פירוש על בבא קמא 12:17
Tosafot on Bava Kamma
Like [the case where] the best-quality [land] of the injured [party] is equal to the inferior-quality [land] of the one who is liable for damages. After a serious exchange of ideas, the Gemara concludes that the dispute between R’ Akiva and R’ Yishmo’ail is about a situation where the victim’s highest quality field is equivalent to the damager’s lowest quality. Rabbi Yishmo’ail says that the requirement of the Torah that the victim be paid with the choicest is fulfilled by the victim receiving a field equal to his own finest as payment for the damages. Rabbi Akiva holds that the requirement that the victim be paid with the choicest is fulfilled only when the victim receives the finest field of the damager as payment. Of course, according to both the amount paid is the amount of the damages.
The dispute is about the quality of the field used to make that payment. What about a situation where the damager does not have a field that is as good as the victim’s finest? Does the damager have to purchase a field that is equivalent to the victim’s finest to fulfill the obligation of the choicest according to R’ Yishmo’ail who holds that payment is made with the victim’s choicest?
The Gemara could not have said that the dispute is in a reverse situation, where the victim had finer fields than the damager, for all agree that the damager only pays with the finest that he has and he does not have to purchase finer fields than he owns with which to pay the victim. As the Gemara says later (Bava Kamma 7b), when one only has poor fields, and he owes for damages, debts and a marriage contract, all, the victim of damages, the creditor and his wife who is collecting her marriage contract collect from the poorest quality fields. It is evident that the damager need not purchase finer fields to satisfy his obligation to the victim
On 7b there is an opinion that the choicest meant by the posuk is assessed by world standards. It is possible that both the damager and his victim have fields that are equivalent to the world’s choicest and even better fields.
However, if they, the courts, assess finest and poorest by world standards,1See 7b, towards the bottom of the page, where the Gemara introduces a dispute about whether the standard of finest and poorest is determined by world standards or by the qualities of the particular individual. See Tosafot there,ד"ה אליבא who explains that this question is relevant only according to R’ Akiva. However, according to R’ Yishmo’ail there is no question that we measure finest and poorest according to the property of the victim. the Gemara could have spoken about a reverse situation. For example, the poorest of the damager is equal to the worlds finest and the victim also has property that is as good as the damager’s finest. According to R’ Akiva the damager pays with his poorest that is equivalent to the worlds finest and according to R’ Yishmo’ail the damager pays with the finest of the victim, which is also his own finest.
Rav Huno says later in the Gemara (Bava Kamma 9a) that a damager may pay with cash or the finest. According to this view cash and the finest are interchangeable and one satisfies the obligation to pay the finest by paying with cash.
And even according to the one who says that they, the courts, assess finest and poorest according to the damager’s property, the Gemara could have also spoken of a reverse situation. For example, the damager does not have property as fine as the finest of the victim. According to the one, Rav Huno, who says the damager can satisfy his obligation with cash or the finest, he would pay cash according to R’ Yishmo’ail, because the damager’s finest does not satisfy the requirement of finest in this instance, and according to R’ Akiva he pays only with his own finest, which is poorer than the victim’s finest.2 According to R’ Akiva the damager fulfills his obligation to pay with the ‘finest’ since he is using his finest field. According to R’ Yishmo’ail he cannot fulfill the obligation with a field that is of lesser quality than the victim’s finest field. If he does have cash, he must use cash to pay for the damages in order to fulfill the obligation to par with the finest.
The dispute is about the quality of the field used to make that payment. What about a situation where the damager does not have a field that is as good as the victim’s finest? Does the damager have to purchase a field that is equivalent to the victim’s finest to fulfill the obligation of the choicest according to R’ Yishmo’ail who holds that payment is made with the victim’s choicest?
The Gemara could not have said that the dispute is in a reverse situation, where the victim had finer fields than the damager, for all agree that the damager only pays with the finest that he has and he does not have to purchase finer fields than he owns with which to pay the victim. As the Gemara says later (Bava Kamma 7b), when one only has poor fields, and he owes for damages, debts and a marriage contract, all, the victim of damages, the creditor and his wife who is collecting her marriage contract collect from the poorest quality fields. It is evident that the damager need not purchase finer fields to satisfy his obligation to the victim
On 7b there is an opinion that the choicest meant by the posuk is assessed by world standards. It is possible that both the damager and his victim have fields that are equivalent to the world’s choicest and even better fields.
However, if they, the courts, assess finest and poorest by world standards,1See 7b, towards the bottom of the page, where the Gemara introduces a dispute about whether the standard of finest and poorest is determined by world standards or by the qualities of the particular individual. See Tosafot there,ד"ה אליבא who explains that this question is relevant only according to R’ Akiva. However, according to R’ Yishmo’ail there is no question that we measure finest and poorest according to the property of the victim. the Gemara could have spoken about a reverse situation. For example, the poorest of the damager is equal to the worlds finest and the victim also has property that is as good as the damager’s finest. According to R’ Akiva the damager pays with his poorest that is equivalent to the worlds finest and according to R’ Yishmo’ail the damager pays with the finest of the victim, which is also his own finest.
Rav Huno says later in the Gemara (Bava Kamma 9a) that a damager may pay with cash or the finest. According to this view cash and the finest are interchangeable and one satisfies the obligation to pay the finest by paying with cash.
And even according to the one who says that they, the courts, assess finest and poorest according to the damager’s property, the Gemara could have also spoken of a reverse situation. For example, the damager does not have property as fine as the finest of the victim. According to the one, Rav Huno, who says the damager can satisfy his obligation with cash or the finest, he would pay cash according to R’ Yishmo’ail, because the damager’s finest does not satisfy the requirement of finest in this instance, and according to R’ Akiva he pays only with his own finest, which is poorer than the victim’s finest.2 According to R’ Akiva the damager fulfills his obligation to pay with the ‘finest’ since he is using his finest field. According to R’ Yishmo’ail he cannot fulfill the obligation with a field that is of lesser quality than the victim’s finest field. If he does have cash, he must use cash to pay for the damages in order to fulfill the obligation to par with the finest.
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