Commentary for Bava Kamma 6:9
ואמאי קרי לה תולדה דרגל לשלם מן העלייה
will] refer to phlegm<span class="x" onmousemove="('comment',' I.e., the derivative of Man. ');"><sup>7</sup></span>
Tosafot on Bava Kamma
We derive it from 'his ox.' Rav says that if one owns a stone, knife or package, they cannot be considered a bor. It is Rav’s opinion that a bor is ownerless by definition. If so, from where can we learn that if one’s stone, knife or package damaged somebody, that the owner is liable? The Gemara says that it can be derived from shor, his ox. His ox is his property and he is liable for damage that it does, so too, he is liable for his stone that is his property. We have learned that shor has three avos. From which one do we learn that one is liable for the damage caused by his stone? This is one of Tosafot topics. We must keep in mind that when we learn the liability for a stone from bor or shor, it takes on the laws of shor or bor. For example, according to Shmu’aill who holds that we learn the liability for a stone from bor, one is not liable for damage to vessels, since a bor is not liable for damaging vessels.
From which av of shor are we learning that one is liable for damage done by his stone, knife or package?
It is keren that is the source from which we learn that one is liable for damaged caused by his property. We cannot use shain or regel as a source, for shain and regel are exempt in a public domain and that which is derived from them would have the same rule and also be exempt in a public domain. The Gemara is specifically speaking about a stone that damaged in a public domain, so the only source can be keren, which is liable in a public domain.
Using keren as a source is not without problems. Theoretically, for anything that is derived from keren there should be a distinction between a tam and a muad. The Gemara makes no mention of such a distinction about damage caused by one’s stone. Why not? As far as one’s stone knife or load, we cannot distinguish between a tam and a muad, for it is only logical to make such a distinction about live animals. When dealing with live animals one can say that the first three times the animal damaged were an irregularity and he only pays half. After three times the animal has shown that he regularly damages and is liable for full payment. This distinction between the first three times and afterwards cannot be made for inanimate objects.
Another problem with using shor as a source: And if you ask: How can we learn from shor, that one is liable for damages done by his inanimate objects? The comparison can be refuted with the argument: How can you use shor as a source from which to learn that one is liable for damaged caused by his stone? Shor has the characteristic that it is alive and has intent to harm, which the stone, knife and load do not have?
Tosafot answers: And Rashbam explains: That they, the stone, knife and load, derived from bor and shor by the method of a common characteristic.1When attempting to derive a new law from an already existing law, many times we refute the attempt by saying there is no comparison because the existing law has a chumro that the new law does not have. For example, in the case under discussion, when we attempt to learn one’s stone from his ox, the attempt is refuted wit the rejoinder, the shor is alive and has intent to damage, which the stone does not. We then say bor will prove that those characteristics are not what cause liability, because bor also doesn't have those characteristic and yet one is liable for damages caused by his bor. As we will see later, in this particular case there is no refuting the proof from bor that it is not necessary to be alive or have intent to harm in order to be liable. Later on we will discuss a situation where the second proof is also challenged. In any case we see that it is not the special characteristic of shor that is the reason for liability, because we see from bor that one can be liable without those characteristics. It must be the צד השוה, the common characteristic that they share that is the reason for liability. The common characteristic that the Gemara uses here is that they are your property, they are likely to damage and it is your responsibility to guard them so that they do not damage others. We thus learn that one is liable for damages caused by any type of property that has these common characteristics.
Our Mishna said that there is a common characteristic from which we learn other forms of damaging. Later the Gemara (6a) discusses what additional forms the Mishna mean. The first suggestion by Abaye is the case presently under discussion. The Gemara there argues that if they were declared ownerless, according to both Rav and Shmuel they can be derived directly from bor, and there is no need for them to be derived from the common characteristic. If they were not declared ownerless, the Gemara says that according to Shmuel they can be learned directly from bor, the common characteristic system is not needed. There seems to have been a text which reads that, according to Rav they can be derived from shor. In the context of that Gemara this would mean that they can be learned directly from shor, and there is no need for the common characteristic method. Tosafot, however, holds that this is definitely not true. He has shown us that the inanimate objects cannot be derived directly from shor but only through the common characteristic method.
