the difference between the Mishna and R ’Yosee is that the Mishna is speaking of when the animal has been slaughtered and R’ Yosee is speaking of when the animal is alive. This total retraction from the previous answer is indicated by the use of the word ‘אלא’-rather, which says that ‘the answer’ is no longer viable. And this insertion of the word, אלא is the text of Rabbeinu Chananail. And Rashi does not have this text with the word אלא. As we have seen, Rashi is of the opinion that even the portion of the owner is a gift from the Table of the Most High. The owners of the korbon cannot betroth with their portion after the animal is slaughtered. The Gemara is now saying that as far as the Kohanic gifts are concerned, you have adequately demonstrated that there is no difference between when the animal is alive and after it is slaughtered, but as far as the share of the owners, the distinction between when the animal is alive and when it is slaughtered is still in effect. ‘The answer’ of the Gemara is still viable as far as the portion of the owner is concerned. There is no retraction on this point. The Gemara is merely conceding that whereas we originally thought that this distinction was true for about the Kohanic gifts and the owner’s portion, we now see that it is untrue about the Kohanic gifts. Thus there is no need for the word ‘אלא’because there is no total retraction from the original ‘answer’ as there is according to Tosafot’ explanation.Tosafot will now take a second look at the Gemara on 53b in view of his explanation of the conclusion of our Gemara.And now, according to Tosafot explanation, the statement of Rav Nachman, that the Mishna in Maasair Shainee which says that a live unblemished firstborn can be sold only nowadays when there is no Temple, but not when there was a Temple, can be interpreted only according to R’ Yosee HaG’leelee, because it is R’ Yosee HaG’leelee who says that at some point kodshim kalim is the property of its owner. When the animal is suitable to be offered as a sacrifice, even he says that it is not the property of its owner. It is only a firstborn nowadays that is the property of its owner and can be sold. The Rabonon who argue with R’ Yosee obviously must hold that even when the animal is not fit to be offered in the Temple, it is not the property of its owner. Rav Nachman who is also saying that the Mishna is telling us that when the animal is unfit to be offered it is the property of its owner, must be following R’ Yosee HaG’leelee. The Rabonon who argue with him must hold that even when the animal is unfit to be offered it is still the property of the Temple. Thus,the dispute between Abaye and Rovo later on 53b, where both agree that a blemished firstborn even nowadays is not ‘the ox of my neighbor’, must follow the opinion of the Rabonon who say that even when a korbon is unfit to be offered, it is Temple property. According to the conclusion of our Gemara, the Rabonon hold that even an unsuitable korbon is Temple property, whereas according to ‘the answer’ of our Gemara there is no opinion that holds that an unfit korbon is Temple property.Although we are now compelled to say that the Rabonon hold that when a firstborn is blemished and even nowadays when there is no Temple, it is still considered Temple property, Tosafot does want to limit this notion to some degree.It appears that it is exclusively when the animal is alive that the Rabonon hold it is Temple property, even if it is blemished, because there are some limitations on the way it may be used because of its status as a firstborn, for it is forbidden to shear it if it is a sheep and work with it. Since there is some remnant of it original sanctity that expresses itself through these prohibitions it may be considered Temple property, but after it is slaughtered, why should it be considered Temple property even when the Temple is standing? Once it is slaughtered there are no longer any restrictions about how the m eat may be eaten. There is no remnant of its initial sanctity, for it is even permitted to feed it, the flesh of the firstborn, to a gentile as the Gemara teaches in a Braita in Perek Kol P’sulai Hamukdoshin (B’choros 33a), that it, the flesh of a blemished firstborn, is compared by the verse to a deer and a gazelle. These are undomesticated animals and are never offered as a sacrifice. Their flesh never has any status of sanctity at all. When the Torah compares flesh of a disqualified firstborn to a deer and a gazelle it is saying that there is no remnant of its initial sanctity at all and should therefore not be considered Temple property, rather private property. 
  
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  If [it is] in accordance with the Rabbis. In order to avoid confusion, see Rashi here ד"ה אי אליבא דרבנן where he says that according to the Rabonon a muad who pushes another ox into a bor must pay half of the damages and a tam pays only a quarter and the bor owner is exempt. See Maharam as indicated in the gloss who says that this is a misquote of Rashi, as can be seen from this Tosafot, where Rashi is quoted as saying that a muad must pay the entire damages and a tam pays half. This point is central to Tosafot’ critique of Rashi as we will soon learn.The Gemara is analyzing R’ Abo’s statement that when a sh’lomim damages, payment is made from its flesh and not from its sacrificial parts. Ultimately the Gemara interprets this statement as teaching us that the victim cannot collect from the flesh for the damage attributable to the sacrificial parts.For example: the flesh of a sh’lomim is worth one hundred fifty dollars and its sacrificial parts are valued at fifty dollars. The damage was one hundred dollars. There quarters of the damage is attributed to the flesh and one quarter to the sacrificial parts. The victim can collect only half of the damage that is attributable to the flesh, which is seventy five dollars. See Rambam, laws of nizkay momon 8, 3, who says that the victim can eat half of the flesh of the sh’lomim. Even though all of the flesh of the animal participated in the damage, one cannot collect that portion of the damage which is attributable to the sacrificial parts from the flesh. The victim will lose twenty five dollars.The Gemara views this situation as if there are two partners jointly damaging the victim shor. This situation is comparable to a dispute between the Rabonon and R’ Nosson later on 53a that deals with damages that are done by two parties, an attacking ox and a bor. An attacking ox pushed his fellow ox into a bor. The Rabonon hold that only the shor owner is liable and R’ Nosson holds that there is shared liability. The Gemara wonders why R’ Abo needed to teach us this ruling that the flesh does not assume the liability of the altar parts, and examines his statement in view of the dispute between the Rabonon and R’ Nosson.In order to understand this Tosafot properly we must learn the Gemara on 53a together. I will define each step of the Gemara, so that we will be able to refer to it easily as we proceed to learn the Tosafot.A) The Gemara quotes the Mishna on 52a: An ox upon hearing the sound of a workman digging in the bor fell into a bor. The bor owner is liable.B) The Gemara asks: Why is the bor owner liable? We should say that the digger caused the shor to fall into the bor. (The digger is not liable because his damage is indirect, however the bor owner should be exempt because the digger caused the shor to fall into the bor.)C) Rav Shimi bar Ashi answers: This Mishna is the opinion of R’ Nosson who says (as opposed to the Rabonon) that the bor owner does damage and when one cannot collect from one of the partners, the digger (because his action was indirect), the payment is extracted from the other partner, the bor owner.D) The Gemara explains Rav Shimi: As we learned in a Braita: an attacking ox that pushed a victim ox into a bor, the shor owner is liable and the bor owner is exempt. R’ Nosson says: the shor owner pays half and the bor owner pays half.E) The Gemara asks: But we have learned in another Braita that the shor owner pays a quarter and the bor owner pays three quarters?F) The Gemara answer: There is no contradiction. The Braita that says the shor owner pays a quarter and the bor owner three quarters is speaking about a tam. The Braita that says each pays half is speaking about a muad.G) The Gemara asks: What does R’ Nosson hold about a tam? If he holds this one did the entire damage and this one did the entire damage, the tam should pay half, because he is liable for half of the total damages and the bor owner should pay half. And if he holds that each partner did half of the damage, the shor should pay a quarter and the bor a half and the other half should be the victim’s loss!H) Rovo answers: R’ Nosson was judge and plumbed the depths of the law. Actually he holds that each of the partners did the entire damage and as to your question: each one should pay half? That is not so because the shor tam owner says to the bor owner: If I pay half what did my partners help me? Did I gain anything by your being involved in the damage? (The exact meaning of Rovo’s answer will be discussed on 53a.)I) Alternatively, Rovo answers: Actually, R’ Nosson holds each partner does half the damage. And as for your question: The bor owner should pay half and the shor owner a quarter and the last quarter should be the loss of the victim? This is not so, because the victim shor owner says to the bor owner: I found my victim shor in your bor. You killed him. What I can collect from the shor owner, I will collect. What I cannot collect from him, I will collect from you! (The exact meaning of Rovo’s answer will be discussed on 53a. See Tosafot there ד"ה לעולם)The Gemara there on 53a has a lengthy discussion about how we view this damage. (G) Do we say that each of the parties, the attacking shor and the bor, each contributed half of the force that killed the victim ox and there should be shared liability, or do we say that each party independently contributed sufficient force to kill the victim ox, and there should be double liability. Obviously the victim need not be paid twice. We will soon see in this Tosafot that the concept of double liability might be applied when full payment cannot be extracted from one of the parties. Will the other party have to pay in full, since we do attribute all of the damage to both parties? An in-depth study of that Gemara would be very helpful in understanding this Tosafot.Rashi explains: If he, R’ Abo, follows the opinion of the Rabonon, (D) who argue with R’ Nosson, in Perek Haporoh (below 53a), in regard to an ox who pushed his fellow ox into a bor, and they, the Rabonon, say that a [tam] ox pays half of the damages and the bor owner is exempt, so we see that when one cannot be paid the second half of the damages from the shor owner because his shor is a tam and he is only liable for half payment, he, the victim, is not paid from the bor owner, even though1<i class="footnote">The Gemara will introduce this thought into the give and take of the discussion at a later point in the Gemara. At this point the Gemara was as of yet unaware of this argument as Tosafot will soon explain. See Tosafot 53a ד"ה לעולם for a thorough explanation of this argument.</i> it was in it, the bor, that the damaged shor was found.And if so, it is certain that when comparing the case of sh’lomim that damaged to the attacking ox and the bor one must conclude that one cannot collect the corresponding share of the damages attributable to the sacrificial parts from the flesh. Until here is his, Rashi’s, wording,משמע מפירושו שהשור עושה כל ההיזק ובעל הבור אין עושה כלוםIt is to be understood from Rashi’s explanation that the shor, who pushed his fellow ox into the bor, does all of the damage and the bor owner does nothing of the damage.Therefore, the muad shor pays in full and the tam shor pays half damages and the bor owner is exempt.It is for this reason that he can deduce that when one is not paid from one of the partners to the damage, he is not paid from the other, such as in this case where the victim is paid only half from the shor owner and is not compensated at all from the bor owner, only from the case of the tam, who pays only half, and not from the muad, who pays in full. Since the muad pays in full, there is no reason to collect from the bor owner.So too, does Rashi clearly explain later in Perek Haporoh (53a, Rashi ד"ה את). וז"ל אבל רבנן בתר מעיקרא אזלי וסברי דבעל השור כוליה הזיקא קעביד הלכך במועד בעל השור משלם נ"ש ובתם משלם חצי נזק (ובעל השור) ופלגא מפסידAnd this is his wording: But the Rabonon2<i class="footnote">בתר מעיקרא אזלי -- literally means ‘they go according to the beginning’. Our translation intends to make the meaning of Tosafot as clears as possible.</i> rule on the basis of the initial contact between the two oxen, and they hold that the shor owner did the entire damage. Therefore, when the attacking shor is a muad, the shor owner pays in full and when the shor is a tam, he, the shor owner, pays half and the victim shor owner loses half.We must now keep in mind that the Gemara has drawn a comparison between the sh’lomim that damaged, where there are two ‘partners’ to the damage, the flesh and the sacrificial parts and the shor that pushed its fellow shor into a bor where there are also two partners to the damage, the attacking shor and the bor. The flesh is comparable to the attacking shor and the sacrificial parts to the bor.Tosafot will now present his difficulties with Rashi’s position:And this is difficult to R’I: How does the Gemara deduce that one cannot collect damages from the flesh of the sh’lomim that corresponds to the altar parts, from the ruling that the victim shor owner is not paid anything from the bor owner when the attacking shor is a tam and he, the victim, loses half? For there in the case of the attacking shor who pushed the victim shor into a bor, the bor owner is exempt because the bor did not do the damage at all according to Rashi’s explanation.However, in the case of the sh’lomim that damaged, where the flesh also involved in the damage as much as the sacrificial parts, we might rule that when payment cannot be made from the sacrificial parts, because they must be burned on the altar, one should be paid from the flesh, which was equally involved in the damage, whereas in the case of a victim ox pushed into a bor by an attacking ox, it is only the attacking ox that damaged and not the bor, therefore the bor owner need not pay, even when payment cannot be extracted from the attacking shor.It seems that there is no basis for a comparison between the flesh of a sh’lomim and the bor owner of the Braita on 53a, according to Rashi’s explanation of the Rabonon. The bor did not participate in the damage while the flesh parts of the sh’lomim definitely did.Tosafot holds at this point in the Gemara3<i class="footnote">The Gemara has not yet introduced the claim – ‘I found my victim ox in your bor’. It is only after the Gemara introduces this claim on 53a, that the Gemara can tolerate the idea that the bor owner might have to pay three quarters of the damages, even though he is responsible only for half. See next Tosafot.</i> it is only possible to say that if the damage cannot be paid from one of the partners, i.e. from the sacrificial parts, it must be paid from the other partner, i.e. the flesh, only if we think of each partner to the damage as doing the entire damage. It is because of the concept of double liability that we can entertain the idea that if payment cannot be extracted from one of the partners, the other partner must pay in full because he did the entire damage. If we should hold that each party to the damage does only half of the damage, that is the flesh did half of the damage and the sacrificial parts did the other half, it is impossible to require that the owner of the flesh pay more than it actually damaged. This approach to understanding damages caused by two parties is discussed at length later on 53a, where the Gemara debates this issue. (G)Tosafot therefore, needs to prove that at this point the Gemara does in fact hold that each partner to the damage, does the entire damage.For it is compelling that the Gemara now holds that when two parties damaged, we view it as if this one did the entire damage and that one did the entire damage, since the Gemara at this point did not yet think of the reason mentioned later, that the shor victim’s owner can say: I found my ox in your bor. A bit later the Gemara will introduce this thought into the argument, but at this point, the Gemara was unaware of it. If so, the Gemara could not have held that each of the partners to the damage only does half of the damage. For if each individual damaging partner does only half of the damage, why, when the ox is a tam, should the bor owner pay three quarters according to R’ Nosson, which is more than it actually damaged?And without an overriding reason, such as the Gemara eventually says: “I found my victim shor in your bor”, which the Gemara was as of yet unaware, we should not say that one of the parties should pay more than it actually damaged as is evident in Perek Haporoh.The Gemara there asks: (G) If we hold that each partner to the damage, such as in the case of an attacking shor that pushed a victim shor into a bor, only does half of the damage, why does R’ Nosson hold that the bor owner must pay three quarters of the damage? We see that the Gemara holds that logically one cannot be held responsible for more than he actually damaged. The Gemara then (I) introduces the thought that the victim shor owner can argue “I found my shor in your bor etc.” It is only after the Gemara cites this argument that it can accept the idea that the bor owner might pay more than it actually damaged. In our Gemara this thought is first introduced later. At this point the Gemara was unaware of it. If so how could the Gemara possibly understand that R’ Nosson holds that the bor owner must pay more than half, if it does not hold that each party does the entire damage?Tosafot introduces another difficulty that R’I has with Rashi’s explanation. We must keep in mind that Rashi’s explanation is built upon his interpretation of the position of the Rabonon that when a shor muad pushes his fellow shor into a pit, the shor owner must pay in full and when the attacking shor is a tam he pays only half. What is the basis for this interpretation?And furthermore: How does the Gemara know that according to the Rabonon, when the attacking shor is a tam that the shor owner pays half and the bor owner is exempt? This is the ruling Rashi uses as proof that the Rabonon hold that even when full damages cannot be extracted from the shor owner, the bor owner need not pay.Perhaps, when the attacking shor is a tam, the shor owner pays only half and the bor owner pays the other half? Thus the basis for Rashi’s proof that when payment cannot be extracted from the tam shor owner, the bor owner need not pay, is unfounded. And the Rabonon who say that the bor owner is exempt are speaking of when the attacking shor is a muad. Since the Rabonon hold that it is the attacking shor that killed the victim shor, the muad pays in full and the bor owner is exempt. However, when the attacking shor is a tam, and he pays only half, the bor owner does in fact have to pay half precisely because full payment cannot be extracted from the tam’s owner.Tosafot has now explained his logical argument with Rashi’s explanation and also his apprehension with Rashi’s source.R’I offers his explanation of our Gemara:(Note that R’I’s explanation is based on an understanding of the Rabonon’s position that appears in our text of the Rashi.) And it appears to R’I that the Rabonon who say: (D) The shor owner is liable and the bor owner is exempt, mean that the attacking shor owner pays half for a muad and for a tam he pays a quarter, and the bor owner is totally exempt, in either case because the Torah holds the bor owner liable only when the shor fell in on its own, as is written (Shemot 21, 33) “and a shor will fall there – into the bor”, but when others push him, the shor, into a bor, the bor owner is exempt.Tosafot has informed us of the source for the exemption of the bor owner when an animal is pushed into his bor. This differs with Rashi’s explanation that the reason for the exemption is because the bor did not do the damage. But we must still know how we see from the Rabonon, that when payment cannot be extracted from one of the partners to the damage that the other need not pay. If we maintain that this is seen from the fact that the bor does not pay for half when the shor is a tam and only pays half, then we have not solved Tosafot’ initial problem with Rashi’s explanation. Tosafot argued that the reason for the bor owner’s exemption is because the bor did not participate in the damage, but according to Tosafot as well, there is a reason to exempt the bor owner and that is because the Torah specifically exempted him. How do we see that when there is no specific exemption, such as when the flesh of a sh’lomim participates in damaging that the flesh owner need not pay for the damage done by the sacrificial parts? Tosafot will now deal with this issue:And here where the Gemara is attempting to prove that the Rabonon hold that when one cannot be paid from one partner, he cannot extract payment from the other partner, this is the explanation: but they, the Rabonon, say, when one cannot be paid from the bor, because he is exempted by the verse, he, the victim owner, is not paid the second half from the shor owner, even though they, the Rabonon, hold that in a damage by partners, this one did the entire damage and this one etc. (did the entire damage). We see from the fact that the shor muad owner does not pay full damages even though we view his ox’s involvement as doing the entire damage, that when there are partners to a damage and payment cannot be extracted from the bor owner, because of his specific exemption, the shor owner need not pay in full.By comparison it is plain that we do not collect from the flesh of a sh’lomim for the corresponding sacrificial parts. If so, what is R’ Abo teaching us?Tosafot explanation is based on interpreting the statement of the Rabonon as saying that the shor muad owner is only liable for half, as opposed to Rashi who says that he is fully liable. It is from the half liability of the muad shor owner that Tosafot proves that he does not assume the obligation for payment of the second half from the bor owner.On 53b, (D) where the Braita informs us of the dispute between the Rabonon, the Braita clearly says that according to R’ Nosson the shor owner pays half. The opinion of the Rabonon is a bit vague. The Rabonon there say that the shor owner is liable and the bor owner is exempt. The extent of liability according to the Rabonon is not clarified within the Braita.If you ask: How does the Gemara know that the statement by the Rabonon, “and the shor owner is liable” does not mean that he is fully liable? Perhaps it means that he is fully liable as Rashi says and the Gemara’s proof is from when the attacking shor is a tam, who pays only half, as Rashi said?We can answer: That if the Rabonon and R’ Nosson were arguing about the extent of the payment of the shor owner, they, the Rabonon, should have clarified their position, and since they did not clarify, we can assume that they agree with R’ Nosson on this issue, the half liability of the shor owner.And furthermore, there is another reason the Gemara assumes that the Rabonon agree with R’ Nosson that the shor muad owner pays only half, for if it is so that the Rabonon hold the shor owner liable for the entire damage, R’ Nosson should have said that he is liable only for half. His statement that “the shor owner is liable for half” is viewed as proof that there is no dispute between him and the Rabonon in this matter.Thus, we have a clear statement from the Rabonon that when the attacking shor is a muad, his owner pays only half and the bor owner pays nothing. Why doesn't the shor owner pay the second half since the Gemara at this point holds that each partner does the entire damage? It is evident that the Rabonon hold that when payment cannot be extracted from one of the partners of the damage, it is not extracted from the other. So too, when a sh’lomim damages and payment cannot be extracted from the sacrificial parts because they are burned on the altar, payment is not extracted from the flesh owner to cover the corresponding sacrificial parts.
  
