פירוש על בבא קמא 10:2
Rashi on Bava Kamma
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Tosafot on Bava Kamma
In place of giving, etc. Rashi ד"ה תחת נתינה in a lengthy exposition of all the words and avos shows how we can derive that each av pays from the choicest. The derivation of בושת -embarrassment is a bit vague. Rashi says it may be included in the תחת mentioned in the Torah in the verses dealing with a rapist or in the verses dealing with one who wounds another. Tosafot brings to our attention that there is another source that he feels is more reasonable.
In Sifray we learn that embarrassment is paid from the choicest from the verse in D’vorim 25, 12, “you shall cut off her hand1 Our Rabbis teach that this verse is not to be taken literally. It means that she must pay for the embarrassment she inflicted on her husband’s opponent. and you shall not show pity”. In that verse we see that one is liable for embarrassing another person and he learns from the zom’mim witnesses where it is also written in D’vorim 19, 21, “and you shall not show pity” that just as the zom’mim witnesses pay from the choicest, so too, embarrassment is paid from the choicest.
And it should not be said that this is a regular “common word” method of learning, because the Gemara here does not say that we learn that avos pay from the choicest from תחת, נתינה and עיניך.
Since our Gemara does not include the word עיניך among the four words of the “common word” method, it seems that our Gemara does not hold that this derivation is a proper “common word”.2Tosafot’ understanding of this situation is a bit puzzling. Tosafot obviously disagrees with Rashi who offered another exposition to learn that embarrassment is paid from the choicest. That is why he presents the Sifray’s method of learning this law and infers that our Gemara concurs with Sifray. He also says that this is not a proper “common word”. If so, what is it? Some suggest that the common word system is limited to one word in a sentence. Since the verse dealing with embarrassment and the verse dealing with zom’mim witnesses are exactly the same “and you shall not show pity”, this goes beyond the “common word” system and may be used to derive laws from one to the other even when the rules governing a “common word” derivation would not be satisfied. Rashi understands that our Gemara does not subscribe to the Sifray precisely for the reason that Tosafot suggests. Since our Gemara does not list עיניךas one of the words of the "common word" method,it does not subscribe to that derivation and he therefore offers other sources.
And as far as the zom’mim witnesses themselves, Rashi says that we learn that they pay from the choicest because it is written about them נפש בנפש “a life for a life”, even though the word תחת does not appear in that verse, the meaning of the verse is understood as if תחת was written in the verse and that is sufficient for the “common word” method.
Zom’mim witnesses present an interesting dilemma. They usually pay exactly as they planned to cause their victim to pay. If so, why do we need to learn that they pay the choicest, let us see what the victim would have paid?
And we must say that even when they testify falsely about a tam ox that damaged that does not pay from the choicest, or they testified that p’lonee owes p’lonee3This is the Gemara’s way of saying, somebody owed somebody. a moneh, one hundred zuz, whose law is to pay from the poorest,4By biblical law a creditor is paid from the poorest. By Rabbinic decree he is paid from the medium quality. Some correct our Tosafot to reflect the rabbinic ruling. the zom’mim witnesses pay from the choicest, even though this not what they planned to do to their victim.
Tosafot is basing his conclusion on an obvious question. Why is it necessary to have a verse teach us that zom’mim witnesses pay the choicest? For if they sought to make their victims pay from the choicest, we would not need a verse to teach us that they pay from the choicest, because we would learn from כאשר זמם that we do to them as they planned, that they are liable to pay from the choicest. Just as they planned that their victim would pay from the choicest, so too, they must pay from the choicest. The additional verse is necessary to teach us that even when they did not plan that their victim should pay from the choicest; the zom’mim witnesses still pay from the choicest.
