Commentary for Bava Kamma 3:8

These are called Avos because they are written in the Torah explicitly, and the Gemara explains the Toldos are.

There are places that do not use the word "hen (they)," as is the case here, as well as in the Gemara regarding "There are 13 main categories of damages" and in the case of "There are 4... (please some amend translation of this case)." And there are places that do use the word "hen" as in the case of "There are for guardians" and "There are 4 new years."

The order in which they are written in the Parsha they are ordered in the Mishna, for the first Parsha discusses the Ox, the second, Pit...

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 See שיטה מקובצת for various opinions who disagree with Rashi and Tosafot about the order that the tanna chose for our Mishna.

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

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.¹Some 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.
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 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. 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 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.
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 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.