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  I found my ox in your pit. The Gemara is saying that R’ Abo who teaches that one cannot collect the damages attributable to the sacrificial parts from the flesh may follow the opinion of R’ Nosson, who holds that the bor owner does in fact pay for the damages done by the tam ox together with the bor when payment cannot be extracted from the tam ox. That is because the bor can be designated as the primary damager since the carcass of the dead victim shor is located in the bor.However, in the case of the sh’lomim that damaged, neither partner can be designated as the primary damager, thus the damages attributable to the sacrificial parts cannot be collected from the flesh. It is specifically in regard to bor that he, R’ Nosson, says that the bor owner pays the portion of the damage that the shor owner does not pay, even though we hold that each of the partners does the entire damage,1<i class="footnote">Tosafot is struggling with an extremely difficult problem. We have mentioned earlier that if we believe that each partner does the entire damage, there is double liability. As we explained earlier, this does not mean that the victim should be paid twice, but it does mean that if one of the partners cannot pay for whatever reason, the other partner should pay in full because he did in fact do the entire damage. At this point in the Gemara, Tosafot previously said, the Gemara subscribes to the concept of double liability. If so why should the rule that one partner assumes full liability be limited to a bor when it is a partner with a shor, it should theoretically apply to any combination of partners. See אוצר מפרשי התלמוד on this Tosafot and in note 166, where he quotes ברכת שמואל סי' י'ב who discusses this problem and Tosafot solution. We can now understand why Tosafot suggests that at this point the Gemara may be working with the opposing opinion that each ‘partner’ contributes only half of the damage.</i> and the paying party should assume the payment of the non-paying partner, because he did in fact do the entire damage, it is possible to distinguish between shor and bor for this reason that the carcass was found in the bor which designates the bor as the primary damager, but when there is any other equal partnership such as the flesh and sacrificial parts of a sh’lomim one of the ‘partners’ does not assume the obligations of the other partner.However, as soon as the Gemara knows the logic of the argument ‘I found my victim ox in your bor’, the Gemara can hold that each of the partners does only half of the damage, as the Gemara says in Haporoh (ibid.), and I will explain this matter there, with the help of Hashem. 
  
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  Rava says [concerning] a thanks-offering that caused damage. Rovo here assumes the position that a Todoh offering that damages is liable. This position assumes that kodshim kalim-sacrifices of lesser sanctity are the property of their owners and not the property of the Most High. This of course follows the opinion of R’ Yosee Ha’Gleelee (earlier 12b). If we were to consider the Todoh as temple property, there would be no liability for damages.Earlier on 13a, Rovo disagreed with those who say that our Mishna follows the opinion of R’ Yosee Ha’Gleelee and says that when our Mishna speaks of ‘property that is not subject to m’eeloh violation’, it simply means that it is private property. Our Mishna is not an indication that kodshim kalim is considered private property.It seems that Rovo is not content with saying that our Mishna follows the opinion of R’ Yosee Ha’Gleelee, because this would then be a ruling that the halochoh is in accordance with his opinion. It seems that Rovo does not want to accept R’ Yosee Ha’Gleelee’s minority opinion as the halochoh.This is a bit ironic as Tosafot points out, because here Rovo is clearly following R’ Yosee Ha’Gleelee, while earlier it seems as if he was rejecting that opinion. Tosafot points out the difficulty.Even though Rovo explained that our Mishna when stating that a condition for liability is that the casualty be such property that has no m’eeloh violation, is excluding any property that has even the fundamental requirement for the m’eeloh violation, which is that it possesses any level of sanctity, even if it is only kodshim kalim, and one is liable only for damaging private property, and he does not interpret our Mishna as following R’ Yosee Ha’Gleelee, here, where Rovo is saying that a Todoh that damages is liable, we are compelled to say that this ruling of Rovo was said according to R’ Yosee Ha’Gleelee. According to the Rabonon a Todoh that damages is not liable because it is temple property.1<i class="footnote">Tosafot points out the contradiction between the two statements of Rovo but does not tell us how it might be resolved. See Rosh 15, who says that when the Gemara earlier on 13a, remained with an unanswered question on Rovo’s explanation of our Mishna, Rovo retracted from his position. This argues the Rosh can be seen from our Gemara where Rovo’s is clearly following R’ Yosee Ha’Gleelee. See Rambam Hilchos Nizkay Momon 8, who also rules in accordance with R’ Yosee Ha’Gleelee. See לחם משנה there who points out that the Rambam’s ruling is based on Rovo’s ruling here. See אוצר התוספות note 2167, who suggest other approaches to understanding Rovo’s position about a Todoh that damages.</i>
  
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  As it is stated: “And his owner was forewarned and [the ox] killed [a man].” On the surface it appears that R’ Y’hudoh is saying that the killer ox cannot be ownerless at the time of its trial, because the words ‘והועד בבעליו-and there will be testimony against the owners’, implies that at the time of the trial the shor must have an owner. This would be effective proof that if one relinquishes ownership or sanctifies the shor after it gored, there is no liability.Tosafot finds difficulty with this understanding of R’ Y’hudoh. Chronologically speaking, the verse והועד בבעליו, occurs prior to the event of והמית איש, because the verse והועד בבעליו is not a description of the testimony that is needed for a death sentence for the ox and its master’s liability for kofer after it kills, rather it refers to the warning of its owner that establishes the ox as a muad which occurs before the ox kills. The verse is not at all discussing the trial after the goring, but rather the process that renders him a muad. There is no indication in this verse that at the trial after the goring there must be an owner.נראה דלאו מוהועד קדרישIt appears that R’ Y’hudoh is not expounding the verse והועד – and there was testimony against the shor owner, because this verse והועד is not speaking about the testimony which is done in order to stone the ox after the goring. Rather, it is speaking of the testimony needed to warn the ox owner and establish that the ox is a muad and that his owner is liable for kofer.Tosafot offers an explanation:אלא מסיפא דקרא קדריש דכתיב והשור יסקלRather, it is the end of the verse, ‘השור יסקל-the ox must be stoned’, that he, R’Y’hudoh, is expounding.1<i class="footnote">Tosafot’ explanation is a bit perplexing. How can we see in the words השור יסקל that the stoned ox has an owner? See אבן האזל פ'ח מהלכות נזקי ממון who explains that Tosafot means that the ruling cannot be derived from והועד בבעליו alone. We must also have the verse השור יסקל. Since the Torah placed the words השור יסקל adjacent to the words והועד בבעליו it is indicating that at the time of stoning which can take place only after a trial there must be an owner. Tosafot may also mean that we must look at the end of the verse which reads וגם בעליו יומת. This teaches us that the master is liable for death by Heaven. This judgment can be redeemed by kofer. The owner is referred to as ‘his, the shor’s owner’. This indicates that there must in fact be an owner.</i>וכן משמע לישנא דפריך והא השור יסקל בגמר דין הוא דכתיבAnd this can be understood from the wording of the Gemara when it challenges the ruling that it is only required that there be an owner when the shor is brought to trial but not throughout the trial – but the words השור יסקל-the ox must be stoned are written about the conclusion of the trial? It is only after the conclusion of the trial that the verdict is carried out. We see that the Gemara refers to the words השור יסקל as the source of the ruling. If the Gemara was introducing a new source, it would have indicated that the words השור יסקל are also a source that must be considered. The Gemara’s reference to these words indicates that it is analyzing the original source, not introducing a new one, which proves that the original derivation was from the words השור יסקל.
  
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  [Regarding] a courtyard [of two] partners [one of them is] liable [for damage caused by] eating or trampling. The Gemara presents what seems to be a dispute between Rav Chisdo and R’ Elozor about a jointly owned courtyard. Rav Chisdo says that there is liability for shain and regel and we do not say that since both partners have the right to be here it is equivalent to a public domain where shain and regel are exempt. R’ Elozor holds that a jointly owned courtyard is treated as a public domain and shain and regel are exempt there.During the give and take of the Gemara on 14a, the Gemara will present a Braita that clearly says that there is liability for shain and regel in a jointly owned courtyard. This is clearly a refutation of R’ Elozor. R’ Elozor defends himself by introducing another Braita that says that shain and regel are exempt in a jointly owned courtyard.It is at this point in the Gemara that there are two different texts in the position of R’ Elozor. (A) In our text the Gemara is saying that R’ Elozor holds that these two Braita are disagreeing with each other and that his opinion follows the second Braita. Subsequently, the Gemara shows how Rav Chisdo is of the opinion that the Braitas do not necessarily contradict each other.What emerges according to this text is that R’ Elozor holds that in all cases of a jointly owned courtyard one is exempt for shain and regel. Rav Chisdo differentiates between a jointly owned courtyard where both parties may bring oxen and fruits and a courtyard where they may only store fruit. In the latter there is liability for shain and regel, because one does not have the right to bring his animals into that courtyard. When both have the right to bring their oxen into the courtyard, there is no liability for shain and regel.According to the variant text R’ Elozor is defending himself by saying: there are in fact two Braitas on the subject. (B) Do you think that they disagree with each other? Certainly they do not, and he shows us how to resolve the two Braita by explaining that one Braita is speaking about a courtyard where they can only store fruits and vegetables. In this case we rule that one is liable for shain and regel, because neither partner had the right to bring an animal into the courtyard. The second Braita is speaking of when both partners have the right to bring their oxen and produce into the courtyard. It is then that they are exempt for shain and regel since they had the right to bring their animals into the courtyard.Since R’ Elozor is saying that they are exempt from shain and regel only when both have the right to bring their animals into the courtyard, Rav Chisdo who is arguing with R’ Elozor must be saying that even when both partners have the right to bring their animal into the courtyard, they are liable for shain and regel. It is Rav Chisdo according to this text who believes that the Braita cannot be resolved.At the beginning of our Gemara, in addition to presenting the differing opinions the Gemara shows how each of the disputants will explain the sentence of the Mishna that speaks of a domain that is designated for both the damager and the victim. Rav Chisdo said that it is to be understood as saying: ורשות הניזק והמזיק that a jointly owned courtyard is different than a domain of the damager and when damaging there כשהזיק חב המזיק one is liable for shain and regel. R’ Elozor says that the Mishna is to be understood as follows: ורשות הניזק והמזיק and a jointly owned domain is also like the domain of the damager and one is exempt for shain and regel. The next statement of the Mishna כשהזיק חב המזיק is independent and teaching us about liability for keren.Tosafot will now explain the Gemara according to both texts.The jointly owned courtyard that they, Rav Chisdo and R’ Lozor, argue about is to be used exclusively for produce and not for oxen, as is evident at the end of the Gemara, where the Gemara says:That they are arguing about the question of R’ Zeira, who wondered how even a courtyard where the damager only has the right to store produce can be called ‘another’s field’ and the response of Abaye, who answered that since he is not allowed to bring in his oxen, it is considered ‘another’s field. R’ Elozor holds like R’ Zeira’s question and cannot see how one can be liable for shain and regel in a jointly owned courtyard when he has the right to store his produce there and Rav Chisdo says one is liable, because he may not bring his oxen into the courtyard. The question of R’ Zeira and response of Abaye is relevant only to a courtyard where one may store his produce and not bring his oxen. This courtyard must be the subject of their disagreement. When the courtyard is designated for both produce and oxen, Rav Chisdo agrees that there is no liability for shain and regel.It now emerges that Rav Chisdo agrees that there is a jointly owned courtyard where there is no liability for shain and regel and that is when it is designated for produce and oxen.And according to this understanding of Rav Chisdo’s position, that he does in fact agree that there does exist a jointly owned courtyard where one is not liable for shain and regel, Rav Chisdo could have explained the Mishna as R’ Elozor explained it. And he will explain that the words ורשות הניזק והמזיק-and the domain of the victim and the damager, are a continuation of the previous statement that one is not liable for shain and regel in a jointly owned courtyard, when it is designated for produce and oxen, where Rav Chisdo admits that one is exempt and the words כשהזיק חב המזיק are a new sentence that teaches us about the liability of keren as the Gemara explained according to R’ Elozor.1<i class="footnote">Tosafot does not tell us why Rav Chisdo chose to say that the Mishna is speaking of a courtyard where one is liable for shain and regel as opposed to a courtyard where one is exempt. Perhaps Rav Chisdo is more comfortable with the words כשהזיק חב המזיק as the end of a sentence, rather than as an independent superfluous sentence.</i> See (A) in our introduction.And our text below (14a) is: R’ Elozor could answer: and if you analyze this properly, aren’t the Braitas disagreeing on this subject. R’ Elozor is not attempting to reconcile the Braitas. It is his opinion that they disagree and he personally follows the second Braita. The resolution that appears in the Gemara is the opinion of Rav Chisdo. R’ Elozor, however, holds that in all cases of a jointly owned courtyard one is exempt for shain and regel.Tosafot now introduces the variant text. See (B) in our introduction.ומיהו לספרים דגרסי לקמן ותסברא מתניתין מי פליגיHowever, there are manuscripts that emend the Gemara later (14a) as follows: and upon proper analysis, are the Braitas arguing? ובסוף גרסי אלא כי תניא ההיא וכל זה מדברי רבי אלעזר And towards the end, after citing R’ Shimon ben Elozor’s Braita which says that one is exempt for shain and regel in a jointly owned courtyard, they emend ‘אלא כי תניא ההיא’ – ‘rather, what that Braita is saying’ which indicates a reconciliation of the two Braitas, and all this is the words of R’ Elozor, who is reconciling the Braitas. According to this text, it is R’ Elozor who holds that there are two types of jointly owned courtyards. When the courtyard is designated for produce alone, he agrees that one is liable. It is only when it is designated for both produce and oxen that he holds that one is exempt. Perforce, Rav Chisdo who argues with R’ Elozor, must be saying that even when the courtyard is designated for oxen as well, one is liable for shain and regel, for it is only in that case that R’ Elozor holds one exempt. And we must say that they, Rav Chisdo and R’ Elozor, argue about a courtyard that is designated for produce and oxen and even in this case where the damager has the right to bring his oxen into the courtyard, Rav Chisdo holds that he is liable.And this is the explanation of the variant text: And upon analysis do they, the Braitas argue etc. about this matter? Rather, they definitely do not argue and that which it teaches etc. [that they are exempt is when the courtyard is designated for oxen as well and they are liable when it is designated for produce only.] According to Tosafot approach in the variant text, until almost the very end of the Gemara the dispute is about a courtyard designated for produce and oxen. At the very end the Gemara will change its position. And according to this variant text, the beginning of this passage will not be the same as the conclusion, where the Gemara says that they, Rav Chisdo and R’ Elozor, argue about the question of R’ Zeira and the response of Abaye. As explained earlier R’ Zeira asked how can a jointly owned courtyard where the damager has the right to keep his produce be thought of as ‘another’s field’. Abaye answered: that since he may not bring his oxen into the courtyard, it may be considered ‘another’s field. This question and answer is obviously discussing a courtyard which is designated for produce only. There is a clear statement by the Gemara that the dispute is about this courtyard and not about a courtyard that is designated for oxen as well. This contradicts the beginning of the passage where it seems that the dispute is only about a courtyard designated for both.
  
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  When one causes damage, the one liable for the damage is obligated; [this clause serves] to add [that this includes] goring. According to R’ Elozor the words כשהזיק חב המזיק, are an independent superfluous sentence. Shmuel holds that it is needed to teach us about the liability of keren, while Rav holds that it comes to teach us about the liability of an ox deposited with a guard as presented by a Braita that explains these words of the Mishna. Rav Chisdo said that these words are the conclusion of a sentence that begins with the discussion of shain and regel in a jointly owned courtyard. It is not a superfluous sentence. If you ask: And according to Rav Chisdo, who says that these words are the conclusion of a sentence and not superfluous, how from where does he know to include keren according to Shmuel, who says that keren was not mentioned earlier in the Mishna, and all these rulings mentioned in the explanatory Braita according to Rav? Rav said that keren was mentioned earlier in the Mishna. כשהזיק חב המזיק is not needed to teach us about keren. It comes to teach us all of the rulings in the explanatory Braita.And furthermore, even if we should find an allusion to teach us about keren and the other rulings of the Braita, the Braita that teaches that כשהזיק חב המזיק is superfluous to include all these rulings, is a contradiction to Rav Chisdo. The Braita is clearly saying that כשהזיק חב המזיק is an independent superfluous sentence, while Rav Chisdo says it is the conclusion of the previous sentence?Tosafot answers:And one can answer: That according to him, Rav Chisdo, there is also a superfluity in the text of the Mishna, for the Mishna could have said: and in a common domain of the victim and the damager, one is liable. It did not have to say ‘<u>when it damages the damager</u> is liable’. That superfluity is sufficient to teach us the liability of Keren according to Shmuel and all the rulings of the explanatory Braita.There is one point that remains difficult: But this is difficult, that the Braita is a difficulty to Shmuel. The Braita, whose function is to explain the words כשהזיק חב המזיק, does not mention that it comes to teach us about the liability of keren.
  
