Commentary for Bava Kamma 13:5

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.

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.

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 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.

"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.

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.

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,¹Tosafot 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. we should not give him even a small amount²This explanation follows the Tiferes Shmuel mentioned earlier. 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.³Some 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.
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,⁴Compare 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. 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 him⁵Compare 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. 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 need⁶Rif 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. 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.