Commentary for Bava Kamma 12:10

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.

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?¹If 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.
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 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.
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.

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 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. 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.

[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.

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 victim
On 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,¹See 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. 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 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.

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 sacrifices¹The 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. ²Many 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. and by a kal v’chomer for temple treasury property.
And if you ask: how can we learn shain³The same question and answer apply to regel whose damage is common as compared to other avos. 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 hands⁴A euphemism for damaging with one’s person. than to be liable for “sending his animal”.⁵The verse that discusses shain begins with the expression “he will send his animal”.
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,⁶A 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. 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.