Commentary for Bava Kamma 11:16

If, according to Rav, who says, etc. The Gemara is now searching for an application of the common characteristic method from which we learn a category of damage that is not specifically mentioned in the Torah. The Gemara suggested that one’s stone, knife or load which was left where the wind blew them away and brought them to a rest in a public domain might qualify. The Gemara said that if the owner relinquished ownership, that can be learned directly from bor and no other source is necessary. According to Shmuel, even if the owner did not relinquish ownership, that too can be derived from bor. In some texts of the Gemara it says: that if the owner relinquished ownership, according to Rav that can be learned directly from shor. See Tosafot 3b ד"ה משורו where he explains that according to Rav shor alone is an insufficient source and it is necessary to use bor as a second source for liability according to Rav. If so, the Gemara could not ask here: that according to Rav, they can be derived from shor, for they cannot be derived from shor alone. According to Rav they are a perfect example of what can and needs to be derived from the common characteristic.
We do not have this text as we explained earlier (3b תוספות ד"ה משורו).

What about Pit in that there is no other force involved with it? The Gemara rejects the original contention that a stone, knife and load that were left where the wind could blow them away, which then came to rest in a public domain and damaged there, could be derived from bor. The Gemara refutes the comparison to bor by arguing that שכן אין כח אחר מעורב בו the creation of a bor comes about solely through the efforts of the bor digger whereas the stone, knife and load must combine with another power, the wind, to become a damager. There is another refutation that the Gemara might have used to show the strength of bor as compared to the weak point of one’s stone, knife or load: שכן מעשיו גרמו לו, that his own action caused the damage, which is true of bor but not of the stone, knife or load which were assisted by the wind. The Gemara later (on this page) uses this refutation. Why does the Gemara sometimes use one description of bor as a refutation and sometimes another? Tosafot addresses this issue.

למאי דפריך ¹It seems that the proper text is כדפרישית as we explained, not כדפריך -as was asked.דלא חשיב אש מעשיו גרמו לו לפי שהרוח מסייע לו ה"מ למפרך הכא מה לבור שכן מעשיו גרמו לו תאמר באבנו וסכינו

According to what we explained (5b Tosafot כי שדית) that aish cannot be described as “his action causing the damage” because the wind assists the fire and the damager is therefore not totally a result of his own actions, the Gemara could have refuted the derivation from bor by saying; how can you compare the stone, knife and load to bor where his own action causes the damage? Is it logical to say that the same rule should apply to one’s stone, knife and load where it is not only his action that caused the damage, but the wind as well assisted in the creation of the damager? Why does the Gemara choose to refute the derivation from bor with the argument that the stone, knife and load had to combine with another power?
Tosafot is now going to tell us that the less avos that can be used to contradict the refutation, the better the refutation. If there are many avos that show that a refutation is not true, then initially the refutation is not very strong.
But because the refutation of the comparison to bor, that bor is not combined with any other power is a more effective refutation, the Gemara uses this refutation. Why is this refutation more effective? Because one cannot rejoin this refutation by presenting shor as proof that this factor does not preclude the status of a damager. Shor definitely does not have the weakness that it is combined with another power. It does have the weakness that it is not one’s action that caused the damage; the action of the shor is not one’s own action. Shor could be presented as proof that the refutation, it was not caused by his own action is inaccurate, but it cannot be presented as proof that the refutation it is combined with another power is inaccurate, because shor does not combine with another power. Only aish alone can be presented as proof that combining with another power does not preclude designation as a damager. Since only aish can be used as a rejoinder to the refutation, the stone, knife and load combine with another power, the Gemara chooses that refutation, as opposed to the refutation, a bor is his own action, which could have been refuted by shor as well as aish.
In the Gemara’s next answer of what is learned from the common characteristic the Gemara discusses a stone that was left in a public domain but did not damage at the location where the owner left it. It was rolled about in the public domain and damaged after it landed. There, the Gemara does use the refutation; that a bor is stronger because his own action caused the damage as opposed to the stone that was rolled about which caused damage only after someone else rolled it to its new location.
Why is that refutation of the comparison to bor used there and not the refutation that bor is not combined with another power as opposed to the stone which was kicked about that needs to combine with another power? And later by the bor that is rolled about by people or animals that kick the stone, the Gemara refutes the comparison to bor with the argument; how can you compare the kicked stone to bor? Bor has the quality that his own action caused the damage, which the kicked stone does not. It was the one who rolled it to its final location whose action caused the damage. Why does the Gemara use the weaker refutation that can be disproved by shor and aish and not the stronger refutation, that another power combined with his own which can only be disproved by aish? For it is not possible there to refute the comparison to bor with the argument that the bor is not combined with another power as opposed to the rolled stone which combines with another power, for how would we say at the conclusion of the argument; can you say the same for a bor that is rolled about which combines with another power that it is also liable? That argument would imply that the stone that was rolled about only becomes a bor by combining with another power. But that is not so, because it initially becomes a bor without combining with any other power when it was placed in the public domain. At that point it was a bor without combining with any other power, later when it damaged after it was kicked about, the damage was not the result of his action. It was the result of the action of those who kicked the stone to its new location.