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  For example, where [he] undertook the responsibility of safeguarding the body of [the ox]. The Gemara quoted an explanatory Braita that says כשהזיק חב המזיק, comes to teach us that when an ox is deposited with one of the guards, there is liability. The text of the Braita is very vague. It is not at all clear if the deposited ox was the damager or the victim. The Gemara analyzes all the possibilities. It asks: If the borrowed ox damages an ox belonging to a third party, it is the borrower who is liable. When he borrows an ox, he is not only responsible for damages to the ox, but for damages done by the ox. If so, when it damages the borrower’s ox, why should the lender be liable? The Gemara answers: The Braita is speaking of when the borrower accepted the responsibility of damages that might happen to the borrowed ox but not for the damages that the borrowed ox might cause. Therefore, even when the victim of the borrowed ox is the borrower, the lender is liable, because the responsibility for the ox’s damages remains with him.Tosafot speculates about another situation that the Gemara might have offered as a solution to the problem of the Braita:The Gemara could not have said that the Braita is speaking of the reverse situation. For example: the borrower’s ox damaged the lender’s ox and the borrower accepted responsibility for damages that the ox might do, but did not accept responsibility for harm that might befall his, the ox’s, body. In this case the borrower would not be liable for full payment, because he did not assume responsibility for guarding the ox from being damaged. He would remain liable for half-payment if his ox is a tam, just as he would be liable if his ox damaged any other ox. The reason the Gemara does not consider this possibility is, because it is an unlikely situation. Usually, when one lends his ox to another person he might be lenient about damages that the ox does, but he will insist that the borrower be liable for damages that happen to his ox.Tosafot points to a Gemara that seems to contradict this statement:And even though the Gemara at the end of Shor Shenogach Arbo’oh Va’Chameeshoh (below 45b) says that when the proposed guard was aware that he, the shor, regularly gored, generally, in this type of situation, the guard accepts upon himself responsibility that he, the shor, will not go and damage others. The guard does not accept upon himself responsibility for others that might come and damage him. It is evident that there are situation where one accepts the responsibility for damages that an ox might do to others but not for what might be done to the ox. If so, why doesn't our Gemara consider this possibility as a way of explaining the Braita? Tosafot explains: our Braita is dealing with a borrower, whereas the Gemara on 45b is speaking of other guards.When the guard is a borrower, it is not feasible to say that we are speaking of such a case, because usually a borrower accepts complete responsibility for what might happen to the ox that he borrowed. One might refuse to accept responsibility for what the ox might do to others, especially if the ox has a reputation for goring, but since when borrowing he is the sole beneficiary, he almost always would assume responsibility for what might happen to the ox. 
  
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  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 is that he is not obligated to secure the ox on loan, so that it does not damage a third party’s ox, 1<i class="footnote"> דעלמא – literally of the world.</i> 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.
  
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  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<i class="footnote">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.</i>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.
  
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  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<i class="footnote">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.</i> 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<i class="footnote">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.</i> 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 לשווריםAnd 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.
  
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  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: that the beginning, the first rule, is in accordance with R’ Tarfon and the conclusion, the fourth rule, is in accordance with the 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 rule is not needed at all. For in regard to shain and regel that this area is courtyard of the nizok can be understood from the first rule: in any 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 considered keren in a public domain can be understood from the third rule that says that in 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. 
  
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  A cow that damaged a garment, and a garment that damaged a cow.Rashi explained: That they damaged each other. The cow trampled the garment in the courtyard of the nizok and is liable for regel. The cow tripped on the garment and broke a leg in a public domain. The garment is a bor and its owner is liable for damages to the cow.The Braita is teaching us: We evaluate the damage in currency and whoever did the greater damage must pay the difference.1<i class="footnote">In our version of Rashi these few words are in parentheses. See also the notes of the Bach, who seems to be emending the text of Rashi to be understood, that we are not discussing one story, but two separate incidents.</i> Tosafot understands that Rashi is speaking specifically about a case where the cow and the garment damaged each other simultaneously and the Braita is teaching us that the two damages do not cancel each other out. We must evaluate each damage individually and whoever damaged more is liable to pay the difference.This explanation presumes that the damage was simultaneous, which means that this story happened in one domain. Tosafot will show that it is impossible that the damages occurred in the same place, because the primary damagers that are involved in this case, regel and bor, are not liable in the same area.This is difficult, because you are compelled to say that the cow that damaged a garment occurred in the courtyard of the nizok and the damage was either with intent to damage and it is keren or as it walked and it is regel and the garment that damaged a cow must be in a public domain, because the liability is because of bor, which is liable only in a public domain. It cannot be speaking of a bor in a private domain, because the cow has no business being there.2<i class="footnote">See Maharsho who suggests that it may be speaking of a courtyard where both have the right to bring in their oxen and only one has the right to display his garment. The garment could be liable as bor and the cow as regel according to Rashi’s opinion on 14a, that in this situation one is liable for regel. Tosafot is following the opinion of Rabbeinu Tam who holds that in this situation one cannot be liable for keren. See Rosh.</i> For it is impossible to also set up the case of the cow damaging the garment in a public domain and the liability would be because of keren, which is also liable in a public domain, for if it was so, that the garment was left in a public domain, the cow owner would be exempt for any damage to the garment, as the Gemara says later in the second Perek (20a), that whoever acts irregularly and another comes and acts irregularly against him, the second party, is exempt. Leaving a garment in a public domain is irregular because people can trip on it. When the cow then comes and damages that garment his owner is exempt. Thus, we are in a quandary, the cow can be liable for damaging the garment by keren or regel only in a private area and the garment can be liable for damaging the cow only in a public domain. This is an inherent difficulty with Rashi’s explanation.Tosafot attempts constructing another scenario to accommodate Rashi’s explanation: And even if we should explain that it so happened, that a cow damaged a garment in a courtyard of the nizok, and that garment then damaged the cow in a public domain, where bor is liable, thus, we have a situation where the cow and the garment are mutually liable even though the damages did not occur at the same time and place. The Braita would then be teaching us that the two damages do not cancel each other out. The difficulty with Rashi’s explanation still remains, because this rule, that the damages do not cancel out each other is already taught in a Mishna later in Perek HaMainee’ach (33a): If two tam oxen injured each other they pay for the excess half damages, if both are muad they pay for the excess full damages. It is clear that the damages do not cancel out each other and that each one is evaluated and the payment is the difference, which is what Rashi says this phrase in the Mishna שום כסף is coming to teach us. Why must the Mishna here teach us this ruling when it is clearly stated in the Mishna on 33a?This question per se is not a major difficulty:And one can answer: That the Mishna first teaches us about this rule in a concise manner and later in Hamainee’ach 33a, explains it in greater detail.Although Tosafot found a defense of Rashi’s explanation, he presents Rabbeinu Tam’s explanation.Rashi’s explanation is centered on the idea of mutual liability. Rabbeinu Tam holds that this is not the issue at all. Rabbeinu Tam explains: That the statement “a cow damaged a garment and a garment damaged a cow” is not one occurrence, rather, it is two different happenings, and the Braita is to be understood as saying either a cow damaged a garment or a garment damaged a cow, is what the Mishna is teaching us.Rabbeinu Tam offers support for his explanation that the Braita is not speaking of one occurrence despite the use of what appears to be a connecting 'ו'. The Mishna in Y’vomos is discussing the various procedures that a yovom, the brother of a man who died childless, may have done to his y’vomoh, his widowed sister-in-law. It is clear in that Mishna that even though each procedure enumerated is connected with a ‘ו’, they are individual procedures that the yovom did. as in the Mishna in Y’vomos (50a): he first performed chalitzoh,3<i class="footnote">When a yovom does not want to marry his sister-i-law, he may choose to perform the mitzvah of chalitzoh. This procedure is described in the Torah in D’vorim 25, 7.</i> and then he either performed maamar4<i class="footnote">Maamar is a Rabbinic Kidushin performed by a yovom. By Torah law there is no need for betrothal.</i> or gave her a get etc. It is evident that the Mishna is using the ‘ו’ of ונתן not as a connector, but rather in place of “or”. So too, in this Braita the ‘ו’of וטלית is in place of “or” and not a connector.Rabbeinu Tam holds that the stories in the Braita are not one occurrence, but two separate stories. But what is the Braita attempting to teach us? And the case of a garment damaging a cow does not come to teach us that we do not say: that the cow owner should take the entire garment because of the damage that was done to the cow, for the garment is a bor and does not pay from its body. This idea might be conceivable when the damager is a tam ox, whose payment is taken from its body, but this is totally inappropriate when discussing damage done by the garment which is bor, where payment is made from general assets of the owner. There is no reason to believe that the garment should be taken as payment.Furthermore, this too, that damages are not arbitrarily taken from the body of the damager without evaluation, can also be understood from the Mishna in Hamainee’ach that says that even when the damagers are tam oxen that do pay from their bodies, the damages must be evaluated and the greater damager pays only half the difference.Rather, says Rabbeinu Tam, that we do not say the cow should go to the garment owner as payment for the garment, comes to inform us that we rule not like R’ Akiva, who says later in Hamainee’ach (33a): that when a tam ox damages, ownership of the ox is automatically transferred to the victim’s owner. Rather, the damaging tam ox is assessed by the court and then its owner can pay cash or the body, as is the opinion of R’ Yishmo’ail, and it, the Braita that discusses an ox that damaged a garment is speaking of when it damaged by keren. And that that the garment should not go as payment for the cow, comes to inform us that the garment cannot be collected even from the heirs of the garment owner, if he dies before he paid.For one should not think that one can collect the garment itself as payment even after the death of the garment owner, even though movable objects of heirs are usually not subject to a lien to be collected for their father’s debts, as his real property is. Because one might think that that which the Torah said that payment to the damages victim is to be taken from the general assets of the damager and not from the body of the damager, such as the garment, is in order to improve the strength of the victim, so that if the damager, such as the garment, is not worth the amount of the damages, he, the victim, is paid from the general assets and cannot be reduced to accepting only the value of the garment, but in regard to one who must collect from heirs, where if he is to be paid from the general assets, it is to the detriment of the victim, because the movable objects of heirs are not subject to any lien and cannot be collected for their father’s debt, however, if he, the victim, is to be paid from the body of the damager, which in this case is the garment itself, he will collect even from heirs, because it is as if he seized them when the garment owner was still alive, since the Torah designates the garment to be used as payment for the damages, and I might think that in this case, where it is to the advantage of the victim, he is paid from the body of the damager, the garment. The Braita needs to teach us that even in this case the bor victim is not paid from the body of the damager and must take a loss.Due to the difficulty of finding a situation where there would be liability for the cow that damaged a garment and for a garment that damaged a cow, there are those who emended the text. Rabbeinu Tam rejects this amendment. And we should not emend the text to read: a cow that damaged a sheep, which would solve the problem of finding a domain where they are liable, because the damage would be keren and both the cow and sheep are liable in the same domain, either a public domain or a jointly owned courtyard. For if it was so, that the Braita is discussing two animals that are damaging each other by keren, the Braita should teach us: oxen that wounded each other, as the Mishna does later in Hamainee’ach (33a). When a Mishna already discusses this situation using the case of two oxen, a Braita that wants to clarify should use the same illustration. It is usual for the Talmud to mention a cow and a garment, as the Gemara says (below 94b): Their father left them, as an inheritance a cow and a garment.
  
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  Something that is worth any [amount of] money. The Mishna refers to land as ‘[something] worth money’, because any parcel of land is worth any amount of money. The Gemara explains that the laws of price fraud do not apply to land and no matter how much one overcharges the sale is valid. Land is therefore referred to as something that is worth any amount of money. Tosafot says that this statement is not to be taken literally, because there is a point where even a land sale is invalid. This is imprecise,1<i class="footnote">See G’ro who quotes the Rambam and Rif as disagreeing with Tosafot.</i> for if the difference is greater than a half, i.e. the seller charged two hundred one dollars for land that is worth one hundred, there is price fraud as can be understood in Perek HaZohov (Bava Metzia 57a).2<i class="footnote">The Gemara there does say that at some point the sale is invalidated. See Tosafot there ד"ה אמר, who quotes Rav Nachman on Bava Metzia 108a, as saying that even if land worth one hundred was sold for two hundred the sale is valid. Rabbeinu Tam reconciles the two Gemaras by saying that 57a, is telling us that there is a point where the sale is invalidated, while 108a is telling us that the point is when one charges two hundred one for land worth one hundred. See previous note. Rambam learns that there is in fact a disagreement between the two Gemaras. 57a holds that the sale is invalidated, whereas Rav Nachman on 108a holds that a sale of land is never invalidated. The Rambam and Rif adopt Rav Nachman’s ruling as halochoh. Our Gemara which says that land is worth any amount of money is cited as proof to Rambam. When taken at face value, this Gemara is saying that there is no limit to the amount that one can overcharge for land. See Shulchon Oruch C.M. 227, 29, Be’ur HaG’ro 39, 40.</i>Rather, the meaning is that land is worth so much more money than movable objects. For movable objects the sale is invalidated if the seller overcharged more than a sixth, whereas for land the sale is invalidated only if he overcharged more than a half.
  
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  Slaves and documents are also acquired with money. The Gemara suggests that land is described as ‘[something] that is worth money’, because it can be acquired by money. When one pays cash for land, ownership is transferred to him and he need not perform any other acquisitory act, whereas when purchasing movable objects, paying cash must be followed by some other kinyon. The Gemara argues: slaves and documents are also acquired by cash. How can this be used as a description of land? When the Gemara asks: but slaves are also acquired with cash? We do not have the text that includes documents in the Gemara’s question, because documents cannot be acquired with cash. Rather, they can be acquired with handing over the documents from seller to buyer, and with writing a document1<i class="footnote">See Bava Batra 76a for a complete discussion of this matter.</i> stating that the documents have been sold to the buyer.ואפילו בחליפין נמי צ"ע And even by the kinyon of exchanging,2<i class="footnote">This is perhaps the kinyon used most often. The buyer hands an item, usually a handkerchief, to the seller. In ‘exchange’ the seller transfers ownership of the sale item to the buyer.</i> which is a general kinyon, used for both movable objects and land, intense study is required to determine if it is effective for documents.3<i class="footnote">See אוצר התוספות note 2270, who lists many differing opinions about this subject.</i>Rashi was aware of the text that includes documents in the Gemara’s question: Rashi commented that it has not been clarified where it is stated that documents can be acquired with cash.
  
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  With orphans. The ruling of our Mishna that damages are to be collected only from land is speaking specifically when payment is to be collected from the damager’s heirs. When collecting from the damager himself, even movable objects can be collected. Tosafot wonders why even land can be collected from the damager’s heirs.For a greater understanding of the issues involved, review Tosafot 11b, ד"ה כגון.If you ask: According to Rav and Shmuel who hold in Perek Get Poshut (Bava Batra, 175a) that a lien on one’s property is not Torah law,1<i class="footnote">If the lien is Torah law, it is automatically in effect for any debts that a person incurs. This includes even debts where there is no publicity at all such as damages and undocumented loans.</i> rather, a Rabbinic enactment to establish security for potential lenders, and therefore an undocumented loan cannot be collected from the borrower’s heirs, because the enactment is in effect only where the purchaser of the property should have been aware that the seller was in debt. A documented loan becomes public knowledge because of all the people involved, i.e. the scribe and witnesses. In the case of an undocumented loan, the buyer of the property has no way of discovering that the seller is in debt and should not be penalized for buying the property. (See Tosafot earlier who explain why the heirs are treated the same as buyers.) Payment owed for damages is comparable to an undocumented loan, and if so, the courts should not get involved with collecting damages from the heirs of the damager even when they inherit real property. Since the level of publicity for damages is less than for a documented loan.One can answer: that this Mishna is speaking of when they stood in court while the damager was still alive. The court trial establishes sufficient publicity for the purchaser to be well aware that the seller is in debt and the land can be collected from him. As explained earlier, the same applies for the heirs.
  