In Sifray we learn that embarrassment is paid from the choicest from the verse in D’vorim 25, 12, “you shall cut off her hand1 Our Rabbis teach that this verse is not to be taken literally. It means that she must pay for the embarrassment she inflicted on her husband’s opponent. and you shall not show pity”. In that verse we see that one is liable for embarrassing another person and he learns from the zom’mim witnesses where it is also written in D’vorim 19, 21, “and you shall not show pity” that just as the zom’mim witnesses pay from the choicest, so too, embarrassment is paid from the choicest.
And it should not be said that this is a regular “common word” method of learning, because the Gemara here does not say that we learn that avos pay from the choicest from תחת, נתינה and עיניך.
Since our Gemara does not include the word עיניך among the four words of the “common word” method, it seems that our Gemara does not hold that this derivation is a proper “common word”.2Tosafot’ understanding of this situation is a bit puzzling. Tosafot obviously disagrees with Rashi who offered another exposition to learn that embarrassment is paid from the choicest. That is why he presents the Sifray’s method of learning this law and infers that our Gemara concurs with Sifray. He also says that this is not a proper “common word”. If so, what is it? Some suggest that the common word system is limited to one word in a sentence. Since the verse dealing with embarrassment and the verse dealing with zom’mim witnesses are exactly the same “and you shall not show pity”, this goes beyond the “common word” system and may be used to derive laws from one to the other even when the rules governing a “common word” derivation would not be satisfied. Rashi understands that our Gemara does not subscribe to the Sifray precisely for the reason that Tosafot suggests. Since our Gemara does not list עיניךas one of the words of the "common word" method,it does not subscribe to that derivation and he therefore offers other sources.
And as far as the zom’mim witnesses themselves, Rashi says that we learn that they pay from the choicest because it is written about them נפש בנפש “a life for a life”, even though the word תחת does not appear in that verse, the meaning of the verse is understood as if תחת was written in the verse and that is sufficient for the “common word” method.
Zom’mim witnesses present an interesting dilemma. They usually pay exactly as they planned to cause their victim to pay. If so, why do we need to learn that they pay the choicest, let us see what the victim would have paid?
And we must say that even when they testify falsely about a tam ox that damaged that does not pay from the choicest, or they testified that p’lonee owes p’lonee3This is the Gemara’s way of saying, somebody owed somebody. a moneh, one hundred zuz, whose law is to pay from the poorest,4By biblical law a creditor is paid from the poorest. By Rabbinic decree he is paid from the medium quality. Some correct our Tosafot to reflect the rabbinic ruling. the zom’mim witnesses pay from the choicest, even though this not what they planned to do to their victim.
Tosafot is basing his conclusion on an obvious question. Why is it necessary to have a verse teach us that zom’mim witnesses pay the choicest? For if they sought to make their victims pay from the choicest, we would not need a verse to teach us that they pay from the choicest, because we would learn from כאשר זמם that we do to them as they planned, that they are liable to pay from the choicest. Just as they planned that their victim would pay from the choicest, so too, they must pay from the choicest. The additional verse is necessary to teach us that even when they did not plan that their victim should pay from the choicest; the zom’mim witnesses still pay from the choicest.
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Tosafot on Bava Kamma
[They] are forewarned. The Gemara says that keren cannot be derived from all other avos because all other avos are initially muadim. The term initially muadim indicates that they pay in full even the first time they damage while keren is first a tam and pays half the first three times it damages. Tosafot will show that we cannot accept this simple understanding of the Gemara.
Later on Bava Kamma 15a there is a dispute among the amoraim about the half payment of a tam. Rav Papa says that it is a monetary requirement. This means that an ordinary ox is assumed to be a potential damager even as far as goring by keren is concerned. His owner should be aware that he needs to be guarded to prevent him from goring others. Therefore, when one fails to guard his ox he is liable for failing to fulfill his obligation to prevent his ox from damaging. Since this reality is not immediately apparent to the ox owner, the Torah was lenient with him and requires only half payment until it is actually established that his ox is a muad.