And later (6a) where the Gemara discusses what can be learned from the common characteristic, where Abaye says that it comes2לאתויי-literally means: to bring or to include. to teach liability for one’s stone and knife, we do not have the text: if according to Rav who says that they are all learned from shor, they are shor, which implies that the common characteristic system is not needed. For according to Rav, Abaye’s statement that they are derived from the common characteristic works out well because it is derived from the common characteristic method as we explained.
We mentioned earlier that when one derives a new rule from an already existing rule, the new rule has the same laws as the existing one.
but there is a difficulty, since we are now saying that we are learning the inanimate objects not only from shor but also from bor, and then one should be exempt when they damage vessels as is the law by bor? Perhaps, that is in fact the rule that if the inanimate objects damage a vessel the damager is exempt? Tosafot proves that this is not so.
And later in Hamainee’ach (28a) Rav says that one is liable when they, his inanimate objects, damage vessels, where the Mishna discusses one whose jug was broken in a public domain, because he holds that they are derived from shor where there is no exemption for breaking vessels. This is a contradiction to what Tosafot has just said; that inanimate objects that are one’s property are derived from shor and bor and accordingly, there should be an exemption for breaking vessels.3See שיטה מקובצת who quotes a gilyon who offers an answer to Tosafot question. This particular common characteristic is derived from פלגא דדינא, literally a half din, which means that when the Gemara refutes the derivation from shor because shor is alive and has intent to harm, we then present the argument that we see from bor that those characteristics are not the reason for liability, since bor is liable even though it does not have those characteristics. Atthis point there is no further refutation. Elsewhere we will see that the Gemara many times argues that the second source is also not acceptable, but here there is no such argument. Therefore, the newly derived form of damaging has the rules of shor and not the rules of bor. If the Gemara had been able to argue that bor is also not an acceptable source and we would have then proved that between the two we find that this new form is also liable, then the new form would take on the rules of both.
From which av of shor are we learning that one is liable for damage done by his stone, knife or package?
It is keren that is the source from which we learn that one is liable for damaged caused by his property. We cannot use shain or regel as a source, for shain and regel are exempt in a public domain and that which is derived from them would have the same rule and also be exempt in a public domain. The Gemara is specifically speaking about a stone that damaged in a public domain, so the only source can be keren, which is liable in a public domain.
Using keren as a source is not without problems. Theoretically, for anything that is derived from keren there should be a distinction between a tam and a muad. The Gemara makes no mention of such a distinction about damage caused by one’s stone. Why not? As far as one’s stone knife or load, we cannot distinguish between a tam and a muad, for it is only logical to make such a distinction about live animals. When dealing with live animals one can say that the first three times the animal damaged were an irregularity and he only pays half. After three times the animal has shown that he regularly damages and is liable for full payment. This distinction between the first three times and afterwards cannot be made for inanimate objects.
Another problem with using shor as a source: And if you ask: How can we learn from shor, that one is liable for damages done by his inanimate objects? The comparison can be refuted with the argument: How can you use shor as a source from which to learn that one is liable for damaged caused by his stone? Shor has the characteristic that it is alive and has intent to harm, which the stone, knife and load do not have?
Tosafot answers: And Rashbam explains: That they, the stone, knife and load, derived from bor and shor by the method of a common characteristic.1When attempting to derive a new law from an already existing law, many times we refute the attempt by saying there is no comparison because the existing law has a chumro that the new law does not have. For example, in the case under discussion, when we attempt to learn one’s stone from his ox, the attempt is refuted wit the rejoinder, the shor is alive and has intent to damage, which the stone does not. We then say bor will prove that those characteristics are not what cause liability, because bor also doesn't have those characteristic and yet one is liable for damages caused by his bor. As we will see later, in this particular case there is no refuting the proof from bor that it is not necessary to be alive or have intent to harm in order to be liable. Later on we will discuss a situation where the second proof is also challenged. In any case we see that it is not the special characteristic of shor that is the reason for liability, because we see from bor that one can be liable without those characteristics. It must be the צד השוה, the common characteristic that they share that is the reason for liability. The common characteristic that the Gemara uses here is that they are your property, they are likely to damage and it is your responsibility to guard them so that they do not damage others. We thus learn that one is liable for damages caused by any type of property that has these common characteristics.