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  It is evident from this; one who borrowed and then sold, etc. The Gemara understands that the simple explanation of the words בפני בית דין in our Mishna, mean that one must be in possession of his land in order for the court to collect damages from that land. If one first damages and then sells the land before his court appearance, the court will not collect the damages from the sold property.The Gemara asks: are we to understand from this ruling that if one borrows and then sells his land; will the courts not collect the debt from the sold property? The thrust of the Gemara’s question is to say: that this is definitely not so and the courts will unquestionably collect the debt from the sold property. Tosafot is not sure about the exact circumstance where the Gemara’s question would be compelling, and he analyzes the various possibilities.Rashi explained that when the Gemara asks: “Are we to understand that when one borrows and sells his property the courts will not collect the debt from that property?” there is a implied conclusion to that question: but it is well-known to us that the lender can come and collect from those sold properties?Tosafot will now analyze the possible circumstances where this question would be valid.There are three issues that might affect the Gemara’s question: a) A documented loan can be collected from sold property. b) An undocumented loan cannot be collected fro sold property. c) The status of damages: are they like a documented or an undocumented loan? This is bewildering! Does the Gemara consider damages like a documented loan? If the Gemara assumes that liability for damages is similar to a documented loan and we are certain that a documented loan can be collected from sold property, the Gemara should not have said “are we to understand etc. [that when one borrows and sells his property, the debt cannot be collected from sold properties]?” This phrase implies that we do not have a Mishna or Braita that clearly states the ruling in this case. Rather, the Gemara should have asked: but we learned in a Mishna that one, who lends to his associate with a document, collects from sold property. This ruling is clearly stated in the Mishna and should be quoted as the basis for the Gemara’s question. If the Gemara is certain that damages are like a documented loan, the Gemara only needs to prove that a documented loan is collectible from sold property. The Mishna should have been quoted to prove this point.Perhaps the Gemara considers damages like an undocumented loan? And if the Gemara equates damages to an undocumented loan, if so, why is the Gemara saying: “are we to understand from our Mishna that when somebody borrows and then sells his property, the courts do not collect the debt from them, the sold properties?”, which implies that the court should collect from such sold properties, but it is crystal-clear that the courts do not collect from sold properties when the debt is undocumented, for we have learned in a Mishna: one who lends his associate with witnesses only, and does not write a document, he collects from unsold property, but not from sold property. The ruling of our Mishna that in a case of damages which is comparable to an undocumented loan, one does not collect from sold properties, is perfectly correct. What is the Gemara’s asking?Perhaps the issue is the status of damages? Are they comparable to a documented or undocumented loan? And if this is the very point the Gemara is deducing, when it asks: are we to understand that when one damages and sells his property, the courts do not collect from them, the sold property, and the obligation to pay damages is comparable to an undocumented loan, even though the responsibility to pay damages is a loan (obligation) that is written in the Torah, the Torah expresses this obligation many times. The thrust of the Gemara’s question is: וקשה למ"ד בפ"ק דערכין (דף ו:) דמלוה הכתובה בתורה ככתובה בשטר דמיא that this understanding of our Mishna would then present a difficulty to the one who says in the first Perek of Arochin (6b) that a loan (obligation) that is written in the Torah is comparable to a loan that is written in a document and is collectible from sold property.The Gemara is proving that if one sold his property after he damaged and before his court appearance, our Mishna which says that the damages cannot be collected from sold property is a contradiction to the one who holds that a loan (obligation) written in the Torah is equivalent to a documented loan and can be collected from sold property.Tosafot finds this explanation of the Gemara’s question unacceptable: If so, that the Gemara is presenting a difficulty to the opinion that holds that a loan written in the Torah is comparable to a loan written in a document and is collectible from sold property, why does the Gemara use the phrase: “one who borrowed and sold his property”, which is an euphemism used to illustrate the point that the sold property of the damager would be uncollectible even though the obligation is written in the torah, the Gemara should have simply said: are we to understand that a loan (obligation) that is written in the Torah is not as if it is written in a document and uncollectible from sold property? The fact that the Gemara does not use this phrase, which is used often throughout the Talmud, is proof that this is not the point of contention.Rabbeinu Tam presents his explanation of the Gemara’s question: מפרש ר"ת ש"מ לוה ומכר נכסיו אין ב"ד גובין לו מהם מן התורה דשיעבודא לאו דאורייתא Rabbeinu Tam explains that the Gemara is asking: Are we to understand that when one borrowed and sold his property, the court does not collect for him, the lender, from them, the sold property, by Torah law, because a lien on the property of a person in debt is not Torah law? According to those who hold that a lien is not Torah law, it was enacted by the Rabbis to insure lenders that their loans would be paid, otherwise they would never lend money to people in need.And it is for this reason that for damages one can also not collect from sold property.The reason that the Rabbis enacted a lien to collect from sold property applies to loans but not to debts for damages. It is specifically for a documented loan that the Sages instituted the rule that one can collect from sold property, because otherwise the lenders would be totally unprotected and the doors would be locked in the face of borrowers. The Rabbinical enacted lien protects the lenders and they can now give loans. But in regard to debts for damages there is no need to establish a lien, because one does not voluntarily become a victim of damages. There is no need to protect the victim who is owed money, because otherwise he will not consent to being a victim. The position of damages victim is not a voluntary one.Tosafot needs to explain why this approach is only viable according to the one who holds that a lien is not Torah law. For if a lien is Torah law, and the reason that an undocumented loan is not collectible from sold property is Rabbinic, instituted to protect the purchasers who have no way of knowing that the seller is in debt and that there is a lien on the property they are purchasing, If so, we have a difficulty, here, when a person damages and then sells his property, why do we not collect damages from sold property? We cannot answer that the Sages wanted to protect the purchasers, because here there is no need to institute a law to protect the purchasers.But why is it that a purchaser from a debtor whose loan is undocumented needs protection and a purchaser from one in debt for damaging does not need protection?And one who purchases from a debtor who owes for damages is not comparable to one who purchases from a debtor who owes for an undocumented loan, because there, in the case of the undocumented loan, one who borrows, borrows privately, he makes a conscious effort to not to publicize the fact that he is in debt. He does not want to ruin his credit worthiness. One who purchases his property can usually not discover that the seller is in debt and he therefore needs the protection of the Sages. But one who damages is not careful to avoid publicity, he did not choose the time and place that his ox might damage and there is public knowledge that he owes money for damaging. Whoever purchased his property had ample means of discovering that the seller was in debt and there is no need for the Sages to enact a law to protect him. Since there is no need to enact a law to protect one who buys from a debtor/damager, why don’t we collect from sold property? It must be that there is no lien by Torah law and there is no need to enact a special law that we should collect for a damages victim from sold property, and this is a difficulty to the one who says that there is a lien by Torah law in Perek Get Poshut (Bava Batra 175b).This is what the Gemara means to ask when it says: “Are we to understand that when one borrows and sells, the courts will not collect from the sold property?” It presents a difficulty to the one who holds that there is no lien by Torah law. 
  
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  [That] excludes a court of non-ordained judges. The Gemara concludes that when the Mishna says בפני בית דין, it is telling us that the court must consist of judges who have s’meechoh, as opposed to a court of common judges who do not have s’meechoh. See Artscroll note 23.S’meechoh is required for cases dealing with fines and penalties. The rule of thumb is that when the Torah requires one to pay more (such as double for stealing) or less than he damaged (such as half payment for a tam that damages), or a fixed sum for a violation (such as fifty sh’kolim for a seducer), that is a fine.When one pays the amount that he stole or damaged, that is restitution for what he did and that is not a fine. Such cases may be judged even by those who do not have s’meechoh, as long as they are well versed in the laws.When the Gemara concludes that our Mishna is excluding a court of non-s’meechoh judges, it appears that the Mishna is discussing cases that deal with fines. We must see if our Mishna is discussing cases that are fines or regular financial matters.Rashi explained: That the exclusion of non-s’meechoh judges is relevant to laws of fines, because it is only for such cases that s’meechoh is required. For regular cases of monetary matters non-s’meechoh judges are acceptable as long as they are well versed ikn the laws.But is our Mishna speaking about fines?And even though our Mishna is not speaking about fines according to the one who says that the Mishna taught shor to inform us of regel and maveh to inform us of shain.1<i class="footnote">See 4a, where this position is discussed.</i> 2<i class="footnote">Tosafot is clearly saying that according to the disputant who holds that shor includes all three forms of shor, keren, shain and regel, there is no problem. The commentators are puzzled with this. It seems that Tosafot is saying that if keren is mentioned in our Mishna there is no problem, because a tam shor is a fine because he pays less than he damaged. Maharam Schiff has severe problems with this approach. A) Even if our Mishna is discussing keren, it is discussing a muad, because our Mishna clearly says that payment is to be made from the finest land and that is only true of keren that is a muad. B) There is an opinion that even keren tam is not a fine. C) Even the one who holds that shor in our Mishna is referring to regel, admits that keren is alluded to later when the Mishna says “כשהזיק חב המזיק - when he damages the damager is liable to pay”. If so according to all opinions keren is mentioned in the Mishna. If the keren of our Mishna is a fine then all should agree that the Mishna is discussing at least one damager that is a fine. Maharam Schiff suggests that Tosafot means something entirely different. According to the one who holds that shor includes keren, shain and regel, maveh refers to a person. There are many damages that a person does that are in the category fines; for example a seducer, a rapist and a slanderer are all fines. Thus within maveh there are many primary damagers that are categorized as fines that the Mishna is discussing.</i> Shain and regel are not fines, because they pay exactly what they damaged. The same is true of bor and aish.Even so the Tano alludes to us in the Mishna rulings, even about matters that he does not speak about in the beginning of the Mishna. Fines are not specifically discussed in the Mishna and even so the Tano teaches us a ruling about the requirement of judges that have s’meechoh for cases that involve fines.Shouldn’t this be viewed as a difficulty with Rashi’s explanation?For so too, the Gemara will soon explains the words “על פי עדים- by the testimony of witnesses” to exclude from liability one who confesses to a fine and then witnesses arrive who testify that he committed the violation. The Mishna is ruling that since he confessed before the witnesses arrived he is exempt. Obviously, this ruling is clearly relevant only to fines and even so the Mishna discusses it. We see that even though cases of fines are not mentioned in the earlier part of the Mishna, the Mishna here on 14b does allude to rulings about how the court must deal with cases of fines. Since it is clear from the Gemara that end of the Mishna is discussing fines there is no difficulty with Rashi’s explanation that the previous statement of the Mishna is also discussing fines.
  
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  But according to the one who says: [regarding] one who admits [he is liable to pay] a fine and then witnesses come afterward [and testify that he is] liable [to pay], what is there to say? When a person commits a violation that is punishable by a fine, i.e. seducing a young girl, if he confesses to the crime he is exempt from the fine of fifty sh’kolim. The Gemara 64b derives this from the verse in Shemot 22, 5, liability must be established by the court and not by the transgressor.There is a second step to this ruling. The transgressor confesses and the witnesses arrive to testify that he committed the crime. The court can establish his liability independently, but he has already confessed!The Gemara here says that the words in the Mishna על פי עדים" – by the testimony of witnesses” come to teach us that if one confesses to a violation that is punishable by a fine and then witnesses testify that he is guilty, even though we now know of his guilt without his confession he remains exempt.This is actually the subject of a dispute later on 74b, and the Gemara asks: this is logical according to the one who holds that one who confesses to a fine and the witnesses come is exempt, but what about the opposing opinion who holds that if witnesses come and testify even after the confession he is liable, what are these words על פי" עדים– by the testimony of witnesses” teaching us?It seems that there is nothing of a novelty that the Mishna can be teaching us about one who confesses to violation punishable by a fine. But what about the initial rule that one who confesses to a fine is exempt? isn't that initial rule sufficient novelty? Why doesn't our Gemara say that our Mishna is teaching us that one who confesses to a violation that is punishable by a fine is exempt?Tosafot explains:To teach us that one who confesses to violating a sin that is punishable by a fine and witnesses do not come at all is exempt, it is not necessary for our Mishna to use the superfluous words על פי עדים. For it is clearly stated in a Mishna in Perek M’ruboh (below 74b): that in cases involving fines, one is exempt if he confesses.Sometimes the Gemara says in similar cases that the Mishna first mentions the ruling here and elaborates upon it later. Perhaps this too is such a case?for it is not reasonable to say that the Mishna first taught the rule and then later clarifies it, because the Mishna there is not any lengthier than the Mishna here.
  
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  The verse equates a woman with a man. Most of the Torah is written in the masculine term. There are some verses where the Torah specifically addresses a man. Tosafot explains that the principle that we are presently discussing which teaches that women are equal to men in regard to all penalties of the Torah refers only to those verses that are written in the masculine term. However, where the Torah specifically mentions that it is speaking to a man, a special inclusion is needed to teach us that the mitzvah applies to woman as well.This rule that equates women to men as far as all penalties of the Torah is specifically when the passage is said in the masculine term. Where there is no explicit reference to a male we are to assume that the Torah is speaking to women as well, even though the verse is written in the masculine term. That is the lesson of our Gemara.Tosafot offers an illustration of his explanation that this rule applies when the verse is written in the masculine term:כי ההיא דריש תמורה (דף ב:) דפריך אמאי איצטריך רבוי לענין תמורה לפי שהפרשה נאמרה בלשון זכר והא השוה הכתוב אשה לאישAs can be seen from that Gemara at the beginning of Masechet T’muroh (2b),1<i class="footnote">The Gemara there says that the superfluous word in Vayikra 27, 10,-- וְאִם־הָמֵ֨ר יָמִ֤יר בְּהֵמָה֙ בִּבְהֵמָ֔ה וְהָֽיָה־ה֥וּא וּתְמוּרָת֖וֹ יִֽהְיֶה־קֹּֽדֶשׁ --teaches us that women are also included in this prohibition.</i> where the Gemara asks: why is it necessary to have a specific inclusion to include women in the matter of T’muroh? Since the passage was said in the masculine term, the question was asked: but the Torah equated a woman to a man for all penalties of the Torah?This is not so when the Torah specifically speaks of a “man”.However, where “man” is clearly written in the verse, there, we definitely require an inclusion to include women in the mitzvah.Tosafot offers proof that when the verse specifically mentions a “man” a special inclusion is needed to inform us that the rule applies to females: As we find in that Gemara in Perek Arba Meesos (Sanhedrin 66a) where the Gemara is discussing the negative commandment prohibiting cursing one’s parents: The verse (Vayikra 24, 15) reads: a man who will curse his father and his mother. The Gemara asks: I would only know that this applies to a man, from where do we learn that it applies to a woman? We see that in this case since “man” is specifically mentioned a special inclusion is needed to teach us that the mitzvah applies to women as well. We cannot make use of the general rule that women are equal to men for all penalties of the Torah.Based on this understanding, that when the Torah does not specifically mention “man” we utilize the general rule that equates women to men for all penalties of the Torah, we are faced with the following question: If you ask: later in Perek Shor Shenogach Arbo’oh vaChameeshoh (44b, and Tosafot ד"ה שור האשה) where the Gemara says the word shor is repeated seven times, to include among others the ox of a woman in regard to an ox that killed, the verse is teaching us that there is liability for a woman’s ox as well.Why is an inclusion needed, but there in that verse the word “man” is not written and we should utilize the general rule that includes women in all mitzvos of the Torah? And even though it is written in that verse “and also his owner will die” that is not a specific mention of “man”,2<i class="footnote">See Rashi 44b ד"ה שור האשה. See also Tosafot Rabbeinu Peretz.</i> but merely a masculine term, where no special inclusion for women is needed.Rabbeinu Tam answers this question:Says Rabbeinu Tam: that the Gemara there 44a expounds3<i class="footnote">The word דמקשינן – literally - that we compare, appears in brackets in our Tosafot. Elsewhere in Sukoh 28b the word דדרשינן is used as is mentioned on the gloss.</i> that the word יגח is repeated in Shemot 21, 31, twice to apply the word נגיחה" – goring” to the verse that speaks of an ox killing and to apply the word נגיחה" – goring" to the verse that speaks of an ox damaging. It is as if the Torah is telling us that whatever is true of one verse that discusses goring is true of any other verse that discusses goring, and we would derive from the verse that discusses damages, where the word “man” is written in the verse (Shemot 21, 35): if the ox of <u>a man</u> will shove etc. This would come to exclude a woman from liability, if not for the inclusion of the verse that repeated the word shor seven times to include the ox of a woman as well. Without the special inclusion of the repetition of shor seven times we would say that a woman is excluded from liability for her ox damaging as well as for her ox that kills. Now that we have that inclusion, a woman is liable for her ox that damages as well as for her ox that kills.
  
