Commentary for Bava Kamma 3:2

Not, here is, Bull like the Mave - It is to say, had it been written, in the torah (only) Ox, does not come out Mave from it, and due to this it needed to write it, and for this it took the first part to be like the Mave, and did not take to it like the order, (i.e.) not in this the bull like the pit, more so due to, that it was not going to be able to teach, not this and this that have in them breath of life, that here, pit not in it breath of life, and a reason that is different, that there is here a novelty to teach us, that even though there is in both of them breath of life, does not come out one from its fellow. And the Gemara explains (later) what "not this" (lo harei) that it is said here.

[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.¹This 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).
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.

Like the fire, that does not in it have air of life - And if not written by the Torah one would have said to exempt.

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.¹This 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. As we say later in the Gemara (5b). the tanna wanted to be lengthy in order to make the Torah great and beautify it.²As 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.
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 liable
B) 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 Mekhilta³The M’chilto is a collection of Braitas that expound the verses of the Torah. The collection of Braitas that explains Shemot is M’chilto. 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