פירוש על בבא קמא 20:14

Such as Popo Bar Abo. The Braita is teaching us that if five people were sitting on a bench and a sixth person sat down together with them and broke the bench, he is liable. Rav Popo tells us that the Braita is speaking of a very obese person such as Popo Bar Abo. Why was it necessary for Rav Popo to mention that the sixth person was obese? What if he was not obese?
Rashbam explains: that the Gemara mentioned Popo Bar Abo who was extremely obese, because for ordinary people who are not obese, even without asking permission, the bench that they sat on is as if it is loaned, to all who come even by themselves to sit on it. For an ordinary bench, is made for that purpose, to be used by any passerby who needs it and any person may sit on the chair. Since the bench is as if it is loaned to anybody who wants to use it, if it breaks it is considered as a loaned object that died because of the work that was done with it and the borrower is exempt.¹The Gemara says in Bovo M”tzeeo 96a: even if the animal died because of the work that was done with it, the borrower is exempt, because he can say to the lender, I did not borrow the animal to place it under a canopy. However for someone like, Popo bar Abo who is very unusual and heavier than other people, normally it is not loaned to him and when he sits on a bench and breaks it he is liable because he had no permission to sit on the bench.
And according to Rashbam’s explanation we must say that the when the Gemara says “like Popo bar Abo” this description refers to all of the people sitting on the bench, not only the sixth one. This can be seen from what the Gemara soon says when analyzing the Braita. The Gemara says that the bench would have lasted two hours under the weight of the first five. When the sixth person sat down it broke sooner. They can say to him, the sixth one, and if not for you we would have sat another moment and would have arisen and nothing would have happened. This implies that if the bench had broken under the weight of the first five they would be liable. If they are normal people, why should they be liable according to Rashbam who says that a bench is loaned to normal people and when it breaks it is as if it died because of the work and they should be exempt? Of necessity we must be speaking where the first five are also obese and they may not use the bench at all. If they use it and it breaks they are liable.
This understanding of the Gemara, that all of the participants in the story were obese, is only true as long as the Gemara was searching for the circumstances for which the ruling of the Braita is correct. At that point in the exchange it was necessary to say that they were all obese, but at the Gemara’s conclusion, Tosafot points out that the Braita makes perfect sense even if the first five were regular people.
However, at the conclusion, when the Gemara answers that the bench broke as he was leaning on them, and only he is liable because he did not allow the others to stand up, we need not say that the description “like Popo bar Abo” refers to the others rather it refers²This translation reflects a variation of the text in Tosafot that reads דקאי instead of דחייב. only to the last person.
And because of this analysis of our Gemara, that an ordinary bench is loaned to the public and if it breaks while being used, the user is exempt because it is considered that it died as a result of the work for which it was used, Rashbam exempted four people who sat on a bench of a widow and broke it.
And Rav Ezriel compelled them to pay. Rav Ezriel seems to hold understand our Gemara as Rabbeinu Tam explains it.
We must keep in mind that Rashbam’s ruling is based primarily on the Rav Popo’s statement that the person who broke the bench was like Popo bar Abo who was extremely obese. This is what caused him to say that an ordinary person would not be liable.
And Rabbeinu Tam explains that the reason the Gemara specifically mentioned Popo bar Abo, is not because only heavy people are liable for breaking a bench as Rashbam says, but rather because following the Gemara’s analysis of the Braita it says in conclusion that the reason for Popo bar Abo’s liability is because the damage that he does with his power while leaning on the group sitting on the bench is the equivalent to damage that he does with his body. And this is true only of Popo bar Abo who was a heavy person and because of his weight; he prevented the others from standing. However, all other people who are not so heavy and their leaning on those who were sitting would not prevent the sitters from rising, when the sitters do not stand up they are also negligent for not rising and they are all liable. Popo bar Abo is used as an example not because only extremely obese people are liable when breaking a bench. Anyone who breaks a bench is liable. However, it is usually only people such as Popo bar Abo who could prevent the others from standing up. According to Rabbeinu Tam’s explanation even when four ordinary people sit on a bench and break it they are liable. This is also the opinion of Rav Ezriel who compelled the four people to pay when they broke the widow’s bench.³Rav Ezriel may agree that they are allowed to sit on the bench because usually a person does not mind that passersby sit on his bench. However Rav Ezriel and Rabbeinu Tam hold that when using the bench without permission they do not legally become borrowers and the use of the bench is not governed by the rules of a borrower. Subsequently, the exemption of dying as a result of the work performed with the animal does not apply here. Although they had the right to use the bench the general rules of destroying one’s neighbor’s property are in effect. This applies to an unavoidable circumstance as well. It is only when they ask to use the bench that the rules of a borrower are in effect and there is an exemption for “dying as a result of the work”.
When Rav Popo asked: are there no other cases where a person does only partial damage and is liable as is he did the entire damage? He suggested that the Braita dealing with five people sitting on a bench, would satisfy the conditions of the Mishna. When he tells us that the Braita is speaking about a person such as Popo bar Abo who is capable of doing the damage by himself since he can hold the sitters in place, he is in effect telling us that this Braita is not a case of doing partial damage, because Popo bar Abo is doing the entire damage by adding his weight and holding the others in place. How then, does this Braita satisfy the conditions of the Mishna “I am responsible for part of the damage”, Popo bar Abo is responsible for all of the damage?
And according to this explanation, that Popo bar Abo was used as an example because that fits the conclusion of the Gemara, we must say that Rav Popo himself came to answer the question he asked: are there no other cases that satisfy the Mishna’s condition, “I am responsible for part of the damage”? The ensuing analysis of the Braita by the Gemara is because the Gemara did not immediately realize that Rav Popo himself had supplied the reason why that Braita cannot be used as an explanation of our Mishna.