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  “[And these are the civil laws] that you shall set before them”; the verse equates a woman with a man. In Shemot 21, 1, the Torah states “and these are the laws that you shall place before them”. Who are “them”? In our Gemara which presents this verse as proof that the monetary laws of the Torah apply equally to men and women, it seems that the word “them” refers to the people in general. See Rashi ד"ה לפניהם: who says that all or included, men and women.Tosafot quotes a Gemara that says that “them” refers to judges. Women are excluded from being judges. It seems ironic that the very same word, which our Gemara uses as proof that women are included in the monetary laws of the Torah, is simultaneously referring to judges where women are excluded.This is bewildering! But לפניהם – “before them” is speaking only about those who are qualified to be judges?1<i class="footnote">Tosafot proves from the Gemara in Gittin 88b that the word לפניהם refers to judges. He then proves that women are disqualified from judging. At this point the commentators are puzzled as to what exactly Tosafot is asking. If Tosafot is asking how the verse can be speaking about qualified judges and also at the same time about the people to be judged, the question remains unanswered. Tosafot eventually answers that women are eligible to judge, but this does not explain how the verse can be speaking about two different subjects. It seems that Tosafot was unconcerned about the fact that the same verse is interpreted in Gittin as speaking about judges and in Bovo Kamo about the people to be judged. Why not? פני יהושע suggests that the verse is definitely speaking about judges. The Gemara here assumes that women are eligible to judge, and if so, whoever is eligible to judge certainly can be judged. Tosafot then asks: But women are not eligible to judge as indicated in Needoh 49b? Tosafot answers that they definitely can judge and he shows how Needoh 49b is not discussing women at all. What emerges according to פני יהושע is that the verse לפניהם is speaking only about judges and we learn via kal v’chomer that whoever is eligible to judge, certainly can be judged. See Tosafot HoRosh in Gittin 88b who says that the word לפניהם can refer to two different subjects, judges and those to be judged. According to his approach Tosafot may be asking: How can the two subjects have differing halochohs? The subject ‘judges’ exclude women and ‘those to be judged’ including women. Tosafot then answers that women are also included in the subject of judges.</i> For that is how the Gemara expounds this verse in the last Perek of Gittin (88b) לפניהם – “before them” and not before commoners who are not ordained with s’meechoh.Tosafot is saying that because the verse is discussing those qualified to be judges, women are excluded, but how does Tosafot know that women are excluded from being judges? And a woman is disqualified from judging as we have learned in a Mishna in Perek Bo Simon (Needoh 49b): Whoever is qualified to judge is qualified to testify, and a woman is disqualified from testifying as the Gemara says in HaChovail (below 88b) and in Perek Sh’vuas Ho’Aidus (Sh’vuous 30a).2<i class="footnote">In Bovo Kamo 88b, the Gemara mentions in passing that women are disqualified from testifying. In Sh’vuos 30a the Gemara cites the source in D’vorim 19, 17, “and the two men shall stand” this refers to the witnesses.</i> Since the Mishna says “whoever is qualified to judge is qualified to testify” and we know that a woman is not allowed to testify, it must be that a woman is not qualified to judge. Otherwise, the statement that whoever can judge can testify would be untrue, because a woman can judge but not testify.Tosafot retracts from his initial assumption that women are not qualified to be judges. We can answer: That the Mishna in Bo Simon (Needoh 49b) is speaking about a man. The Mishna means: Any man who is qualified to judge is qualified to testify. If a man is qualified to be a judge he is certainly qualified to testify. If he is not qualified to testify, he cannot be a judge. This does not exclude women who are not qualified to testify but are qualified to be judges.Tosafot attempts to show how we might derive that women may be judges from a Biblical source, but then rejects this proof. And from that which is written about D’vorah (Shoftim 4, 4), “she judges Yisro’ail”, which definitely is proof that she was qualified to be a judge, we cannot bring proof that a woman is qualified to judge, because perhaps they accepted her upon themselves,3<i class="footnote">In matters of monetary law when both sides agree, they may go to a judge that is not qualified to rule by Torah law. See Mishna in Sanhedrin 24a. For example two disputants may decide to bring their dispute before ‘three cowherds’ who are not well versed in Torah law. Once they agree to go, the decision is binding. This may have been the system through which D’vorah was empowered. Initially the people agreed to go to her to adjudicate their differences because of her intimacy with the divine presence. They felt that because of her sanctity they would receive a proper decision. She never had the authority to force people to come to her because a woman is unqualified to judge.</i> even though she was not legally qualified to judge, because of the divine presence that was with her. If you ask: In Gittin (88b) we expound לפניהם – “before them” to exclude commoners who are not ordained, and here we expound the same word to include women?4<i class="footnote">See note 1. On the surface this seems like a repetition of Tosafot first question. פני יהושע explains: Initially Tosafot understood a our Gemara as saying that the Gemara assumed that women can judge and via kal v’chomer we learn that they can be judged. Tosafot is now revisiting the initial verse on this subject לפניהם – before them. Who are ‘them’? Rashi in Masechet Gittin says that this word refers to the ‘seventy of the elders of Yisro’ail’, mentioned in the verse at the end of Parashat Mishpatim 24, 9. Those are the members of the Great Sanhedrin and must definitely be men, as the verse states in Bamidbor 11, 16, in reference to the Great Sanhedrin “seventy men of the elders of Yisro’ail”. If so Tosafot asks: The reference of לפניהם is to a group that definitely excludes women. How can we learn via kal v’chomer that women can be judges?</i> We can answer: That there in Gittin 88b, we exclude commoners who are not ordained because the word לפניהם – “before them” refers to the word אלהים – “judges” that is written many times throughout the passages 5<i class="footnote">See notes 1 and 4. According to פני יהושע Tosafot is saying that the word לפניהם is not referring to the ‘seventy elders’ but to the many times that the word ‘אלהים – judges’ appears in the Parsha. That word does not exclude women and thus we can learn via kal v’chomer that women who may judge can certainly be judged.</i> that discuss the monetary laws in Parashat Mishpatim. See Shemot 21, 6, and 22, 7, 8. Thus, the term לפניהם– “before them” is saying that the trial must be bought before judges as indicated in the word אלהים; the אלהים that is written in those passages does not exclude women.If the source of the ruling that s’meechoh judges are required is the word אלהים that is written through out the passages, why is the word לפניהם needed?6<i class="footnote">If לפניהם refers to ‘seventy elders’ we could say that it is needed to exclude women judges. The verse would be teaching us that only judges such as the ‘seventy men of the elders’ are to adjudicate monetary law. But now that we say the verse is not referring to the ‘seventy men’, but rather to the ‘judges’ mentioned throughout the verses dealing with monetary law and we are not excluding women, why is the verse needed at all?</i> If you ask: without the word לפניהם – “before them” we can elicit that s’meechoh judges are required from the word “אלהים– judges”, which means experts?Tosafot explains that there is something new that is derived from the word לפניהם. We can answer; That לפניהם – “before them” is needed to teach us that for all matter of coercion of those who do not want to follow Torah law even though it is not a judgment, i.e. if a person refuses to do a mitzvah such as take the four species on the first day of Sukos, the court will force him to do so. No ‘judgment’ is required. It is very clear that the Torah requires one to take an esrog and lulov and that this individual is refusing to do so, even so s’meechoh judges are required to institute the process of coercion. And so is it evident in the first Perek of Sanhedrin (7b) where the Gemara expounds from the words that precede לפניהם in the verse, אשר תשים – “that you shall place” the Gemara asks: the verse should read “that you shall teach them”? The Gemara then answers: The word תשים – “place” refers to the apparatuses of the judges needed to coerce those who refuse to obey the court.
  
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  “And it killed a man or a woman.” In Shemot 21, 25, the Torah says: “and if an ox gores a man or a woman”. In the very next verse Shemot 21, 26, the Torah says: “and it will kill a man or a woman”. Our Gemara is clearly referring to verse 26. Tosafot wonders: why doesn't the Gemara quote the earlier verse 25?This is bewildering! For the previous verse “if an ox will gore a man or a woman” should have been cited here as proof that women are equated to men when they are victims of a goring.The second verse is used to derive another ruling:For from verse 26, “and he will kill a man or a woman”, the Gemara expounds in Shor Shenogach Arbo’oh va’Chameeshoh (below 42b): just as the payment for a man’s damages passes to his heirs etc. so too the damages payment of a woman passes to her heirs and not to her husband.Tosafot quotes the Gemara there on 42b:And this is what the Gemara says there: “and he, the ox, will kill a man or a woman”, R’ Akiva says: what does this come to teach us? Perhaps that one is liable for the death of a woman as he is for the death of a man? The verse already says “if an ox will gore etc. a man or a woman. We already know that one is liable when his ox kills a woman. Rather, the verse is needed to compare a woman to a man in regard to the recipient of the post death payment, just as a man’s damages are paid to his heirs etc., so too, a woman’s damages are paid to her heirs. 
  For all deaths. ‘For all deaths’ can be understood as follows: that just as a man is liable for capital punishment, so too when a woman commits a capital offense she is also liable for capital punishment. Tosafot explains that this is not the meaning of this derivation.The Gemara means to say: That one is liable for capital punishment or for kofer upon killing them, women, just as one is liable for killing a man, for that is what the verse “and he, the ox, will kill a man or a woman” is speaking about. It is clear that the reference of ‘man or woman’ is to a victim of the goring not to the perpetrator. The words can be translated as “and a man or woman will kill”, but that is taking the sentence out of context. In the Torah the subject usually precedes the verb. In this verse the subject is ‘and he will kill’, he, is the ox, that is mentioned earlier in the verse.Tosafot offers further proof: And in the next Gemara as well, the Gemara says: because of the loss of her soul, the Merciful one had pity on her.1<i class="footnote">The words חס רחמנא עלה do not appear in our Gemara in reference to the verse dealing with comparing woman to man for all deaths in the Torah. In our Gemara this phrase is used to explain why a woman might be included in the verse that speaks of her obligation to offer a sacrifice for atonement. Perhaps Tosafot understood that placing the liability for kofer on one whose ox kills a woman is a function of ‘pity’ on her, because this will cause the would be perpetrator to be more careful when his ox is in the proximity of a woman. If he knows that even if his ox killed a woman, he would not be liable, he may be negligent about guarding his ox. Thus the liability for kofer when an ox kills a woman is an expression of Hashem’s pity on her.</i> This is reasonable if we are discussing a woman who is a victim. The Torah requires the perpetrator to pay in order to motivate him to be careful and secure his ox so that it should not gore a woman. This is what is meant by ‘the Merciful one had pity on her’. But if the derivation from this verse is that a woman who is responsible for the death of another should be liable for capital punishment; that is hardly taking pity on her soul.And the Gemara is not speaking about a woman who murdered, and saying that she should be liable for capital punishment just as a man is liable for capital punishment.2<i class="footnote">Tosafot is saying that this is not the source for ruling that a woman who murders is liable for capital punishment. See Rashba for a discussion about how we do in fact know that a woman is liable for capital punishment when she murders. See also אוצר מפרשי התלמוד to our Tosafot, notes 74 and 75, who quotes a מכילתא that according to the text of the Gro specifically says that a woman who murders is liable for capital punishment. One might ask: Why is this not included in our Gemara where all the sources for the liability of women are mentioned?</i>
  
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  Because [a woman needs] atonement, the Merciful One had pity upon [her]. The first verse that equates women to men is speaking about the obligation to bring a sacrifice that will atone for a sin. The Gemara says that in the absence of other verses that include women, I might say that the equality of women may be limited only to this verse that speaks of the ability to achieve atonement via a sacrifice. In fact the Gemara is saying that we learn from this verse that women are liable for all punishments, this includes all sins that carry with them any form of ‘punishment’. Without this verse they would not be liable for these sins. Is the liability for women who commit these transgressions a form of compassion? Wouldn’t they be better off if they were not liable at all? If you ask: Since this verse is the source for women’s liability in all mitzvos of the Torah that carry with them punishments, if they would not have been compared to men as relates to punishments at all, certainly that would have been a greater ‘pity’ on them. Women would not be liable for any of the negative commandments of the Torah and because there would be no punishment, she would not need atonement at all?We can answer: That the verse is needed to provide women with an opportunity for atonement for those punishments that are written clearly in the Torah for women, such as prohibited family relations. That they can be atoned by bringing a sacrifice is the pity that Hashem is showing them.1<i class="footnote">If we only had the verse dealing with atonement, we would say that the sole purpose of this verse is to grant women atonement. The fact that we say that she is liable for all ‘punishments’ of the Torah is derived from the combination of all three verses, where we see that the Torah treats women as men in many other area as well as for atonement. She is also treated as man as far as all punishments are concerned.</i>
  
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  [The mishna’s statement] is necessary only with regard to [the] diminishing [value] of the carcass. The Mishna says that the damager and his victim ‘share’ in the payment of damages. This makes sense according to Rav Papa who holds that half payment of a tam is a compensation payment. The victim should receive full payment; he receives only half, so he ‘shares’ in the payment. But according to Rav Huno son of R’ Y’hoshua who holds that the tam’s half payment is a fine, by right the victim should receive nothing. How can his receipt of half payment be thought of as ‘sharing’ in the payment of damages when he should actually not be paid at all?The Gemara answers: That the term ‘the damager and the victim share in the payment’ refers to the rule that when the carcass deteriorates after the goring, that loss is absorbed by the victim. This is the ‘share’ of the victim in the payment of damages. A careful analysis of this rule will show that the Gemara’s initial problem with Rav Huno son of R’ Y’hoshua is not truly solved. See Artscroll note 28.Even though the victim is still receiving that which is not his, because according to Rav Huno son of R’ Y’hoshua he is entitled to nothing and he is receiving half payment minus the deterioration of the carcass, which is a great deal more than he is entitled to, in any case, since the Merciful one gave him the benefit of allowing him to collect half of the damages,1<i class="footnote">See אוצר התוספות note 2339 who quotes שיטה מקובצת to Masechet Ketubot who offers the following parable. A person lost one hundred dollars. A kind person gives him a gift of fifty dollars. If he loses any of the fifty dollars, it is considered a loss. So too, he lost his ox because it was gored by a tam ox. The Torah gave him half of the loss. If you take away any of that gift, it is a loss. We may add that this should not be thought of as if the gift was initially half payment minus the deterioration of the carcass, because not always is there a deterioration of the carcass and sometimes he will collect a complete half payment.</i> we consider him as ‘sharing’ in the payment for the amount that the carcass deteriorated between its death as the result of goring and when he sold it.2<i class="footnote">Rosh disagrees with Tosafot explanation that this should be thought of as a loss. He says that in fact our Mishna (14b) that speaks about ‘the damager and the victim share in the payment’ is speaking about a muad ox where the liability is compensation and not a fine. The previous Mishna (9b) that speaks of חבתי בתשלומי נזקו is speaking about a tam. There is an inherent difficulty with Rosh’s explanation. The Mishna there continues with במיטב הארץ – I must pay from the finest land. This is true only of a muad and not of a tam. Perhaps this argument compelled Tosafot to explain the ‘sharing of payment’ as he does.</i> And he, the victim, cannot say to the damager the reason for the deterioration of the carcass is that the horn of your ox is buried in him, the victim ox, as we explained earlier (10b, תוספות ד"ה לא נצרכא). There is good reason to hold the damager liable for the deterioration since the deterioration of the carcass is ultimately a result of the goring. Had his ox not gored the victim there would be no carcass and no deterioration. Tosafot explained earlier that since the victim had the option of selling the carcass as soon as it died, the damager cannot be held responsible.
  
