Commentary for Bava Kamma 12:5
היכי דמי אי דאפקרה בין לרב בין לשמואל היינו בור מאי שנא בור דהזיקו מצוי ושמירתו עליך הני נמי הזיקן מצוי ושמירתן עליך
But what were the circumstances [of the wall and the tree]? If they were abandoned, then according to both Rab and Samuel,<span class="x" onmousemove="('comment',' Infra 28b. ');"><sup>4</sup></span>
Tosafot on Bava Kamma
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.
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.
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Tosafot on Bava Kamma
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.
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.
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