What did he do? The text of the Braita reads, “I am responsible for a portion of the damage and I am liable for the entire damage”. The Braita itself gives one example of when this is true. The Gemara suggests three other possibilities that might work in the text of the Braita. Ultimately the Gemara rejects all of them. As the Gemara analyzes each possibility the Gemara says: if without him the damage would have occurred anyway, what did he do? This question can be understood in one of two ways:
1) Therefore he should not be liable at all.
2) Therefore he should not be more liable than the others and he should only pay his share, but he must pay at least his share.
Rashi in ד'ה מאי קעביד says that he should not be liable at all. Since Rashi does not offer any other explanation of these words we can assume that he means that in all three cases the explanation is the same.
Tosafot disagrees with Rashi as we shall now see. We will assume that the words מאי קעביד that Tosafot is quoting are the very first that appear in the Gemara that are talking about the ox owner who asked five people to guard his ox.
Throughout the Gemara we must say: that what did he do more means, more than the others and each one should pay his share.
And we should not say that the Gemara’s intention is and he should be entirely exempt as Rashi says. For we have learned in a Braita in perek Haporoh (later 51a) one who carves out a bor of ten tefachim and someone else came and deepened it to twenty tefachim and another one came and deepened it to thirty tefachim, all are liable even though without him, the second or third one the animal would have died.
However, this is a matter that requires some deliberation, for if a man throws a small piece of wood into a great fire, should he be liable? This is basically similar to one who digs a bor of ten tefachim and somebody else came and deepened it to eleven tefachim, who would definitely not be liable.¹See Tosafot later 51a ד'ה בור י' ובא אחר והשלימו לעשרים and R’ Akeevo Eiger there.

They are all exempt. The Braita said that if ten people struck a victim and he died, they are all exempt. Rashi says that it is because we do not know which of the strikers delivered the death blow.
And we are speaking of when the first one to strike the victim hit him with enough force to kill him. For if the there was not enough force to kill him, the Rabanan would also agree that the last one is liable as is evident in the end of Hanisrofin (Sanhedrin 78b)

On its damage; it did not teach - This would be understood that payment goes for a complete live bull, and he would take the carcass.

Rather, payment for its damage - From this it is understood 'complete'; that the harmed takes the carcass and the other completes for him what value the death reduced.

He shall complete it. The Gemara says that the word ישלימנה means that he must fill in the difference between its original and present value. One might think that this could be applied to any time the root ישלם is used. ישלם can mean to make something שלם complete, fill in what is missing. Tosafot tells us that this is not so. The verse is teaching us that the difference is to be filled in by the damager, only in the specific instance of the word ישלימנה.
When the Torah writes בעל הבור ישלם we do not explain that the word ישלם means to fill in. We assume that the Torah means the simple translation, which is that one must pay for the animal his ox killed. Why is the word ישלמנה different? But the word ישלמנה implies that you pay your obligation to the victim with the animal itself. The literal translation is, pay the animal to its owner and this is impossible because the animal is already dead. Therefore, since it is impossible to carry out the literal translation of the word, we explain that the Torah meant ישלימנה he fills in the difference between the animal’s original value while it was still alive and its present value after its death. (See Artscroll note 25)

