פירוש על בבא קמא 10:6

Testing

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.

[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.

...Their [unique] halakhot. It appears from the Gemara that the only purpose for the Torah writing each and every one of the avos is because of the unique laws that they each have. According to Tosafot analysis the Gemara did not have to say that we would be lacking the unique laws of each of the avos. There is one general law that applies to all of the avos that would be lacking if bor was one of the source of the damagers, the liability for vessels.
The Gemara could have said that each and every av had to be written explicitly, for if they were not written, rather, we would derive them from one of the others and bor, we would exempt vessels from liability by all of the avos. Since they would all be derived from bor which is exempt for damaging vessels all the other avos would also be exempt for damaging vessels. The Gemara did not have to say that writing all the avos is necessary only because of the distinctive laws of each one.
Perhaps this problem about the exemption of vessels could be resolved by adding aish which is not exempt for the destruction of vessels and all of the other avos could be derived from aish and one of the others? That is why the Gemara says that all the avos needed to be written only because of their unique laws.
And if we would learn all of the other avos from any one of these avos and aish, we would have to exempt hidden objects from liability by all of the avos. Adding aish would not result in a situation where the avos needed to be written only for their unique laws. There would still be a general rule that would be lacking even after the addition of aish; liability for hidden objects.
The Gemara has explained why the Torah had to write all of the avos, but why is the Mishna written as it is which leads us to believe that all the avos needed to be written because otherwise we could not learn them from each other?
And our Mishna taught us in the format of that leads us to believe that each and every av had to be written, otherwise we would not know of it, only to make the Torah great and beautify it. As we study the Mishna in this format we become aware of the weaknesses and strengths of each of the avos which give us a greater understanding of the avos. This greater understanding beautifies the Torah. Eventually as we study we become aware that some of the avos could have been derived from bor and one of the others, so we are ultimately not misled.

Pit to exempt for [damage to] vessels. The Gemara said that bor had to be written. It could not be derived from any of the others, since it is the only one that does not travel. Why did the Gemara say that bor was written for its unique law, the exemption of vessels? Bor had to be written because it could not be derived from the others.
As the Gemara is in the mode of listing the special laws of the other avos it also mentions the unique law of bor. At this point in the Gemara it was not necessary to mention the special law of bor because bor cannot be derived from the other avos and definitely needed to be written in the Torah.

Fire to exempt a concealed [object]. The Gemara seems to be saying that the only reason aish had to be written in the Torah is for its unique law that when aish destroys hidden objects it is exempt. Tosafot point out that this is not the only reason aish needed to be written.
The Gemara could have said that aish was written so that it should be liable for destroying vessels, because aish cannot be derived from any of the live damagers. It can only be derived from any one of the others and bor which is exempt for the destruction of vessels, aish would then also be exempt for damaging vessels. The explanation of the Gemara that aish was written to teach us the exemption of hidden objects is only one of the reasons that aish had to be written.
It is apparent from this Tosafot that if aish were not explicitly written in the Torah, it could be derived from bor and aish would also be exempt for destroying vessels. According to this Tosafot the problem seems to exist only for aish, but not for the other avos. This contradicts what Tosafot says in ד"ה להלכותיהן where it seems that this problem would be true of any av derived from bor and one of the others. Tosafot said there that all of the avos would have a general exemption for damaging vessels because they would all be derived from bor while here Tosafot is saying that only aish would have the exemption for vessels not the other avos. Based on this contradiction, Maharshal deletes most of the text of that Tosafot.
Maharsho defends the text:
This Tosafot is saying that if we would attempt to learn any of the avos from each other, ultimately aish would be exempt for vessels. For example we could learn that regel is liable from keren and shain. Either sources are liable for vessels, thus the derivative, regel, would also be liable for vessels. However, aish could not be derived from any of the live damagers, because we have seen in the Mishna that a spirit of life is a stringent characteristic that aish does not have. It can only be derived from bor which is also not alive, but if it is derived from bor it would have the exemption for vessels. That is why our Tosafot says that the problem of the exemption for vessels is true of aish as opposed to the other avos, because aish can only be derived from bor. The other avos might each be derived from two of the other avos, where there is no exemption for vessels in either of the sources.
But why does the previous Tosafot indicate that the exemption for vessels would apply to all of the avos? Maharsho explains that the previous Tosafot is discussing the particular phrase of the Gemara that says all the avos could be learned from bor and one of the others. Tosafot correctly says that if bor was one of the sources, all the other avos would be exempt for vessels.
The Tosafot ד"ה אש is considering learning any one of the avos from any two of the others, this can be done without using bor as a source. Thus all the others would not have the exemption for vessels. Aish which can be derived only from bor would have the exemption for vessels.