Our Mishna said that there is a common characteristic from which we learn other forms of damaging. Later the Gemara (6a) discusses what additional forms the Mishna mean. The first suggestion by Abaye is the case presently under discussion. The Gemara there argues that if they were declared ownerless, according to both Rav and Shmuel they can be derived directly from bor, and there is no need for them to be derived from the common characteristic. If they were not declared ownerless, the Gemara says that according to Shmuel they can be learned directly from bor, the common characteristic system is not needed. There seems to have been a text which reads that, according to Rav they can be derived from shor. In the context of that Gemara this would mean that they can be learned directly from shor, and there is no need for the common characteristic method. Tosafot, however, holds that this is definitely not true. He has shown us that the inanimate objects cannot be derived directly from shor but only through the common characteristic method.
And later (6a) where the Gemara discusses what can be learned from the common characteristic, where Abaye says that it comes2לאתויי-literally means: to bring or to include. to teach liability for one’s stone and knife, we do not have the text: if according to Rav who says that they are all learned from shor, they are shor, which implies that the common characteristic system is not needed. For according to Rav, Abaye’s statement that they are derived from the common characteristic works out well because it is derived from the common characteristic method as we explained.
We mentioned earlier that when one derives a new rule from an already existing rule, the new rule has the same laws as the existing one.
but there is a difficulty, since we are now saying that we are learning the inanimate objects not only from shor but also from bor, and then one should be exempt when they damage vessels as is the law by bor? Perhaps, that is in fact the rule that if the inanimate objects damage a vessel the damager is exempt? Tosafot proves that this is not so.
And later in Hamainee’ach (28a) Rav says that one is liable when they, his inanimate objects, damage vessels, where the Mishna discusses one whose jug was broken in a public domain, because he holds that they are derived from shor where there is no exemption for breaking vessels. This is a contradiction to what Tosafot has just said; that inanimate objects that are one’s property are derived from shor and bor and accordingly, there should be an exemption for breaking vessels.3See שיטה מקובצת who quotes a gilyon who offers an answer to Tosafot question. This particular common characteristic is derived from פלגא דדינא, literally a half din, which means that when the Gemara refutes the derivation from shor because shor is alive and has intent to harm, we then present the argument that we see from bor that those characteristics are not the reason for liability, since bor is liable even though it does not have those characteristics. Atthis point there is no further refutation. Elsewhere we will see that the Gemara many times argues that the second source is also not acceptable, but here there is no such argument. Therefore, the newly derived form of damaging has the rules of shor and not the rules of bor. If the Gemara had been able to argue that bor is also not an acceptable source and we would have then proved that between the two we find that this new form is also liable, then the new form would take on the rules of both.
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Tosafot on Bava Kamma
Your property. This characterization of bor as “your property” is imprecise as far as bor is concerned, because a bor is not one’s property. The bor that the Torah speaks about is in the public domain. Obviously, it is not the property of the one who dug it.
And so too, in so far as aish is concerned, the characterization of “your property” is imprecise, for it is plain that if one kindled his neighbor’s silo with another person’s fire; he is liable, even though the fire is not his property.
And so too, in so far as aish is concerned, the characterization of “your property” is imprecise, for it is plain that if one kindled his neighbor’s silo with another person’s fire; he is liable, even though the fire is not his property.
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Tosafot on Bava Kamma
A subcategory [if while] asleep. Later, on this page, the Gemara cites the opinion of Rav that Maveh mentioned in our Mishna means a person who damages. At the end of (4a) the Gemara asks: The Mishna says that one of the common characteristics of the four avos is that they are all likely to damage. Is a person likely to damage? The Gemara responds we are speaking about a sleeping person. It is clear from the Gemara that a sleeping person is an av.