He shall not pay. There are times when the Torah expresses itself in a very unusual manner.
In such cases the Torah is telling our Rabbis to make whatever they can out of the words of the Torah. The verse under discussion is one of these verses. See Rashi in Chumash for the simplest translation. There Rashi says that the verse is discussing a paid guard who is exempt when something beyond his control happens to the object entrusted to his care. The Torah does however stipulate יביאהו עד, Rashi explains that he must verify through witnesses that it was torn apart by a wild animal and then הטרפה לא ישלם; he need not pay for the torn apart animal. The use of the phrase יביאהו עד, (lit. he shall bring him as a witness) to tell us that the paid guard must bring witnesses to prove his claim is quite awkward. Our Gemara is teaching us that there is another message here. The word עד as it is spelled in the chumash means witness, thus we have Rashi’s explanation that the Torah is telling us that the paid guard must bring a witness to verify his claim. The same word when the vowel is a patach עד can mean- until. We may isolate the last four words of the verse and read them as עד הטרפה לא ישלם the amount until the torn animal he shall not pay. This is the amount that he would have to pay if he did not have a witness. This means that if he would be liable the amount of his liability would be- until the torn animal, but the equivalent of the torn animal is never his liability.
Even though this verse is written about a paid guard who is exempt from accidents that are beyond his control and that is what this verse is teaching us, that when he verifies through witnesses that the animal was torn apart by a lion or a wolf from whom he could not rescue them he is not liable, even so, since the Torah writes the words in a manner that they can be read עד הטרפה לא ישלם, until the torn-apart animal he shall not pay, we may learn that when he is liable to pay, he does not pay anything for the torn apart animal his maximum liability is- until the torn apart animal, but not for the torn apart animal itself.

And that [one] because [the damage occurred] by itself. The Gemara is showing us that we need all three verses to teach us that the carcass belongs to the victim and that the damager need only pay the difference between the value of the victim animal when it was killed and when it was alive. The Gemara said that one could not learn from the verse about a person damaging an ox because that is unusual and one cannot learn from the verse about a paid guard because the damage that he does is by being passive, not guarding the ox sufficiently. Then the Gemara said that even if we had both these verses we could still not learn that an ox that gored need not pay for the carcass, because that cannot be learned from the verse about a person damaging an ox since that is unusual while an ox goring is not unusual and it could not be learned from the verse about the paid guard because the paid guard is passive, whereas the ox that gores is actively damaging. Tosafot points out that there is a way that we could have learned from the combination of a person who damages an animal and a paid guard who does not guard the ox entrusted to him properly.
See Tosafot 2a ד'ה לא הרי השור for an in-depth explanation of how laws are derived from a combination general principle.
When the Gemara says here that we could not learn that an ox that gores does not pay for the carcass, from a person who damages an ox or from a paid guard, the Gemara means that we cannot derive the ox that gores from any single one of them. We cannot learn that an ox that gores need not pay for the carcass, from a person who damages an animal because a person damaging an animal is unusual and perhaps the Torah was lenient for that reason, but an ox that gores is not unusual and he may have to pay for the entire animal that he killed. It cannot be derived from a paid guard because a paid guard damages by being passive, not guarding the ox sufficiently and perhaps that is why the Torah did not require that he pay for the carcass, but an ox that gores that damages actively is perhaps required to pay for the carcass as well. However, from both of them together, as a combination general principle, we can learn from the common characteristic. When refuting that you cannot learn from a person who damages an animal because that is unusual one can counter that we see that a paid guard need also not pay for the carcass although this type of damaging is not unusual. When refuting that a paid guard cannot be the source because he is passive we can counter that a person who damages an animal is active and even so he does not have to pay for the carcass. Ultimately the leniency of not having to pay for the carcass is not dependent on being unusual or passive. We may deduce that even an ox that gores need not pay for the carcass. However, the Gemara did not trouble itself to be lengthy and methodical about this.¹Tosafot seems to leave us with a very strong question, if in fact the ox that gored could be learned from a combination general principle, why do we need the third verse. See אוצר מפרשי התלמוד for a lengthy discussion of this issue. Perhaps the simplest approach is that we do not really need the third verse about an ox that gores to teach us that that ox need only pay the difference between when his victim eas alive and after he was killed, but we do need it to teach us that when one damages by shain, regel and bor that they also do not pay for the carcass. Each of these avos have their particular chumro, shain benefits from damaging, regel damages on a regular basis and bor is initially a damager. These could not have been derived from a person who damages an animal and a paid guard and that is why the third verse is necessary. When Tosafot says that the Gemara did not trouble itself to be lengthy and methodical about this, Tosafot means that the Gemara could have gone through this give and take and arrive at this conclusion.

It is only necessary for [the] diminishing [value] of the carcass. When an animal is killed the longer it takes to sell it the more value it loses. This loss is the victim’s. As we have seen the carcass belongs to him and he owns it at the price it is worth at the time it dies. Any further loss in value because of delaying the sale of the carcass is the victim’s loss. There is a Gemara later on 34a that seems to contradict what we have just learned.
Even though in Hamaineeach (later 34a) the Gemara says that if an animal became weaker due to a goring, we estimate the value of the animal as it is when they stand before the court. We value the victim animal as it is worth when it comes before the court, even though it lost value since the goring. This contradicts our Gemara that says that the carcass is the victim’s as of the time of death and not as of time of standing before the court. That is because there the horn of the attacker ox is buried in the victim; he is getting progressively worse because of the initial goring.
There we do not require the victim owner to sell the victim ox because it did not die as a result of the attack and he should wait until it heals before selling it, but here, in our Gemara when the animal died, the victim owner should have sold it immediately.