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  If [one claims that this is an omission] due to [the fact it omits that the owner does not pay] half of the ransom, this is not an omission. A short review of the Talmudic system as it relates to ‘the Tano taught and left out’, is in order:A) The Gemara will often ask: If a given statement is true, why when a Mishna or Braita discusses this issue and lists related laws is this detail not included?B) The Gemara may answer: The Tano listed only some of the relevant information, but not all. This is an acceptable answer, but with one proviso.C) The Tano will never leave out only one detail or one characteristic. There must be at least two details or characteristics that he left out. The Gemara will always ask: What other detail or characteristic was left out?D) The Gemara will answer: That there is a second detail that was also left out.E) Subsequently there may be a disagreement whether that second detail should have been listed at all and can be considered ‘left out’ or perhaps it doesn't belong on that list altogether.F) As long as the second detail can be thought of as a legitimate detail belonging on the list, the answer ‘the Tano taught and left out’ is upheld.G) If the second detail does not belong on the list, the answer ‘the Tano taught and left over’ is rejected.In our Gemara Rav Huno son of R’ Y’hoshua answers: That the Tano could have said that a difference between tam and muad is that muad will pay if the owner confesses and tam will not. However, the Tano taught some differences between tam and muad and left out others. (B)The Gemara then asks: What else did the Tano leave out? (C) The Gemara answers: He left out the rule of half kofer. A muad pays full kofer and a tam does not pay kofer at all. (D)At this point the Gemara may proceed to (E) and argue that the second detail does not belong on the list at all and cannot serve as a second detail that was ‘left out’. Indeed, after only a casual look at our Gemara it would seem as if this is what the Gemara is doing when it says that the second detail, half kofer cannot be thought of as ‘left out’, because R’ Yosee HaG’leelee holds that a tam does in fact pay half kofer and this does not belong on a list of the differences between tam and muad.This approach to the Gemara is extremely difficult, because there is no reason to say that the Tano must hold like R’ Yosee HaG’leelee in the matter of half kofer and therefore the rule of half kofer cannot serve as a second detail and that the Mishna which does not mention that tam does not pay by his own confession is a contradiction to Rav Huno son of R’ Y’hoshua. (G) Certainly, in defense of Rav Huno son of R’ Y’hoshua we can make the argument that the Tano does not hold like R’ Yosee HaG’leelee and he did indeed leave out the ‘second detail’ of half kofer from the list of differences and the argument that the Tano ‘taught and left out’ is legitimate. (F)Tosafot therefore explains that when the Gemara says that ‘the rule of half kofer cannot be viewed as a second detail’ because the Tano holds like R’ Yosee HaG’leelee, this is not a classic attack on the legitimacy of half kofer as a ‘second detail’ addressed to Rav Huno son of R’ Y’hoshua. (E, G) Rather it is a defense of the opposing view of Rav Papa who holds that half damages are compensation. If we are compelled to say that half kofer is a ‘second detail’ that the Tano left out, Rav Papa has a severe problem: what is the ‘first detail’? The ‘second detail’ left out proves that there must be a ‘first detail’. The ‘first detail’ must be that a tam owner who confesses is exempt and a muad owner who confesses is liable, thus contradicting Rav Papa who holds that half payment is compensation and a tam owner who confesses is also liable. In defense of Rav Papa the Gemara is saying that we are not compelled to say that half kofer must be a legitimate ‘second detail’ (F) that proves the existence of a ‘first detail’.The Gemara says that half kofer must not perforce be a legitimate second detail that was ‘left out’. The explanation of the Gemara’s statement is: That if half kofer was a legitimate ‘second detail’ this would be a difficulty to the one, Rav Papa, who holds that half damages are compensation: What is the ‘first detail’ that was left out, that precedes this ‘second detail’ that was left out? For the Tano only left out the difference of half kofer, what difference is there between tam and muad that is the ‘first detail’? It must be the difference of payment by confession. But according to Rav Papa there is no difference between tam and muad, they both pay by confession.The Gemara is saying that we are not compelled to say that half kofer is a ‘second detail’ that was left out, because we can say:That this Mishna on 16b follows the opinion of R’ Yosee HaG’leelee who holds that a tam does pay half kofer, thus the Tano ‘left out’ nothing. Rav Papa may learn that the Mishna follows R’ Yosee HaG’leelee and there is nothing ‘left out’. Certainly Rav Huno son of R’ Y’hoshua may hold that the Mishna does not hold like R’ Yosee HaG’leelee and half kofer is a ‘second detail’ left out together with the ‘first detail’, the difference between tam and muad as far as payment by confessions is concerned.Although as we said earlier, a casual look at the Gemara would indicate that this is a classic attack on the legitimacy of the ‘second detail’, the explanation that this is actually a defense of the opposing opinion, Rav Pops, is not uncommon.For there is this sort of give and take in the Gemara in Perek Sh’loshoh Minim (Nozir 38b)1<i class="footnote">See Tosafot there ד"ה שייר בל יחל who explains that Gemara as Tosafot does here.</i> and in Perek HaCholil (Sukoh 54b).2<i class="footnote">See Tosafot there ד"ה אי משום.</i>
  [This braita] is [in accordance with] Rabbi Yosei HaGelili, who says [that when] an innocuous [ox kills a person, one] pays half the ransom. A cursory glance at this sentence would convince one that it is clearly stated in some Mishna or Braita later that R’ Yosee HaG’leelee holds that one is liable for half kofer when a tam kills a person. As we will see in the course of learning this Tosafot, this is hardly the case. Tosafot will discuss why this position is not attributed to other Tanoim, and eventually why and if R’ Yosee HaG’leelee is the most logical choice.Much of the controversy surrounds the interpretation of the words ‘ובעל השור נקי’ – ‘the shor owner is free’ (Shemot 21, 28), what is he free of? There are many interpretations of this verse as we will see in the course of learning this Tosafot. If one would say that the verse is teaching us that the tam shor owner is free from paying half kofer, he would obviously hold that this too is a difference between tam and muad. But we will see as we progress through the Tosafot, that it is possible to hold that these words teach us some other halochoh and even so one may be exempt from half kofer.We must constantly keep in mind that whatever is derived from ‘ובעל השור נקי’– ‘the shor owner is free’ must be weighed against the fact that it is not mentioned in the Mishna on 16b, and if we are to say that it was ‘left out’, we must have a viable ‘second detail’ that was also left out.Before we embark on this journey Tosafot will explain why the very fact that a tam pays half kofer and a muad full kofer is not considered a difference between tam and muad. And the fact that one of the differences between tam and muad is that muad pays complete kofer and tam only pays half kofer, does not qualify as a ‘second detail’ that was left out, because the Tano has already taught that tam pays half damages and muad pays full damages, and the disparity in kofer payments is included.We already know that a tam pays damages from its body. Only the value of the body of the damaging tam ox can be collected from the tam owner. His owner is not liable for damages that exceed the value of the tam ox. The same is true of the kofer payment of a tam; it must be made only from the body of the tam ox. However, in the case of kofer payment this presents a major difficulty. When a tam kills a person the ox is stoned and one may not have any benefit from its flesh. Obviously, if the payment is to be made from the now stoned body of the tam ox, his victim will receive nothing because it is prohibited to benefit from its flesh. There is always the possibility that the Tam will pay half kofer in instances when the tam ox is not stoned, i.e. when it killed unintentionally. This option will be discussed soon.What we now see is that even if we hold that a tam is liable for half kofer, there are certainly times when the half kofer will be uncollectible, whereas in the case of a muad the full kofer is always collectible. If you ask: The Tano can still teach another difference between tam and muad, that muad pays kofer even when the ox is stoned, because the payment for a muad is not limited to its body, and a tam when it is stoned is exempt from any payment even according to R’ Yosee HaG’leelee because the tam owner can argue to the victim who is claiming payment: bring him, the stoned ox, to court and they,1<i class="footnote">See Rashi 41b ד"ה אמר לו ר' עקיבא where he clearly says that the court will pay you. Obviously, Rashi has a difficulty with the word וישלם which refers to the ox itself. The ox will not pay in any case. Perhaps in Rashi’s text the word is וישלמו – and they will pay.</i> the court, will pay you. Since the stoned ox is prohibited from benefit, there is nothing with which to pay you! See below 41b.We can answer: That this difference between tam and muad is included in the ruling that a tam pays half damages from its body. Once we know that payment from a tam is limited to the value of its body, it is obvious that when the tam is stoned there will be no payment of half kofer.When the Gemara said that the rule of half kofer is a ‘second detail’ that was left out, the Gemara argued that it is not so, because the Tano of the Mishna may hold like R’ Yosee HaG’leelee that tam does in fact pay half kofer and this cannot be listed as a difference between tam and muad. It seems that the only way to deflect the argument that half kofer is a ‘second detail’ that was left out is to attribute the Mishna to R’ Yosee HaG’leelee who holds that one is liable for half kofer. Tosafot will now show us that even if we hold like R’ Akiva that a tam does not pay half kofer there was no need for this to be specifically mentioned by the Mishna as a difference between tam and muad because it is in fact implied in the Mishna.If you ask: If so, for this reason that the tam does not pay half kofer when it is stoned, because it pays only from its body, and that is specifically mentioned in the Mishna, why doesn't the Gemara interpret the Mishna even according to R’ Akiva who exempts a tam from half kofer?There are two possibilities for liability:A) When the tam ox will be stoned as is clearly stated in the Torah.B) When the tam ox will not be stoned for a reason that we will soon learn.Tosafot elaborates on possibility A): For when the ox is stoned it is not necessary to teach us that the owner is exempt from paying half kofer, for the Mishna already taught us that a tam pays from his body, and since he pays only from his body, the half kofer cannot be extracted from the tam owner because he can argue to the victim: bring him, the tam ox, to court and they will pay you. Since the ox is prohibited from benefit, there will be no payment.Possibility B): And when the ox is not stoned, for example, by the testimony of only one witness or when the owner admits that his ox killed somebody, both a tam and a muad are exempt from kofer by the rule of Rabbah, who says in Perek Shor Shenogach Es Haporoh (below 43a): an ox that killed a free man unintentionally is exempt, as it says, (Shemot 21, 29,) the ox shall be stoned and also his owner will be put to death. The very next verse establishes that kofer is to be paid in place of the death penalty. The Torah speaks of the stoning of the ox together with the liability of Kofer. From this we learn: Whenever the ox is stoned the owner pays kofer and whenever the ox is not put to death, such as by the testimony of only one witness or the owners admission that their ox killed, the owner does not pay kofer. This applies equally to a tam and a muad.In summation: according to R’ Akiva in both cases a tam does not pay kofer.A) When the ox is stoned because payment cannot be taken from his body. This is indicated in the Mishna when it says that a tam pays from its body.B) When the ox is not stoned there is no liability for kofer at all and there is no difference between a tam and a muad.The Mishna on 16b that does not say that a tam pays half kofer may be following the opinion of R’ Akiva who holds that tam does not pay half kofer and there is a difference between a tam and a muad when the ox is stoned, but that difference is indicated in the Mishna, which says that tam pays only from its body. This does not qualify as a ‘second detail’ that was left out, because it is in fact mentioned in the Mishna.Tosafot concludes: If we would only consider the rule of half kofer, we could have said that the Mishna does indeed follow R’ Akiva, but there is another consideration. We can answer: That it is truly so, that according to R’ Akiva as well the rule of half kofer is not ‘left out’, because it is implied in the Mishna that a tam does not pay half kofer because it is only paid from its body and the body is prohibited from benefit. And the reason that the Gemara does not say about the Mishna on 16b: This is the opinion of R’ Akiva as we have asked, because he expounds the verse ובעל השור נקי in Shor Shenogach Arbo’oh vaChameeshoh (below 42a): he, the tam owner, is free from paying the value of a slave.When we absorb this information we become aware that saying the Mishna follows R’ Akiva would create another problem. And if it, the Mishna on 16b, follows the opinion of R’ Akiva the Mishna should teach that a tam is exempt from even half the money paid for killing a slave. And if you answer that the Tano did not list everything and left out this difference what is the ‘second detail’ that has also been left out that would justify that this first difference was indeed left out? See introduction to previous Tosafot B) and C). For if we are to accept the value of a slave as ‘left out’ because he also left out half kofer which can serve as the ‘second detail’, that does not qualify as a ‘second detail’ that was left out, because we have learned in the Mishna that a tam pays half damages from its body. In fact, that there is no payment of half kofer has not been left out, as Tosafot has explained earlier.We cannot attribute our Mishna to R’ Akiva because the difference between tam and muad in regard to the payment of the thirty sh’kolim for killing a slave is not mentioned and we have no ‘second detail’ that was also left out.As we mentioned in the introduction, there is no Mishna or Braita where we find that R’ Yosee HaG’leelee clearly states that a tam pays half kofer. Tosafot wonders why our Gemara assumes that this is his opinion. If you ask: How does the Gemara know that R’ Yosee HaG’leelee holds that a tam pays half kofer?If it is because he later (42a) expounds the verse ובעל השור נקי as saying that the tam owner is free from paying for the value of fetuses when the tam causes their mother to abort, (Shemot 21, 22), and he does not expound the verse to indicate that the tam is free from paying half kofer, which implies that he holds that a tam is truly liable for half kofer. Perhaps he actually holds that a tam owner is exempt but a special verse is not needed to teach us this. For in possibility A) when the ox is stoned, the owner is exempt from half kofer because it would have to be paid from the tam’s body and the tam owner can say: bring him to court and they will pay you. Since this is not possible because the flesh is prohibited from benefit, no payment will be made. And in possibility B) when the ox will not be stoned because we only have the testimony of one witness or the owner’s admission, the tam owner is exempt by Rabbah’s rule, that kofer is paid only when the ox is stoned.It is entirely possible that R’ Yosee HaG’leelee also holds that a tam does not pay half kofer, but he needs no special verse to derive this.Tosafot concedes that this argument is in fact correct. The Gemara does not mean that R’ Yosee HaG’leelee definitely holds that tam pays half kofer. It means that he could hold that tam pays half kofer.2<i class="footnote">In the context of our Tosafot where the we must only answer why the rule of half kofer is not something that has been ‘left out’ of the Mishna, it is not necessary to be able to definitely say that this is the position of R’ Yosee HaG’leelee. It is sufficient to say that this may be the position of R’ Yosee HaG’leelee and we have no contradiction to Rav Papa who holds that half damages is compensation as opposed to a fine.</i>We can answer: That which the Gemara says that R’ Yosee HaG’leelee holds that tam pays half kofer is not because we have heard from a definite source that he holds this position, rather, the Gemara means to say: That he could hold that a tam pays half kofer in case B) when the ox is not stoned, and he will not hold like Rabbah that when the ox is not stoned there is no liability for kofer, as R’ Tarfon holds later in the end of Kaitzad HoRegel (26a): That even tam pays full kofer 3<i class="footnote">See Maharsho who wonders why the Gemara does not attribute the Mishna on 16b to R’ Tarfon who clearly holds that a tam pays kofer. He suggests that since it is never clearly stated that R’ Tarfon holds that a tam pays half kofer, but that he pays full kofer in the domain of the victim, the Gemara does not want to attribute the payment of half kofer to him.</i> This cannot be in possibility A) because the ox is stoned and cannot pay from its body. It must be in possibility B) when the ox is not stoned. He cannot hold of Rabbah’s rule that when the ox is not stoned there is no kofer.R’ Yosee HaG’leelee might hold that tam pays half kofer as Tosafot has explained, but what if he does not? How will we explain why the Mishna does not mention this difference between tam and muad, that tam does not pay kofer and muad does?And even if R’ Yosee HaG’leelee holds that tam does not pay half kofer because of Rabbah’s rule that one is liable for kofer only when the ox is stoned, that does not qualify as a difference that was ‘left out’, which would prove that something else was also ‘left out’, as we explained. In case A) tam does not pay half kofer because it cannot be collected from its body. This information is mentioned in the Mishna in the sentence “that a tam pays from its body”. In case B) when the ox is not stoned and kofer is not paid, there is no difference between tam and muad.There is another opinion among the Tanoim that does not derive from ובעל השור נקי that the tam is not liable for half kofer. According to Tosafot’ reasoning he too may hold that a tam is liable for half kofer. And it is also true that the Gemara could have said that this Mishna on 16b follows the opinion of R' Shimon ben Zomo, who expounds the verse ובעל השור נקי there as saying: He, the tam owner, is clean from the value of the hide, it is no longer his and he has been cleaned out. He too, may hold that tam is liable for half kofer.4<i class="footnote">The loss of the value of the hide is the same for a muad as for a tam.</i> And according to him as well kofer does not qualify as a difference ‘left out’. Either because a tam does in fact pay half kofer when it is not stoned, and that is indicated in the Mishna when it says that tam pays half damages and kofer is included, (B) or even if it does not, it is already stated in the Mishna that a tam does not pay kofer when the ox is stoned (A) by saying that a tam pays only from its body. The primary intent of Our Gemara that says the Mishna on 16b follows R’ Yosee HaG’leelee is to make the point that it does not follow R’ Akiva who holds that a tam is exempt from the payment of killing a slave since this difference between tam and muad is not mentioned in the Mishna. We cannot say that it was ‘left out’; because that would necessitate saying that there is a ‘second detail’ left out. The only possibility for a ‘second detail’ is the difference of payment by confession and this would present a problem to Rav Papa who holds that half damages is compensation and is paid by confession. 
  
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  Let [the braita] differentiate and teach with regard to [the case] itself; in what [case] is this statement said? [It is said] with regard to a forewarned [ox], but with regard to [one’s] innocuous [ox] etc. The Gemara introduced a Mishna in Ketubot 41a in order to prove that half damages is compensation. The Mishna says that if one confesses that his ox killed a person he is liable. The Gemara deflects this argument by saying the Mishna is discussing a muad. A tam however would be exempt because his payment is a fine for which one is not liable by his own confession. It is only upon the testimony of witnesses that he is liable.The Gemara counters: If that is so, when the Mishna wants to illustrate how one is not liable by his own confession, why does it introduce the issue of an ox killing a slave, it could have simply said, that liability by confession is limited to a muad, but if the ox is a tam, the owner is not liable by confession.Tosafot understands that the Gemara’s question refers to the case in the Mishna “my ox killed p’lonee”,1<i class="footnote">See Rashi ד"ה לפלוג וליתני בדידה who clearly says that the Gemara’s question is from the second case in the beginning of the Mishna: my ox killed p’lonee’s ox, which is a case where all agree that he would be liable by the testimony of witnesses and the debate is only whether he is liable by confession. However see Rashi to Ketubot 41b ד"ה נפלוג, where Rashi seems to say that the question is also from the case of “my ox killed p’lonee”. See Tosafot HoRosh who adopts an approach that is similar to Rashi. See Maharsho here who explains why Tosafot does not explain our Gemara as Rashi does here and insists that the Gemara’s question is from the case of “my ox killed p’lonee”.</i> and the Gemara is asking that in this case the Gemara should have said: If the ox was a tam and the owner confesses he is not liable. This presumes that there would be liability if witnesses testified that the tam ox killed p’lonee. But we have seen that only R’ Yosee HaG’leelee holds this position while others hold that there is never liability for half kofer. This is bewildering! How could the Gemara possibly say this: That the Mishna should have said, but if the ox is a tam he does not pay by his own confession, which implies that by the testimony of witnesses he does pay when his tam ox killed p’lonee.Perhaps the Tano of the Mishna in Ketubot does not hold like R’ Yosee HaG’leelee who says that tam pays half kofer2<i class="footnote">When the Gemara initially introduces the Mishna of Ketubot 41a and asks: “isn't it speaking about a tam?” there was a presumption that the Mishna is following R’ Yosee HaG’leelee, otherwise the Gemara would have no question. Even if the Mishna is speaking about a tam, there may be no liability for half kofer. Why is Tosafot only bothered with this presumption when the Gemara takes its question to the second level and argues that the Mishna should have distinguished within the case it was discussing? Why didn't Tosafot ask his question about the initial presumption of the Gemara? See אוצר התוספות note 2362.</i> and even when there are witnesses the tam owner would not be liable? That is why he must turn to the case of an ox killing a slave to show how one is exempt by his own admission. How can we present this as a question to the one who holds that half damages is a fine?
  
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  And now that you have said [that the payment of] half the damage is a fine. The Gemara says: And now that we say that half damages is a fine, a dog that eats a sheep and a cat that eats a chicken, are atypical and since the liability is a fine, it cannot be collected in Babylonia. In order to collect fines the court must consist of judges who have s’meechoh. The courts in Babylonia lacked this level of ordination and thus could not rule in matters of fines and penalties.There is a deeper issue in this Gemara. Is one liable when his animal damages in an unusual manner? If we adopt the view that half damages are a fine, it is in effect a statement that there is liability for atypical behavior. The ox is considered guarded as relates to goring people, even so when he behaves in an atypical manner and gores, his owner is liable.If we adopt the opposing view that oxen are not guarded as relates to goring, we are saying that the oxen are constantly in a state of agitation that causes them to gore. This behavior is then typical and to be expected and that is why one is liable when they damage. When we contemplate a clearly atypical behavior such as dogs eating sheep or cats eating chickens, can liability for such atypical behavior be derived from the tam ox, which is held liable only for behavior that is to be expected from him?When our Gemara says “now that we hold half damages are a fine, a dog that eats a sheep or a cat that eats a chicken is atypical and this cannot be collected in Babylonia”, does the Gemara mean that we have a source for liability, but it is limited to Eretz Yisro’ail, or perhaps the Gemara means that according to the opposing view, these too are compensation and can be collected even in Babylonia?Tosafot clearly holds that the Gemara is adopting the position that we now have a source for atypical damages. Otherwise, if we held that half damages are compensation, we would have no source for liability when the damage was atypical.It appears that it is exclusively according to the one who holds half damages are a fine that we have a source for liability of atypical damages, but collection is limited to Eretz Yisro’ail, however, according to the one who says that half damages is compensation, one is not liable at all when his animal damages in an atypical manner such as a dog eating sheep or a cat eating chickens. For from where is it to be derived that there is liability for atypical damages? For it cannot be derived from keren, because keren damages in a usual way, because ordinary oxen are not assumed to be guarded, they are usually agitated and it is to be expected that they might gore, and this behavior such as dogs eating sheep is atypical, for it is unusual for a dog to eat large sheep, and we have no source from which to derive liability for atypical behavior. However, according to the one who holds half damages is a fine, damaging that is atypical behavior is a derivative of keren, for they are both, keren and dogs that eat large sheep atypical, even though keren is distinct in the sense that there is intent to damage, which is untrue of dogs eating sheep, their intention is for their own benefit.
  