When the Gemara suggests that perhaps a sleeping person is a toldoh, the Gemara could have refuted that suggestion by arguing that later (4a) the Gemara says that our Mishna is speaking about a sleeping person who is likely to damage and he is called an av.1The Gemara there is suggesting that when the Mishna speaks of a common characteristic of the four avos, the person referred to is a sleeping person. It is clearly saying that a sleeping person is one of the avos that the Mishna is discussing. However, the Gemara does not present this refutation because anyhow he refutes the suggestion correctly.
When the Gemara suggests that perhaps a sleeping person is a toldoh, the Gemara could have refuted that suggestion by arguing that later (4a) the Gemara says that our Mishna is speaking about a sleeping person who is likely to damage and he is called an av.1The Gemara there is suggesting that when the Mishna speaks of a common characteristic of the four avos, the person referred to is a sleeping person. It is clearly saying that a sleeping person is one of the avos that the Mishna is discussing. However, the Gemara does not present this refutation because anyhow he refutes the suggestion correctly.
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Tosafot on Bava Kamma
But didn't we learn [that] a person [is] always forewarned? The Gemara rejects the suggestion that a sleeping person is a toldoh, because the Mishna later says that a person is always muad even while sleeping. How does the fact that a person is always muad, prove that a sleeping person is not a toldoh? Perhaps a sleeping person is a toldoh and yet he is always liable?
The Gemara does not mean to ask that a sleeping person is also an av, as the Gemara expounds about a person who injures another person in the Gemara in Chapter Kaitzad (later 26b) from the verse “a wound in place of a wound”,1See Artscroll 26b note 2. The Gemara there says that the verse “a wound in place of a wound” is superfluous and its purpose is to teach us that one is liable for damaging another person even if his action was unintentional or the result of an unavoidable accident. for the Gemara does not cite the verse here.
Rather, the intent of the Gemara when quoting this Mishna is to show that a sleeping person is legally the same as a person who is awake and Rav Papa was not referring to a sleeping person when he said that the toldoh is sometimes not the same as the av.
The Gemara does not mean to ask that a sleeping person is also an av, as the Gemara expounds about a person who injures another person in the Gemara in Chapter Kaitzad (later 26b) from the verse “a wound in place of a wound”,1See Artscroll 26b note 2. The Gemara there says that the verse “a wound in place of a wound” is superfluous and its purpose is to teach us that one is liable for damaging another person even if his action was unintentional or the result of an unavoidable accident. for the Gemara does not cite the verse here.
Rather, the intent of the Gemara when quoting this Mishna is to show that a sleeping person is legally the same as a person who is awake and Rav Papa was not referring to a sleeping person when he said that the toldoh is sometimes not the same as the av.
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Tosafot on Bava Kamma
Saliva or moisture. Rashi says that כיחו is saliva and ניעו is moisture that runs from the nose. Tosafot proves that Rashi’s interpretation of ניעו is incorrect and offers his own explanation.
Rashi explained that ניעו is moisture of the nose. And this is difficult to Rabbeinu Tam: For in Chapter Dam HaNeedoh (needoh 55b) the Gemara teaches in a Braita “כיחו וניעו and moisture of the nose”. Obviously ניעו is not moisture of the nose.
And it appears1From the root strength that כיחו is that which emits from the throat by the strength of one’s cough, and2From the root to move ניעו is that which emits from the mouth by relatively light shaking.
Rashi explained that ניעו is moisture of the nose. And this is difficult to Rabbeinu Tam: For in Chapter Dam HaNeedoh (needoh 55b) the Gemara teaches in a Braita “כיחו וניעו and moisture of the nose”. Obviously ניעו is not moisture of the nose.
And it appears1From the root strength that כיחו is that which emits from the throat by the strength of one’s cough, and2From the root to move ניעו is that which emits from the mouth by relatively light shaking.