To add [the halakha concerning] the rolled pit. In our text of the Gemara, which is Rashi’s text, the Gemara speaks only of a stone that was rolled to a second location and damaged there. The possibility of the stone damaging as it rolled is not discussed. There are two possibilities:
a) That the kicker is liable because it is his power that caused the damage.
b) There is a shared liability. The obstacle owner is liable for leaving the stone in a public domain and the kicker is liable for not being careful as he walked and kicked the stone to the point that it damaged.
Tosafot will discuss both possibilities.
In all the books it is written after the Gemara mentions a bor that was rolled about; if as they were moving they damaged, it is his, the kicker’s, power? His power is an extension of himself and the kicker should be liable as a person who damages. And Rashi says that we should not include this text in the Gemara. And his reason is because the Gemara says later in המניח (Bava Kamma 27b) it is not the norm for people to be cautious as they walk on the roads. One cannot be held liable for kicking a stone on the road since he usually would not notice that the stone was there.
And the one who left the obstacle there also cannot be held liable as a person who damages through his power which is an extension of himself, but only because he left his stone in an area where the likelihood of it being rolled about is comparable to a common wind and it, the stone, is like his fire which damages together with the wind. So too, the stone that was left where people would kick it about damages together with the power of the people who kick it. According to Rashi, the rolling stone cannot be thought of as the power of the person who left it there or the power of the kickers. It can only be thought of as the aish of the person who left it in the public domain where it would travel by the power of people or animals that kicked it.
And one should not erase this text because of this, Rashi’s dissatisfaction with the text. Because as far as people not walking with such force that a stone might spring and damage, it certainly is the norm to be cautious about how one is walking and he should be held liable if he kicks a stone and it damages others. And that is why the Gemara asks according to the variant text; it is his, the kicker’s, power and the kicker should be entirely liable and not the obstacle owner? This is possibility a).¹ See Rashba who has a slightly different text of this Tosafot that suggests that there should be shared liability between the obstacle owner and the kicker.
Tosafot concludes that when a person leaves an object in a public domain and another person kicks it and it damages, it is the kicker who is liable. Tosafot shows us that there is a parallel case where the Gemara indicates otherwise.
And even though as far as a dog that took a biscuit together with a coal and went to a wheat stack etc. and subsequently burned the wheat stack (Bava Kamma 21b) the Gemara asks (Bava Kamma 23a); and let the coal owner also be liable? Because he is the owner of the obstacle, the coal that burned the wheat stack. We see that the Gemara there holds that the coal owner should also be liable (possibility b) and not only the transporter of the coal while here the Gemara is arguing that the transporter, the kicker should be liable and not the stone owner. That is because the dog is not an intelligent being and should therefore not be entirely liable for transporting the coal that was negligently left where he could take it, but here the roller is an intelligent being and should be entirely liable for kicking the stone.
We will prove this point, that an intelligent being is more readily liable for transporting or using a damager than the creator of the damager. For if one kindled a fire and another person burned his neighbor’s garment with that fire, or if one dug a bor and another came and pushed an ox into the bor, it is not logical that the bor owner or aish owner be liable. Although they created the damager, it is the other person who used the damager who is liable, so too, when one leaves a stone in a public domain and another kicks the stone and it damages it is the kicker who should be liable.
Up until this point Tosafot has focused on a stone left in a public domain that was kicked by a person. He has presented his reasons for the liability of the kicker. However the Gemara discusses a stone that was kicked by animals as well. The animal is not an intelligent being. Should he also be entirely liable for damages caused by his kicking the stone?
And the stone that was rolled by the feet of an animal, if it damaged as it moved both should be liable,² For a detailed discussion of the nature of this shared liability, see Rosh and Maharsho.the animal owner and the obstacle owner.
One of Tosafot primary arguments is that a person who uses someone else’s damager such as kicker who kicks another’s stone, should be entirely liable, just as a person who pushes an ox into a bor. This ruling, that one who pushes an ox into a bor is exclusively liable is now scrutinized.
And that which the Gemara says later in Chapter הפרה (Bava Kamma 53b), an ox and a person who pushed another ox into a bor, as far as damages are concerned they are all liable. This implies that even the bor owner is partially liable. This contradicts our assumption that a person who pushes an ox into a bor is entirely liable. How do we reconcile this contradiction? One must say that there the Gemara is speaking about a person who did not intend to push the ox into the bor. And since he had no intent at all, the person is similar to an animal and the bor owner is also liable as is the non-intending person.
Now that Tosafot concludes that Rovo on 53b is discussing a non-intending person, we must view the remainder of Rovo’s statement and see if a non-intending person is compatible with other rulings of Rovo in that Gemara.
And that which the Gemara says there, in the discussion of an ox and a person who pushed another ox into a bor, as far as the matter of the four things and the payment for fetuses are concerned; only a person is liable. Those four things are: damages, pain, medical expenses and time lost from work, but for embarrassment one is not liable unless he intended to damage as the Gemara says in החובל (Bava Kamma 86a). And the four things of that Gemara on 53b are not the same as the four things mentioned earlier on 5b, for there (on 4b) he does not count damages among the four. The fourth is embarrassment.
We have shown that the four things mentioned by Rovo could be speaking about a person who damaged unintentionally. There are other damagers that Rovo discusses there on 53b.
And that which Rovo says (later 53b) as to the matter of kofer that one is liable to pay when his ox kills a person and the thirty sh’kolim of a slave that one is liable to pay when his ox kills a slave, the ox alone is liable. One must say that the ox is liable only when it intended, even though the ox being discussed is not similar to the person, about whom we have concluded that he did not have intention to harm. For without intention of the ox to harm there is no payment of kofer or thirty sh’kolim of a slave as the Gemara says at the end of שור שנגח ד' וה' (Bava Kamma 43a).