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  And if [he] seized [the property] we do not reclaim [it] from him. And if the damages victim seized, (the Gemara does not identify exactly what he seized) we do not extract from him that which he is holding of the damager. What exactly is the victim allowed to seize? May he take any of the damager’s property or are their some limitations?Rabbeinu Tam says: that it is only when he seized the damager animal itself, for example the dog or cat that ate his sheep or chicken, did the Gemara say that we do not extract from him that which he is holding. For it is only about the damaging animal that the Sages were lenient and allowed him to seize it, if he took it at the time of the damage,1<i class="footnote">See Tosafot HoRosh who says that there is no restriction to seizing at the time of the damage. Any time the victim seizes from the damager, he is permitted to hold it until the court rules that he must return whatever amount is beyond what he was allowed to take.</i> but he may not seize anything else.For if it was so, that any item the victim seizes, we do not confiscate from him, this will lead to a problem, for today or tomorrow, he, the victim, will steal all that is his, the damager’s, and we will not confiscate from him, because we, in Babylonia, do not judge fines,2<i class="footnote">Tosafot holds that any determination that the victim seized more than he is allowed to would fall under the restriction of not judging matters of fines. See Rosh who vehemently disagrees with Rabbeinu Tam in this matter. He holds that the determination that the victim has seized more than the damager owes him does not constitute “ruling in matters of fines”. Shulchon Oruch C.M. 1, 5, rules in favor of Rosh.</i> and this damager will lose more that he damaged.And that which the Gemara says in Kaitzad HoRegel (below 19b): There was a donkey that ate bread and chewed the basket and Rav Y’hudoh required its owner to pay full damages for the bread and half damages for the basket. But since half damages are a fine, Rav Y’hudoh should not have judged the matter in Babylonia?3<i class="footnote">Why does Tosafot raise this question after introducing Rabbeinu Tam’s opinion? It would seem that this question can be asked even according to Rosh, who holds that the victim can seize any of the property of the damager. אוצר התוספות note 2377 quotes חידושי הרי'ם who explains that the question is addressed specifically to Rabbeinu Tam. Choshen Mishpot 58, 5, rules that even when a borrower specifies that he is paying off one loan, the lender can claim that he accepted it as payment for a different loan, when it is to the advantage of the lender to have the second loan paid off and the first one left open. So too, when the damager paid for the bread, the victim can say that he is taking it as payment for the basket and the debt for the bread remains open. This debt can be adjudicated in Babylonia. However, according to Rabbeinu Tam who holds that the victim can only seize the damaging animal, the victim does not have the right to insist that he accepted the payment for the bread towards the basket. Thus the contradiction of the two Gemaras is only according to Rabbeinu Tam and not according to Rosh who holds that one can accept the payment for the bread towards the debt of the basket.</i>That is speaking when he, the victim, seized the donkey, or he was forcing the damager to pay by the threat of enacting a ban, because he had asked the court to set a date for the damager and the victim to travel to Eretz Yisro’ail and adjudicate the matter there, which he is entitled to do as we see in our Gemara. The damager who did not want to travel to Eretz Yisro’ail to settle the matter agreed to have the matter settled in Rav Y’hudoh’s court and he ruled that he is liable for half damages for the chewed up basket.
  
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  And the snake; these [are considered] forewarned.This Tosafot belongs to the Mishna on 15b.The wolf, lion, bear, leopard, bardelas and the snake are all muad. They are not considered muad in all matters of damage, but each one is muad only in the mode that it is usual for him to damage.The Gemara on 16b will explain that all of the methods mentioned here are the usual ways that these animals kill for food. For example: a wolf comes and tears apart its prey, or a lion comes and pounces on its prey and eats it before it dies, or the lion tore it apart and killed it in order to leave it to be eaten later. However, when damaging in a mode that is unusual, for example a lion that tore apart its prey and ate it, and so too, when damaging by other methods that are unusual, they are not muad, rather they pay half damages. Unusual damages are derivatives of keren.And when damaging in ways that are usual where the rule is that they must pay full damages, that is exclusively when they damage in the courtyard of the nizok, but when damaging in a public domain, the owner is exempt, because it is shain in a public domain, as Shmuel says in the Gemara (16b): a lion in a public domain who pounces on his prey and eats it while still alive is exempt. It is the normal way that a lion hunts for food and it is a derivative of shain which is exempt in a public domain. And even a snake that derives no pleasure from his biting, as the Gemara says in the first Perek of Taanis (8a): that all the wild beasts gather next to the snake and say to him: what pleasure do you have from biting? This of course indicates that it was known to our Sages that a snake has no physical pleasure from biting and his biting can not be classified as a derivative of shain whose characteristic is that it derives pleasure when damaging, even so, since it is usual for him, the snake, to do this, bite without deriving any pleasure, it is similar to regel, which also does not derive any pleasure from damaging and the owner is exempt in a public domain.And it, the snake biting, is not like keren after it becomes muad, even though it intends to harm, which is a characteristic of keren. This can be seen from the fact that the Mishna lists the snake together with the others.
  Rabbi Elazar says: When these [animals] are domesticated they are not [considered] forewarned. R’ Elozor says: When they, the wild beasts enumerated in the Mishna, are domesticated, they are not muad. Raising them in a household is an effective way of taming them and they are considered like an ox that is not muad until it damages three times.This is bewildering! For in the beginning of the first Perek of Sanhedrin (2a) the Mishna teaches: the lion, wolf, bear etc. [are judged by a court of twenty three when they kill a person] R’ Elozor says: whoever is first to kill them did a meritorious act. There is no need for a court trial.And R’ Yochanan explains in the Gemara (ibid. 15b): That R’ Elozor’s ruling is in effect even if they, the wild animals, did not yet kill, because they cannot be domesticated and they have no owners.1<i class="footnote">See Rashi in Sanhedrin 15b ד"ה יש להם תרבות who says that they are considered as ownerless, because their owner should not have brought them into his house in an attempt to tame them.</i> R’ Elozor’s ruling, according to R’ Yochanan’s interpretation says that wild animals cannot be tamed. This contradicts our Mishna where R’ Elozor says they can be tamed. And R’I says: That here our text is R’ Elozor who chronologically was after R’ Mayer, as they are mentioned in this order in the Braita here, and there in Sanhedrin (2a) our text is R’ Eliezer who preceded R’ Akiva, for it is taught after the statement of R’ Eliezer: R’ Akiva says etc. This indicates that the author of the preceding statement was R’ Eliezer ben Hurkanus, who preceded R’ Akiva, and not R’ Elozor ben Shamua, who followed R’ Mayer a disciple of R’ Akiva.There is another contradiction between the two Mishnayos. However, there is still a difficulty, for our Mishna teaches: And the snake is always muad and cannot be tamed, and this is according to all opinions.2<i class="footnote">The first Tano holds that wild beasts cannot be trained. R’ Elozor argues about all others, but agrees that a snake cannot be domesticated.</i> And there Resh Lokish explains: That even R’ Eliezer who says “whoever is first to kill them did a meritorious act” says so only if they killed, but if they did not kill one is not permitted to kill them.The Gemara in Sanhedrin clarifies Resh Lokish’s position:He, Resh Lokish, holds that they, the wild animals, can be domesticated and they have owners3<i class="footnote">Rashi (ibid.) ד"ה ואין להם בעלים: it is permitted to bring them into one’s house because they can be tamed and therefore the name of their owner’s is upon them.</i> and that refers even to the snake. According to Resh Lokish even R’ Eliezer, who holds that wild beasts can be killed without the benefit of a court trial, holds that a snake can be tamed, whereas in our Mishna all hold that a snake cannot be tamed.In order to reconcile the Mishnayos we must distinguish between various levels of domestication. Says Rabbeinu Tam: That there in Sanhedrin it is speaking about when the wild animals are tied with chains, for example a lion in its cage,4<i class="footnote">In Gittin 31b and in Bava Metzia 73b we find this word as a description of a carriage for transporting people. Perhaps Tosafot is describing a movable lion cage.</i> for in this manner they can be domesticated and are not considered muad to damage [and one should not kill them unless they already killed. Whereas the level of domestication we are speaking about here in our Mishna is that he, their owner, raised them in his house]. Our Mishna is saying that all agree that raising a snake in one’s house does not remove it from the classification of muad. If it is left free, it is still muad to damage. The Mishna there is saying that when chained, all the wild animals including a snake are not muad to damage.A second difference between the two Mishnayos: And one can also differentiate between the Mishnayos here and in Sanhedrin as follows: It is specifically as relates to this matter: That whoever is first should not kill them unless they killed, that Resh Lokish said that even R’ Eliezer holds they can be domesticated and are considered tame and there is no merit for killing them, but in regard to the issue of when they damage, do they pay full damages or not, in this matter, whether their domestication is considered effective domestication so that they should not be considered muad to pay full damages, or not, the Mishna in Sanhedrin is not addressing at all. That issue is addressed here in our Mishna in the dispute between the first Tano who holds that they cannot be domesticated and always pay full damage and R’ Elozor who says that with the exception of the snake they can be domesticated and pay half damages.
  
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  [The] entire [mishna] is [in accordance with the opinion of] Rabbi Tarfon. See Tosafot 14a ד"ה לא לזה ולא לזה לפירות אלא דחד, note 2, for a lengthy discussion of the material that we are discussing in this Tosafot.A short review: The text of our Gemara here and on 14a is that the area that the Braita on 14a and the Mishna on 15b are speaking about is a jointly owned courtyard where both partners, Reuven and Shimon, have the right to bring their oxen, but only one partner, Reuven, may store his produce there. This is the text of Rashi, Rif and Rambam. This area is equivalent to a public domain as far as keren is concerned, since both oxen have the right to be there as they do in a public domain and is considered Reuven’s private courtyard in regard to shain and regel, since he has exclusive rights to store his produce in the courtyard.Rabbeinu Tam vehemently disagrees with this text, because he holds that it is impossible to consider this area as a private domain for shain and regel, when the oxen that damage by shain and regel are allowed to be there. He alters the text to read: this one and that one do not have the right to bring in oxen, thus it is a private domain for shain and regel. For keren it is equivalent to a public domain, since both partners equally do not have the right to bring in their oxen.In our Gemara we are once again searching for an area that has a dual function, where for keren it will be a public domain and according to R’ Tarfon a tam will pay only half damages, whereas for shain and regel it will serve as a courtyard of the nizok where they are liable.In our Gemara we find R’ Elozor who disagreed with Rav Chisdo on 13b and 14a, expressing his opinion as to when a courtyard has a split ruling. This should be very telling about the exact dispute with Rav Chisdo. Here as well we amend the text to read: It is designated for one of them, Reuven, for produce, and not for this one, Reuven, nor for that one, Shimon, for oxen.This is bewildering! For it is to be understood from R’ Elozor1<i class="footnote">Tosafot is using the opinion expressed here as a first hand view of R’ Elozor’s opinion in this issue and therefore proceeds to ask his questions on both texts of our Gemara, which are essentially: why is R’ Elozor’s view in this issue, mentioned here on 16a ignored? Others say that our Gemara is the opinion of R’ Elozor in the name of Rav. This may not be R’ Elozor’s personal opinion in this matter and is therefore not used to verify R’ Elozor’s position in his dispute with Rav Chisdo.</i> who says the jointly owned courtyard is a private domain for shain and regel because it is designated for only one of them, Reuven, for produce, but if it would be designated for both, Reuven and Shimon, for produce, one would be exempt for shain and regel.And if so, we should resolve from this Gemara that they, Rav Chisdo and R’ Elozor, argue about the question of R’ Zeira, who asked: “How can an area be considered a courtyard of the nizok when the damager may also store his produce there?” and the solution of Abaye, who answered that it is considered the courtyard of the nizok because the damager had no right to bring his oxen there, and earlier in the Gemara on 14a, the Gemara is in doubt about whether they disagree at all. On 14a the Gemara was not sure that R’ Elozor disagrees with Rav Chisdo who holds that when even both have the right to store their produce in the courtyard it is still considered a private domain. However, here on 16a it is clear that R’ Elozor who is reconciling our Mishna in accordance with R’ Tarfon is saying that it is considered a private domain when only one, Reuven, has the right to store his produce there. R’ Elozor holds that if both have the right to store their produce there it is not a courtyard of the nizok for shain and regel. Why does the Gemara on 14a even have the slightest doubt about R’ Elozor’s position in this matter?The fact that R’ Elozor expresses his opinion here about what is considered a jointly owned courtyard with a split ruling presents a problem to the text of Rashi, Rif and Rambam as well. And according to the manuscripts that have the text that the courtyard was designated for this one, Reuven, and for that one, Shimon, for oxen, the reverse is difficult, that the Gemara should resolve that they, Rav Chisdo and R’ Elozor on 14a do not argue when the courtyard is designated for both for produce when neither has the right to bring in oxen, and they agree that this area is considered a courtyard of the nizok, and there is no dispute between them, because he, R’ Elozor, here on 16a, considers a jointly owned courtyard as a courtyard of the nizok, even though the damager has the right to leave his ox there, as he clearly states his position on this matter in our Gemara, where he says that when both have the right to bring in their oxen and only one has the right to store his produce it is a courtyard of the nizok, certainly, when the courtyard is not designated for oxen at all, it should be considered a courtyard of the nizok even though it is designated for both Reuven and Shimon for produce.2<i class="footnote">This kal v’chomer follows Tosafot’ belief that the prime factor to be considered in designating the jointly owned courtyard as a courtyard of the nizok is whether oxen may be brought into the courtyard. If the presence of oxen does not remove its status as a courtyard of the nizok, certainly the presence of Shimon’s produce, when oxen are forbidden should not affect its status as a courtyard of the nizok. Rashi as we have seen has a totally different view on this matter. The prime issue causing the designation as a courtyard of the nizok is the exclusive rights of Reuven to store his produce there. According to Rashi, Tosafot’ kal v’chomer is not compelling.</i>
  
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  [If it] is fitting for it, [then] yes; [if it] is not fitting for it, [then] no. R’ Elozor in the name of Rav said that all the cases of our Mishna can be in accord with R’ Tarfon. Rav Z’vid of N’hardo challenges this contention. The Mishna clearly states that shain is muad and pays full damages for that which is suitable for it, namely food; this implies that shain is not muad for eating things that are not suitable to be eaten such as garments and utensils. In effect this means that for eating garments and utensils the ox owner will pay only half damages, even though the damage occurred in the courtyard of the nizok. This undoubtedly does not concur with R’ Tarfon who holds that keren pays in full when the damage occurs in the nizok’s domain.Tosafot suggests that there might be another way of understanding the implication of the Mishna that shain is not a muad for garments and utensils that can concur with R’ Tarfon.We should not ask: Perhaps that, which the Gemara says that shain is a muad for eating that which is suitable for it, that means that the owner is liable to pay from his choicest assets and the payment is not limited to the value of the ox. And when the animal eats that which is not suitable for it such as garments and utensils, even though the owner pays full damages in accordance with R’ Tarfon, the Mishna is saying that he is not a muad in regard to paying from choicest assets, as the Gemara says in the second Perek (below 18b), that according to R’ Tarfon a tam pays full damages in the courtyard of the nizok, but only from its body. Thus even this sentence of the Mishna concurs with R’ Tarfon.Tosafot needs to prove that the term “it is not a muad” may be interpreted as meaning that one is not required to pay from his choicest assets, even though full payment is required.And the term muad can be used for this purpose, to indicate that the payment must be made from the choicest assets and is not limited to its body, as the Gemara says (below 18b): a chicken hopping and sends pebbles flying and they break utensils is not muad, and some say it is muad.And the dispute is about this issue, that one master who says the chicken is not muad, holds that payment is to be made only from its body, and the other master who says that the chicken is muad, holds that payment is to be made from the choicest assets of the chicken owner.1<i class="footnote">The Gemara on 18b says that the first opinion “it is not muad” follows the opinion of the Rabonon who hold that when an animal steps on a pebble and it jumps and damages, the liability is only for half payment and the second opinion that “it is muad” follows Sumchus who holds that for damage by jumping pebbles one is liable for full payment. Tosafot’ interpretation that the dispute is whether payment is from its body or from general assets is extremely difficult to understand. See שיטה מקובצת who quotes a גליון תוספות who deals with this issue.</i> We see that the term muad can be used to indicate that payment must be made from general assets and ‘not muad’ means that payment is limited to the body of the damager. So too, our Mishna that implies that an animal is not muad to eat unsuitable item, such as garments and utensils, may mean that even though full payment is required, it is limited to the value of the body of the damager.Tosafot explains why this interpretation of “it is not muad for unsuitable items” is not a viable option for our Mishna.For we are compelled to say that when our Mishna implies that when consuming unsuitable items it is not muad even though this occurs in the courtyard of the nizok, it means that the owner pays only half damages, which is not in accordance with R’ Tarfon. Because later in the second Perek (19b) the Mishna which is explaining in detail the generalities of our Mishna, clearly says in regard to the explanation of the sentence the ‘shain is muad’ that if she ate garments or utensils she pays half damages. Since the Mishna on 19b is explaining our Mishna, and it says that when the animal consumes items that are not suitable for it, which is a derivative of keren, that the payment is half damages, it is definitely not following the opinion of R’ Tarfon.
  
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  [A case] where [he] did not bow during [the blessing of] thanksgiving. Seven years after a person’s death his spine becomes a snake if he did not bow when reciting modim. What relationship is there between the sin of not bowing by modim and the spine becoming a snake?Because it is a mitzvah to bow when reciting modim, and when straightening after bowing, one must straighten himself like a snake, who raises his head first and then his body, so that it should not appear as if the bowing is a burden upon him, as we find about Rav Shaishes in Masechet B’rochos (14b).The punishment is measure for measure, since he did not bow and then raise his spine like a snake does, his spine becomes a snake. This is his punishment, for it is humiliating for him that his spine becomes a snake.גליון Gilyon offers a second explanation for the connection between the sin of not bowing when reciting modim and the punishment of the spine becoming a snake. There are those who explain the relevance of the spine becoming a snake as follows: Because the Midrosh says that there is a bone (vertebrae) in the spine of a person from which he is resurrected in the time to come, when Hashem will resurrect the dead, and that bone is so strong and hard that fire cannot consume it. Thus, it survives through the millennium and will be the initial component from which his body will be resurrected.And now, when that bone becomes a snake, he will not be resurrected because the bone that is used as the initial component of his resurrected body will not be available because it is a snake and will not live in the time to come, when the dead will be resurrected. It is not logical to say that one will punished so harshly for committing this relatively minor transgression.1<i class="footnote">See Maharsho in חידושי אגדות who explains the deeper significance of not bowing when reciting modim as a rebellion against the authority of Hashem, much in the same way the snake rebelled against Hashem’s dominion. Thus, the transgression although minor on the surface, is very telling about the depths of one’s feeling toward his relationship with Hashem and is deserving of such a harsh punishment.</i> For we have learned in a Mishna (Sanhedrin 90a): All of Yisro’ail has a share in the world to come. Even though there are exceptions as mentioned in the Mishna there, not bowing when reciting modim is not listed among the exceptions nor is it as severe a transgression as some of the exceptions and it cannot be compared to them. 
  
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  [If] it clawed [its prey] and ate [it].The explanation of the word דורס – he pounces, is that he eats his prey while it is still alive, as the Gemara says in Perek Ailu Ovrim (P’sochim 49b):Just as a lion pounces upon his prey and eats, and does not wait for it to die, so too, the ignorant etc. We see that the lion does not allow his prey to die before eating it.
  