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Tosafot on Bava Kamma
To exempt in the public domain. Rovo is not sure whether צרורות pays from the choicest assets of the damager or not. The Gemara asks: if so, in what way is צרורות a toldoh of regel? The Gemara answers: It is a toldoh of regel as far as being exempt in a public domain. It seems that it makes sense to Rovo that צרורות should have the exemption of regel in a public domain, but he is not sure whether צרורות should have the severity of regel to pay from the choicest.
And if you ask: Why is it more apparent to Rovo that צרורות takes on the character of regel and is exempt in a public domain, while he is uncertain whether צרורות pays from the choicest assets as regel does?
Tosafot explains that it depends on how one views the reduction in payment of צרורות.
And we can answer: Since the law of regel would require that צרורות pays full damages and the halochoh to Moshe from Sinai comes to teach us that he only pays half damages, if so, we see that the halochoh to Moshe from Sinai comes to be lenient, Rovo therefore give צרורות the leniency of regel and not to be stringent, and Rovo is therefore unsure of whether to apply the stricter ruling of regel that one pays from the choicest.
And if you ask: Why is it more apparent to Rovo that צרורות takes on the character of regel and is exempt in a public domain, while he is uncertain whether צרורות pays from the choicest assets as regel does?
Tosafot explains that it depends on how one views the reduction in payment of צרורות.
And we can answer: Since the law of regel would require that צרורות pays full damages and the halochoh to Moshe from Sinai comes to teach us that he only pays half damages, if so, we see that the halochoh to Moshe from Sinai comes to be lenient, Rovo therefore give צרורות the leniency of regel and not to be stringent, and Rovo is therefore unsure of whether to apply the stricter ruling of regel that one pays from the choicest.
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Tosafot on Bava Kamma
But why is it characterized [as] a subcategory of trampling? Tosafot is concerned with the basis of the Gemara’s question. There seems to be a very simple reason why it is called regel, it is exactly regel because it is a usual occurrence, as is regel. Why does the Gemara neglect that reality?
Although it is similar to regel in that this type of damage is common, even so the Gemara questions; why is this called regel? Because the similarity is not sufficient reason to classify it as regel. Since its rules are distinct from regel, that צרורות pays only half damages, according to Rovo צרורות should be called a name of its own. The Gemara then answers that it does have at least some laws of regel that it is exempt in a public domain and therefore it can be properly called a toldoh of regel. See Otzar HaTosafot note 511.
Although it is similar to regel in that this type of damage is common, even so the Gemara questions; why is this called regel? Because the similarity is not sufficient reason to classify it as regel. Since its rules are distinct from regel, that צרורות pays only half damages, according to Rovo צרורות should be called a name of its own. The Gemara then answers that it does have at least some laws of regel that it is exempt in a public domain and therefore it can be properly called a toldoh of regel. See Otzar HaTosafot note 511.
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Tosafot on Bava Kamma
As Rav Yosef translates. There are three possible reasons why the Gemara speaks specifically of Rav Yosef as the one translating in the Targum language.
A) He was the author. There are many who believe that Rav Yosef was the author of the Targum of נביאים and כתובים. That would of course justify the Gemara referring to the Targum of Rav Yosef. Tosafot in Shabbat (115a ד"ה ובידו) disagrees with this opinion because the Gemara there refers to a Targum of Iyov in the times of the Tanoim that predates Rav Yosef.
B) Rav Yosef was blind. There is a prohibition to say the words of the written law by heart. Rav Yosef could not read the words, so he always spoke of the words of Tanach in Targum.
C) Rav Yosef was an expert in Targum.
Tosafot will choose the reason he feels is best.