If [you would say so] regarding the pit which [was dug] without permission. It appears from the Gemara’s refutation that the bor discussed in the Torah was never allowed to be there and it is always illegal. What about a bor that a person dug on his own premises? He certainly was allowed to dig it on his own property. Later at some time he relinquishes ownership of that property and it becomes part of the public domain. Here it seems that we have a situation where the bor was created legally and even so the original owner is liable. Why does the Gemara say that the presence of a bor in the public domain is always illegal? Tosafot explains:
For even if the bor was made legally in the bor owner’s property and afterwards he relinquished his ownership, as soon as he relinquishes ownership and he allows the public access to the bor, that is illegal. The very act of relinquishing ownership which gives the public access to a bor that could harm them is illegal. See Otzar HaTosafot note 985 who elaborates on this matter.

Would you say [the same] regarding these [which were dug] with permission? [The case of] the ox proves [otherwise]. When faced with the refutation that bor is liable because it was illegal to have the bor in a public domain as opposed to emptying the waste pipes or allowing the sewage into the public domain which is legal and therefore one might not be liable, the Gemara presents shor as proof that one may legally be in the area where the damage occurred and still be liable. The shor may of course be in the public domain and even so he is liable for damaging. Tosafot scrutinizes the assumption that the shor’s presence in the area that he damages is legal.
And if you ask: According to the one who holds that the Tano of our Mishna taught shor to inform us that he is liable for damage he causes with his regel, how does the Gemara say that shor proves that even when one is legally in the place that he damages he is liable, but regel is only liable when the ox damages on the property of the victim and he has no legal right to be there?
And we can answer: the regel to which the Gemara is referring is for example, the animal was walking in a public domain and it causes stones to jump and subsequently the stones damaged vessels in a private domain bordering the public domain for which the ox owner is liable, as the Gemara says later on Bava Kamma 19a. It was legal for the ox to be in the public domain and even so his owner is liable. This proves that one can be liable even if it was legal to be in the place where he caused the damage.