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  But isn't it taught [in a baraita]: And similarly, [in the case of] a wild animal? Shmuel says that it is the nature of a lion to eat its prey while still alive. When he does what is usual for him, he is liable as a derivative of shain – for full payment and only in the courtyard of the nizok. When he tears apart his prey, allowing it to die and then eats it, his behavior is unusual and he is liable as a derivative of keren – for half damages and in a public domain as well.The Gemara now introduces a Braita that says: when a wild animal enters a courtyard a tears apart it prey, allowing it to die, it is liable for full payment. We see that even when tearing apart, it is considered usual and there is liability as a derivative of shain. Tosafot wonders how this Braita can be presented as a contradiction to Shmuel’s statement:This is bewildering! Let us interpret the Braita as speaking about a wolf, for whom it is usual to tear apart and wait for its prey to die? We can answer: That the Braita teaches us about an unspecified wild animal and that is to be understood as speaking about both a lion and a wolf. Since the Braita does not specify which wild animal it is discussing, the term ‘wild animal’ is inclusive we cannot exclude a lion.There is perhaps another way the Gemara could have deflected the question from the Braita. The Gemara could not have answered that the Braita follows R’ Tarfon who says (earlier 14a): Keren, which is unusual, when damaging in the courtyard of the nizok must pay full damages. Even if when the lion tears apart its prey and allows it to die it is unusual and a derivative of keren, if it occurs in the courtyard of the nizok, it is liable for full payment according to R’ Tarfon. We can deflect the Gemara’s question by saying that this is the opinion of the Braita. This is not a proper deflection, because this Braita was taught in regard to derivatives of shain, as the Gemara concludes. The Braita must be speaking about usual behavior in order for this to be treated as a derivative of shain. This is a contradiction to Shmuel who says that when a lion waits for its prey to die, it is unusual behavior and a derivative of keren.
  
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  This baraita was taught with regard to a domesticated lion and in accordance with [the opinion] of Rabbi Elazar. Raveeno is defending Shmuel who said that it is unusual for a lion to tear apart its prey and wait for it to die before eating it, from the Braita that classifies such behavior as shain which is usual behavior. The Braita is speaking about an unusual situation, the lion was domesticated, thus it is expected not to kill at all and this follows R’ Elozor who holds that domestication is effective. The Gemara will say that since this behavior is unusual, the Braita is telling us that if the lion did it three times, he becomes muad and is liable for full payment.There is a fairly obvious difficulty with Raveeno’s defense of Shmuel. If we are ultimately going to say that we are speaking of when the lion became muad to do this, why is it necessary to bring in R’ Elozor and say that it was domesticated and therefore unexpected behavior? The Gemara could simply say that it became muad to tear apart its prey and wait for it to die. Even though it is a derivative of keren, it is liable for full payment because it is now muad.Tosafot addresses this difficulty:Raveeno did not mention R’ Elozor as the author of the Braita to exclude the Rabonon who disagree with R’ Elozor and hold that domestication is ineffective, because according to the Rabonon as well, we can say that the Braita is speaking of when the lion became muad to do something which is unusual such as to tear apart and wait for its prey to die.And this is what Raveeno is saying: That you should not say that the Braita is saying that because it is usual for the lion to tear apart its prey and wait for it to die it pays full damages, for we can even interpret this Braita according to R’ Elozor who holds that domestication is effective and it is certainly not usual for this lion to tear apart and wait for its prey to die and even so his owner will be liable for full damages and that is when he became muad to tear apart his prey as the Gemara continues to explain.And for that very same reason that he is liable according to R’ Elozor, which is that he became muad, he will be liable according to the Rabonon, because according to the Rabonon tearing apart and waiting for its prey to die is unusual behavior for a lion and is liable for full damages only after becoming muad.According to this explanation, when the Raveeno says ואליבא דר' אלעזר – and according to R’ Elozor, it means even according to R’ Elozor and certainly according to the Rabonon. Tosafot now suggests an alternative explanation, where the meaning of ואליבא דר' אלעזר – and according to R’ Elozor – will be that the Braita follows R’ Elozor exclusively. And we can also answer: That Raveeno specifically interpreted the Braita according to R’ Elozor, because the Braita uses the word ‘wild animal’ anonymously which implies that it is speaking of both a lion and a wolf. This is reasonable according to R’ Elozor, who holds that since they can and have been domesticated, it is not usual for either of them to tear apart and wait for their prey to die, and the Braita must be speaking of when they became muad and that is why they both pay full damages.However, according to the Rabonon who hold that wild beasts cannot be domesticated, and it is usual for a wolf to tear apart its prey and wait for it to die, even when it did not become muad, it would also pay full damages. Why is the Braita discussing a wolf that need not be a muad and a lion that must be a muad to be liable for full damages in the same sentence? And it is awkward to set up the Braita as speaking about two separate cases: a wolf that did not become muad by tearing apart three times and a lion that did become muad. Raveeno therefore says that this explanation of the Braita, that it is speaking of when the wolf and the lion became muad is reasonable only according to R’ Elozor, who holds that they first became domesticated and they are therefore tam and they then became muad by tearing apart three times.If you ask: According to what the Gemara holds now, that the Braita is speaking about a derivative of keren, why does the Braita mention that they entered into the courtyard of the nizok, keren is liable even in a public domain?We can answer: The Braita mentioned that the ‘wild animal’ entered into the courtyard of the nizok because it also speaks of a wolf. Because as soon as the wolf becomes muad by tearing apart three times, he reverts to his original status and tearing apart is the equivalent of shain which is exempt in a public domain. The Braita mentions that the ‘wild animal’ entered the courtyard of the nizok, because the wolf will only be liable in the courtyard of the nizok. The lion, however, will be liable even in a public domain, because when he tears apart and allows his prey to die, that is not usual and it is a derivative of keren which is liable in a public domain.
  
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  They cast suspicion upon him of [intercourse with] a harlot. The word זונה is often used to describe a harlot. Tosafot here views the word in a more technical sense. Women that have had illicit relations with men who are prohibited to them are in the category of זונה and may not marry a Kohain. Yirm’yoh was a Kohain. The people of his generation suspected him of cohabiting with a zonoh. See Artscroll notes 32 and 33.For Yirm’yoh was a Kohain and it is prohibited for a Kohain to have relations with a zonoh. 
  
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  Even at a time when they perform [acts of] charity.We do not have in our text the word Yisro’ail because this was not a curse against all Jews, but rather it refers to the people of Anosos, Yirm’yoh’s home town. They were the ones who persecuted him. His curse was directed only against them.
  [To stumble] before you, this is charity. Let them be made to stumble before you (Yirm’yoh 18, 23). Our Gemara interprets the stumbling as pertaining to the merit of the mitzvah of giving charity. Where is there any indication in the verse that Yirm’yoh is speaking about charity? Tosafot explains:As it is written (Y’shayoh 58, 8), “and your charity shall go before you”. We see that the word ‘לפניך - before you’ is used together with צדקך - your charity. So too, the same word לפניך - before you, in the verse in Yirm’yoh is a reference to the mitzvah of charity. See Artscroll note 40.
  
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  [This teaches] that they established a yeshiva at his grave. Tosafot is explaining why the Gemara relates this specific honor to Hizkiyah, after all there is no indication in the verse that the honor was establishing an academy at his grave.1<i class="footnote">Perhaps the phrase “and they did him honor” implies that the honor was of a kind that was specific to him, in recognition of what was the greatest accomplishment of his life – the spreading of Torah.</i>Because he increased Torah study in Yisro’ail as the Gemara says in Chailek (Sanhedrin 94b): That during the reign of Hizkiyah they searched from Dan to Beersheba and they did not find a man, woman, boy or girl who was not proficient in the complex laws of tumoh and taharoh. Since Hizkiyah made such a great contribution to the study of Torah it is reasonable that they honored him in a way that would stress the importance of his contribution – by establishing an academy to study Torah at this grave.Tosafot points out that there is a legal problem with learning Torah on a grave.The academy was not directly on his grave, but at a distance of four cubits, where there is no ‘ridiculing the poor’. The Gemara in B’rochos 18a says that one who performs mitzvos in close proximity to a grave is transgressing the verse in Mishlay 17, 5, that speaks of ridiculing the poor. The dead are considered ‘poor’ because they cannot perform mitzvos. When one perform mitzvos or studies Torah in close proximity to the grave it is as if he is ridiculing the departed who can no longer perform mitzvos. Tosafot concludes that an academy directly above Hizkiyah’s grave would be a violation of the Gemara in B’rochos 18a. See Artscroll note 43.2<i class="footnote">See Artscroll note 43 for a dissenting opinion.</i>
  
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  Thirty-six thousand [men]. The honor accorded Hizkiyah was that thirty six thousand men went out with bared shoulders as a sign of honor and mourning for the departed king. Is there any indication in the verse to this amount of people? Tosafot explains:The word לו in “and they did <u>him</u> honor” is numerically this value.1<i class="footnote">ל = 30, ו = 6</i>
  
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  But didn't they [also] do this before Ahab? R’ Y’hudoh said that the honor accorded Hizkiyah was the massive size of his funeral – thirty six thousand people who bared their shoulders. R' Neḥemya disagrees with this interpretation of the ‘honor’, because we find that even Achov who was a wicked king had a very large funeral. The verse cannot mean that the ‘honor’ of Hizkiyah is a massive funeral, if we find that even the wicked Achov had a very large funeral. But where do we find that Achov had a very large funeral? It is certainly not mentioned in the N’vee’im. Says Tosafot: That they made a massive eulogy for him, Achov, as the Gemara says in M’giloh (3a): The prophet Zechariah 12, 11, speaks of the eulogy of Hadrimon son of Tavrimon. On the surface the verse is extremely difficult to understand, there is no such known person in Tanach. The Targum there clarifies the matter. The verse means: like the eulogy of Achov ben Omree who was killed by Hadrimon ben Tavrimon. And that occurred during a battle when there were many people, and they all eulogized him. This is the source for the large funeral of Achov that R' Neḥemya referred to.But the verse in M’lochim seems to contradict the Targum, which says that the people eulogized Achov and seemingly mourned his death. And even though it is written about the death of Achov (M’lochim 1, 22, 36) and the ‘joy’ went through the encampment, and the Gemara says (Sanhedrin 39b) as an explanation of the use of the word רנה, With the destruction of the wicked comes joy (Mishlay 11, 10), with the loss of Achov ben Omree there was joy. It is clear from the Gemara’s understanding of the verse in M’lochim that there was joy, not mourning, at the death of Achov.1<i class="footnote">R’ Yacov of Emden suggests that there may be no contradiction at all. The very same people, who acted as mourners from fear of reprisal by Achov’s followers, were inwardly joyous about the death of the evil king.</i>That was for the righteous of the generation, but his servants and those who loved him, were eulogizing him. Both are true. There was a massive eulogy for him by his servants and admirers. There was also profound joy for the righteous who saw in his death a victory over evil.
  
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  Rather, that they laid a Torah scroll upon his bier. Rather, says R' Neḥemya, the ‘honor’ accorded Hizkiyah was that they placed a Torah scroll on his bier.In Masechet Moaid Koton 25a the Gemara relates that when Rav Huno passed away, they contemplated placing a Torah scroll on his bier. Rav Chisdo objected. His argument was that Rav Huno held that it is forbidden to sit on a bed where a Torah scroll is resting. If so, why should we do for him in death that which he held was forbidden while alive?Even though we find in the last Perek of Mo’aid Koton (25a) about Rav Huno, for whom they contemplated placing a Torah scroll on his bier, and it is to be understood from the Gemara there that it is forbidden to do so, place a Torah scroll on a bier,1<i class="footnote">See Shulchon Oruch Yoreh Dai’oh 353, 2, who rules in accordance with this opinion that it is forbidden to place a Torah scroll on a bier. See also Taz and Shach there.</i> because it is forbidden to sit on a bed that has a Torah scroll resting on it.There is another Gemara in M’nochos 32b where it seems that R' Neḥemya’s explanation of Hizkiyah’s ‘honor’ is relevant, but the Gemara there ignores it.And in HaKomaitz Rabbah (M’nochos 32b) there is a dispute of amoraim, Rav Huno holds that it is forbidden to sit on a bed that has a Torah scroll resting on it2<i class="footnote">See Shulchon Oruch Yoreh Dai’oh 282, 7, who rules like this opinion. See G’ro there 17, who explains that although we generally rule in favor of R’ Yochanan when he argues with Rav Huno, this is an exception, because The Yerushalmi also rules in favor of Rav Huno.</i> and R’ Yochanan permits it, we cannot challenge Rav Huno who holds that it is forbidden from R’ N‘chemyoh who says here that they put a Torah scroll on Hizkiyah’s bier, because Hizkiyah is different since he was extremely great in Torah and good deeds. Even though for somebody of Rav Huno’s stature it may be forbidden, for Hizkiyah who was so righteous it is permitted, because he personified the ultimate Torah leader more so than others and is entitled to have the honor of a Torah scroll placed on his bier. 
  
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  But didn't the Master say: Torah study is great because [it] leads to performance [of the mitzvoth]? R’ Yochanan ruled that we may place a Torah scroll on the bier of a righteous person and announce that he fulfilled all that is written in the Torah, but we may not say that he taught all that is written in the Torah. It seems that fulfilling all that is written in the Torah is less of an accomplishment than teaching all that is written in the Torah. We may accord a righteous person the lesser honor of saying that he fulfilled, but not the greater honor that he taught all of the Torah. That honor is reserved for the righteous of Hizkiyah’s caliber.The Gemara challenges this by asking: But the master taught that learning Torah is great because it leads one to performing the mitzvos of the Torah? What exact point is the Gemara trying to make by citing the teaching that Torah study is great because it leads to performance of the mitzvos?Tosafot cites Rashi’s explanation, argues with it and eventually introduces his own explanation.Rashi explains: We see that performance of the mitzvos is greater, because we are saying that the greatness of studying the Torah is that it leads one to fulfilling the Torah, obviously fulfilling must be the greater of the two. This is a contradiction to R’ Yochanan who said that we may say about a righteous person that he fulfilled the Torah but not that he taught the Torah. R’ Yochanan is saying that announcing that one taught is the greater honor, while we have learned that fulfilling the Torah is the greater of the two. Rabbeinu Tam finds this difficult: to the contrary, from this statement, the Gemara deduces in the end of the first Perek of Kidushin (40b) that learning Torah is greater than the performance of Mitzvos.In regard to the elders who were reclined in the attic of the house of Nitzoh in Lod, and the this question was raised before them: Is studying Torah greater or performance of Mitzvos greater?They were all counted and said: studying is greater because it leads one to performance. It seems that the Gemara there is clearly saying that studying Torah is greater. If so, what is the Gemara’s question here to R’ Yochanan who is also saying that announcing that one studied the entire Torah is the greater honor.Rabbeinu Tam adopts a new approach to our Gemara. The Gemara at this point is not addressing the issue of whether studying is greater than performance, it is addressing the essence of R’ Yochanan’s statement that we may say that a righteous person fulfilled all of the Torah, but not that he studied all of the Torah. And Rabbeinu Tam says: that this is the explanation of our Gemara: but the Master said that it is studying that leads one to fulfilling, and when we say that he fulfilled the Torah, we are in effect saying that he learned all of the Torah, for if he did not learn, how could he fulfill the Torah, for it is the learning of Torah that leads one to fulfilling the Torah? Without learning how to perform the Mitzvos one cannot fulfill them.It did not enter upon the mind of the Gemara at this time to differentiate between studying Torah and teaching Torah.And the Gemara answers: that this statement of R’ Yochanan is speaking about teaching others, this we can certainly not say about any deceased righteous person, because that is certainly the strongest praise that one can possibly say about a person because he leads the multitudes to fulfilling the Torah when he teaches them. This level of praise is reserved for Hizkiyah and may not be said about other righteous people. The Gemara was correct in its understanding that saying that one fulfilled all of the Torah is equivalent to saying that he learned all of the Torah, for if he did not learn how could he fulfill? R’ Yochanan did not say that we cannot announce that a person learned all of the Torah. What he said is that we may not announce that he taught others all of the Torah. This praise is reserved only for those of Hizkiyah’s caliber.According to Rabbeinu Tam and Rashi the greatest praise that could possibly be said about a person is that he taught others all of the Torah. This is reserved for Hizkiyah and others of his caliber. We may say that a person studied and fulfilled all of the Torah. Tosafot will now present the opinion of Sh’iltos of Rav Achai who has a radically different approach to our Gemara. His approach is based on a variant text.According to the text of our Gemara, Rabbah bar Bar Chonoh asked R’ Yochanan about the issue that was discussed in our Gemara; is it so that we may not say that a righteous person fulfilled all of the Torah? R’ Yochanan’s response was directly about this issue and he answered that we may announce that a person fulfilled all of the Torah, but we may not announce that he taught all of the Torah.According to the text of Shiltos Rabbah bar Bar Chonoh asked nothing about this issue, nor did R’ Yochanan say anything about it. The Gemara is analyzing R’ Yochanan’s behavior when faced with this dilemma. He was asked about a passage of Gemara while he needed to put on his t’filin. How did R’ Yochanan act? In the Sh’iltos of Rav Achai Gaon, we do not have the text that R’ Yochanan responded we may say that he performed the Mitzvos but not that he taught. This issue was not raised at all. When Rabbah bar Bar Chonoh says that he was asking R’ Yochanan about a teaching, he was not referring to this issue at all. He was speaking about learning in general. He is saying that when I asked R’ Yochanan a question about what I was studying, this is how he behaved.Rather, the text is: and he, R’ Yochanan, put on his T’filin and then told us the answer to our question and nothing more is in the text of the Gemara. There is no reference to the issue of what may be announced at a righteous person’s funeral.And the Gemara asks: How did he put on t’filin first before he told them the teaching that they had asked him about? But study is greater than fulfilling and he should have taught them the Gemara that they needed to know, which is Torah study, before he put on his t’filin, which is performance of mitzvos, because studying takes precedence?And the Gemara answers: This is speaking about learning and that is speaking about teaching. For learning oneself, study is greater because it leads one to fulfilling, but teaching others is not as vital and it is for this reason that he put on t’filin first before teaching Rabbah bar Bar Chonoh what he needed to know.There is a radical difference between Rashi and Rabbeinu Tam who both hold that the greatest honor that can be accorded to a person is to announce that he taught Torah to others and Sh’iltos who holds that teaching others is not as important as learning oneself. We will return to you Arbo’oh Ovos!