The Gemara mentioned Rav Yosef because he was an expert in Targum. Expertise is required because there are many1We know of Targum by Unkelos , R’ Yonoson ben Uziel and Targum Yerushalmi. As we have seen some are of the opinion that Rav Yosef himself authored a Targum. Others feel that Tosafot is referring to the Targum of R’ Yonoson ben Uziel, but there are many versions of it and that is what Tosafot is referring to when he says there are many versions of Targum. versions of Targum. And this reason is not as has been explained elsewhere (Shabbat 115a) תוספות ד"ה לא ניתנו, that because Rav Yosef was blind. And the Gemara in (Gittin 60b) says2The Gemara there explains, what appears to be a contradiction. It is written “write for you these words”. And it is written "for according to these words”, the word for according litterally means upon the mouth. There seems to be a contradiction, in one segment of the verse the Torah discusses writing the words and in another segment the Torah discusses the words of the mouth. How does one resolve this contradiction? The written Torah you are not allowed to say them by heart. The oral law you are not allowed to say them in writing. and the written Torah you may not say by heart. And that is why he said Targum. This reason is not acceptable because of the verse “it is a time to do for Hashem”, (Tehilim 119) the Gemara says there (Gittin 60a), based on this verse that it is permitted to violate the prohibition against saying the words of the written Torah by heart.3The Gemara there is actually discussing the reverse situation. R’ Yochanan and Resh Lokish were studying a book of Agadato, which seems to be a violation against writing the oral law. The Gemara says in reference to that violation that because of “a time to do” that it is permissible. The Gemara never specifically says that one may violate the prohibition of saying words of the written law by heart that it is permissible because of “A time to do”. And you have no “time to do” that permits one to violate this prohibition greater than this, where Rav Yosef who was blind would not be able to say the words of the Torah at all, if we were to enforce the prohibition in this case.
A) He was the author. There are many who believe that Rav Yosef was the author of the Targum of נביאים and כתובים. That would of course justify the Gemara referring to the Targum of Rav Yosef. Tosafot in Shabbat (115a ד"ה ובידו) disagrees with this opinion because the Gemara there refers to a Targum of Iyov in the times of the Tanoim that predates Rav Yosef.
B) Rav Yosef was blind. There is a prohibition to say the words of the written law by heart. Rav Yosef could not read the words, so he always spoke of the words of Tanach in Targum.
C) Rav Yosef was an expert in Targum.
Tosafot will choose the reason he feels is best.
The Gemara mentioned Rav Yosef because he was an expert in Targum. Expertise is required because there are many1We know of Targum by Unkelos , R’ Yonoson ben Uziel and Targum Yerushalmi. As we have seen some are of the opinion that Rav Yosef himself authored a Targum. Others feel that Tosafot is referring to the Targum of R’ Yonoson ben Uziel, but there are many versions of it and that is what Tosafot is referring to when he says there are many versions of Targum. versions of Targum. And this reason is not as has been explained elsewhere (Shabbat 115a) תוספות ד"ה לא ניתנו, that because Rav Yosef was blind. And the Gemara in (Gittin 60b) says2The Gemara there explains, what appears to be a contradiction. It is written “write for you these words”. And it is written "for according to these words”, the word for according litterally means upon the mouth. There seems to be a contradiction, in one segment of the verse the Torah discusses writing the words and in another segment the Torah discusses the words of the mouth. How does one resolve this contradiction? The written Torah you are not allowed to say them by heart. The oral law you are not allowed to say them in writing. and the written Torah you may not say by heart. And that is why he said Targum. This reason is not acceptable because of the verse “it is a time to do for Hashem”, (Tehilim 119) the Gemara says there (Gittin 60a), based on this verse that it is permitted to violate the prohibition against saying the words of the written Torah by heart.3The Gemara there is actually discussing the reverse situation. R’ Yochanan and Resh Lokish were studying a book of Agadato, which seems to be a violation against writing the oral law. The Gemara says in reference to that violation that because of “a time to do” that it is permissible. The Gemara never specifically says that one may violate the prohibition of saying words of the written law by heart that it is permissible because of “A time to do”. And you have no “time to do” that permits one to violate this prohibition greater than this, where Rav Yosef who was blind would not be able to say the words of the Torah at all, if we were to enforce the prohibition in this case.
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Tosafot on Bava Kamma
Goring, where there is no pleasure [to the animal in doing] damage, is not similar. The Gemara is showing how one could not learn shain from keren if only keren were written in the Torah. The Gemara says that Keren is more stringent than shain because keren does not derive any benefit from its damaging, whereas shain does. On the surface this seems to be an error. The fact that keren does not derive benefit from damaging seems to be a reason that it should not be liable and if the Torah says that one is liable for keren even though it does not derive any benefit from damaging than certainly one should be liable for shain where the animal does derive benefit when it damages.