Rav Huno son of R’ Yehoshua says that an ordinary ox is not a potential damager and need not be guarded. The half payment is a fine that the Torah placed upon the owner in order to encourage extra preventative measures.
One should not explain that the term initially a muad refers to the rule that they pay in full as opposed to keren which pays half, for if that were so we would learn from the other avos that keren also pays full. Since it would not be written that keren pays half,1 The Gemara at this point is working under the premise that keren would not be written in the Torah and we would learn keren from bor and one of the other avos. we would learn keren from all other avos and we would assume that it pays in full as do all other avos.
Rather, Rabbeinu Tam explains that the term initially a muad refers to the fact that it is usual for them to damage, which is not true of keren, because ordinary oxen are assumed to be guarded according to the one who holds that half payment is a fine. Keren is not as likely to damage as are the other avos and it could therefore not be learnt from the other avos.
In our Gemara the opposing opinion is presented as the one who holds that keren is more likely to be liable. According to him keren can be derived from the other avos by a kal v’chomer since he damages intentionally. Rashi says that that it is not clear who the author of this opinion is. Tosafot will inform us who he believes is the author of this opinion.
And the one who says: to the contrary, keren is more likely to be liable because of his intent to damage, that is in accordance with the one who says half payment is a monetary payment, because it is common for oxen to damage and they are not assumed to be guarded. And not as Rashi says that the author of this opinion has not been clarified.
Note:
You will notice in the text of your Gemara that there are parentheses around most of the text of the Tosafot. There is a great controversy about whether this is actually a part of Tosafot. The objection to the text of this Tosafot is based primarily on Tosafot ד"ה אש, so we will wait till after we learn that Tosafot and then discuss the various opinions.
Later on Bava Kamma 15a there is a dispute among the amoraim about the half payment of a tam. Rav Papa says that it is a monetary requirement. This means that an ordinary ox is assumed to be a potential damager even as far as goring by keren is concerned. His owner should be aware that he needs to be guarded to prevent him from goring others. Therefore, when one fails to guard his ox he is liable for failing to fulfill his obligation to prevent his ox from damaging. Since this reality is not immediately apparent to the ox owner, the Torah was lenient with him and requires only half payment until it is actually established that his ox is a muad.
Rav Huno son of R’ Yehoshua says that an ordinary ox is not a potential damager and need not be guarded. The half payment is a fine that the Torah placed upon the owner in order to encourage extra preventative measures.
One should not explain that the term initially a muad refers to the rule that they pay in full as opposed to keren which pays half, for if that were so we would learn from the other avos that keren also pays full. Since it would not be written that keren pays half,1 The Gemara at this point is working under the premise that keren would not be written in the Torah and we would learn keren from bor and one of the other avos. we would learn keren from all other avos and we would assume that it pays in full as do all other avos.
Rather, Rabbeinu Tam explains that the term initially a muad refers to the fact that it is usual for them to damage, which is not true of keren, because ordinary oxen are assumed to be guarded according to the one who holds that half payment is a fine. Keren is not as likely to damage as are the other avos and it could therefore not be learnt from the other avos.
In our Gemara the opposing opinion is presented as the one who holds that keren is more likely to be liable. According to him keren can be derived from the other avos by a kal v’chomer since he damages intentionally. Rashi says that that it is not clear who the author of this opinion is. Tosafot will inform us who he believes is the author of this opinion.
And the one who says: to the contrary, keren is more likely to be liable because of his intent to damage, that is in accordance with the one who says half payment is a monetary payment, because it is common for oxen to damage and they are not assumed to be guarded. And not as Rashi says that the author of this opinion has not been clarified.
Note:
You will notice in the text of your Gemara that there are parentheses around most of the text of the Tosafot. There is a great controversy about whether this is actually a part of Tosafot. The objection to the text of this Tosafot is based primarily on Tosafot ד"ה אש, so we will wait till after we learn that Tosafot and then discuss the various opinions.
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