The same is true of the other refutation the Gemara mentions; if the Torah only mentioned shain where there is no intent to damage we would not be able to learn keren where there is intent to damage. This also seems to be an error. The fact that the animal intended to damage should be more reason to believe that the owner is liable. According to Rashi it seems that this is in fact the case that the initial statement of the Gemara about the relationship between keren and shain was an error, and the Gemara immediately sets about correcting this error. Tosafot is not willing to accept that the initial statement was a total error and searches for some logic in this statement.
Keren which does not derive any benefit from damaging should have been prevented and the owner was definitely negligent, for he should have guarded his ox to prevent it from damaging, for it would be relatively easy for him to guard it because it is not so provoked to damage, since it has no benefit from damaging. The fact that there is no benefit from damaging can be seen as a reason for liability because it is relatively easy to prevent it from happening.
Shain by contrast is decidedly different:
However, shain where the animal does benefit is similar to an unavoidable accident for it is difficult to guard to prevent it from damaging as much as is necessary, since the shain is provoked to eat for its benefit. It is therefore less likely to be liable for shain, because it is harder to prevent.
Tosafot will now show us that a similar line of thinking can be found for the Gemara's next statement:
And one cannot view the shain which has no intent to destroy and itsevil inclination to destroy is not so overpowering and it is relatively easy to guard her and prevent her from damaging, as one views the keren that has intent to destroy and its evil inclination to destroy is overpowering and it is difficult to guard her well so that she should not damage. Shain may be liable because it is relatively easy to prevent since there is no intent to damage. Keren may be exempt because it is too difficult to prevent.
Tosafot has shown that the initial introductory statement of the Gemara may be logical and need not be seen as an error. The Question that we must ask is; how the Gemara ultimately refutes this logic? See Maharam who says that ultimately the Gemara prefers the original approach despite the fact that an argument can be made in favor of Tosafot approach. All Tosafot wanted to accomplish is that the initial statement was not a total error.
The same is true of the other refutation the Gemara mentions; if the Torah only mentioned shain where there is no intent to damage we would not be able to learn keren where there is intent to damage. This also seems to be an error. The fact that the animal intended to damage should be more reason to believe that the owner is liable. According to Rashi it seems that this is in fact the case that the initial statement of the Gemara about the relationship between keren and shain was an error, and the Gemara immediately sets about correcting this error. Tosafot is not willing to accept that the initial statement was a total error and searches for some logic in this statement.
Keren which does not derive any benefit from damaging should have been prevented and the owner was definitely negligent, for he should have guarded his ox to prevent it from damaging, for it would be relatively easy for him to guard it because it is not so provoked to damage, since it has no benefit from damaging. The fact that there is no benefit from damaging can be seen as a reason for liability because it is relatively easy to prevent it from happening.
Shain by contrast is decidedly different:
However, shain where the animal does benefit is similar to an unavoidable accident for it is difficult to guard to prevent it from damaging as much as is necessary, since the shain is provoked to eat for its benefit. It is therefore less likely to be liable for shain, because it is harder to prevent.
Tosafot will now show us that a similar line of thinking can be found for the Gemara's next statement:
And one cannot view the shain which has no intent to destroy and itsevil inclination to destroy is not so overpowering and it is relatively easy to guard her and prevent her from damaging, as one views the keren that has intent to destroy and its evil inclination to destroy is overpowering and it is difficult to guard her well so that she should not damage. Shain may be liable because it is relatively easy to prevent since there is no intent to damage. Keren may be exempt because it is too difficult to prevent.
Tosafot has shown that the initial introductory statement of the Gemara may be logical and need not be seen as an error. The Question that we must ask is; how the Gemara ultimately refutes this logic? See Maharam who says that ultimately the Gemara prefers the original approach despite the fact that an argument can be made in favor of Tosafot approach. All Tosafot wanted to accomplish is that the initial statement was not a total error.
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