פירוש על בבא קמא 30:37

Let [the braita] differentiate and teach with regard to [the case] itself; in what [case] is this statement said? [It is said] with regard to a forewarned [ox], but with regard to [one’s] innocuous [ox] etc. The Gemara introduced a Mishna in Ketubot 41a in order to prove that half damages is compensation. The Mishna says that if one confesses that his ox killed a person he is liable. The Gemara deflects this argument by saying the Mishna is discussing a muad. A tam however would be exempt because his payment is a fine for which one is not liable by his own confession. It is only upon the testimony of witnesses that he is liable.
The Gemara counters: If that is so, when the Mishna wants to illustrate how one is not liable by his own confession, why does it introduce the issue of an ox killing a slave, it could have simply said, that liability by confession is limited to a muad, but if the ox is a tam, the owner is not liable by confession.
Tosafot understands that the Gemara’s question refers to the case in the Mishna “my ox killed p’lonee”,¹See Rashi ד"ה לפלוג וליתני בדידה who clearly says that the Gemara’s question is from the second case in the beginning of the Mishna: my ox killed p’lonee’s ox, which is a case where all agree that he would be liable by the testimony of witnesses and the debate is only whether he is liable by confession. However see Rashi to Ketubot 41b ד"ה נפלוג, where Rashi seems to say that the question is also from the case of “my ox killed p’lonee”. See Tosafot HoRosh who adopts an approach that is similar to Rashi. See Maharsho here who explains why Tosafot does not explain our Gemara as Rashi does here and insists that the Gemara’s question is from the case of “my ox killed p’lonee”. and the Gemara is asking that in this case the Gemara should have said: If the ox was a tam and the owner confesses he is not liable. This presumes that there would be liability if witnesses testified that the tam ox killed p’lonee. But we have seen that only R’ Yosee HaG’leelee holds this position while others hold that there is never liability for half kofer.
This is bewildering! How could the Gemara possibly say this: That the Mishna should have said, but if the ox is a tam he does not pay by his own confession, which implies that by the testimony of witnesses he does pay when his tam ox killed p’lonee.
Perhaps the Tano of the Mishna in Ketubot does not hold like R’ Yosee HaG’leelee who says that tam pays half kofer²When the Gemara initially introduces the Mishna of Ketubot 41a and asks: “isn't it speaking about a tam?” there was a presumption that the Mishna is following R’ Yosee HaG’leelee, otherwise the Gemara would have no question. Even if the Mishna is speaking about a tam, there may be no liability for half kofer. Why is Tosafot only bothered with this presumption when the Gemara takes its question to the second level and argues that the Mishna should have distinguished within the case it was discussing? Why didn't Tosafot ask his question about the initial presumption of the Gemara? See אוצר התוספות note 2362. and even when there are witnesses the tam owner would not be liable? That is why he must turn to the case of an ox killing a slave to show how one is exempt by his own admission. How can we present this as a question to the one who holds that half damages is a fine?

And now that you have said [that the payment of] half the damage is a fine. The Gemara says: And now that we say that half damages is a fine, a dog that eats a sheep and a cat that eats a chicken, are atypical and since the liability is a fine, it cannot be collected in Babylonia. In order to collect fines the court must consist of judges who have s’meechoh. The courts in Babylonia lacked this level of ordination and thus could not rule in matters of fines and penalties.
There is a deeper issue in this Gemara. Is one liable when his animal damages in an unusual manner? If we adopt the view that half damages are a fine, it is in effect a statement that there is liability for atypical behavior. The ox is considered guarded as relates to goring people, even so when he behaves in an atypical manner and gores, his owner is liable.
If we adopt the opposing view that oxen are not guarded as relates to goring, we are saying that the oxen are constantly in a state of agitation that causes them to gore. This behavior is then typical and to be expected and that is why one is liable when they damage. When we contemplate a clearly atypical behavior such as dogs eating sheep or cats eating chickens, can liability for such atypical behavior be derived from the tam ox, which is held liable only for behavior that is to be expected from him?
When our Gemara says “now that we hold half damages are a fine, a dog that eats a sheep or a cat that eats a chicken is atypical and this cannot be collected in Babylonia”, does the Gemara mean that we have a source for liability, but it is limited to Eretz Yisro’ail, or perhaps the Gemara means that according to the opposing view, these too are compensation and can be collected even in Babylonia?
Tosafot clearly holds that the Gemara is adopting the position that we now have a source for atypical damages. Otherwise, if we held that half damages are compensation, we would have no source for liability when the damage was atypical.
It appears that it is exclusively according to the one who holds half damages are a fine that we have a source for liability of atypical damages, but collection is limited to Eretz Yisro’ail,
however, according to the one who says that half damages is compensation, one is not liable at all when his animal damages in an atypical manner such as a dog eating sheep or a cat eating chickens.
For from where is it to be derived that there is liability for atypical damages?
For it cannot be derived from keren, because keren damages in a usual way, because ordinary oxen are not assumed to be guarded, they are usually agitated and it is to be expected that they might gore, and this behavior such as dogs eating sheep is atypical, for it is unusual for a dog to eat large sheep, and we have no source from which to derive liability for atypical behavior.
However, according to the one who holds half damages is a fine, damaging that is atypical behavior is a derivative of keren, for they are both, keren and dogs that eat large sheep atypical, even though keren is distinct in the sense that there is intent to damage, which is untrue of dogs eating sheep, their intention is for their own benefit.

And if [he] seized [the property] we do not reclaim [it] from him. And if the damages victim seized, (the Gemara does not identify exactly what he seized) we do not extract from him that which he is holding of the damager. What exactly is the victim allowed to seize? May he take any of the damager’s property or are their some limitations?
Rabbeinu Tam says: that it is only when he seized the damager animal itself, for example the dog or cat that ate his sheep or chicken, did the Gemara say that we do not extract from him that which he is holding. For it is only about the damaging animal that the Sages were lenient and allowed him to seize it, if he took it at the time of the damage,¹See Tosafot HoRosh who says that there is no restriction to seizing at the time of the damage. Any time the victim seizes from the damager, he is permitted to hold it until the court rules that he must return whatever amount is beyond what he was allowed to take. but he may not seize anything else.
For if it was so, that any item the victim seizes, we do not confiscate from him, this will lead to a problem, for today or tomorrow, he, the victim, will steal all that is his, the damager’s, and we will not confiscate from him, because we, in Babylonia, do not judge fines,²Tosafot holds that any determination that the victim seized more than he is allowed to would fall under the restriction of not judging matters of fines. See Rosh who vehemently disagrees with Rabbeinu Tam in this matter. He holds that the determination that the victim has seized more than the damager owes him does not constitute “ruling in matters of fines”. Shulchon Oruch C.M. 1, 5, rules in favor of Rosh. and this damager will lose more that he damaged.
And that which the Gemara says in Kaitzad HoRegel (below 19b): There was a donkey that ate bread and chewed the basket and Rav Y’hudoh required its owner to pay full damages for the bread and half damages for the basket. But since half damages are a fine, Rav Y’hudoh should not have judged the matter in Babylonia?³Why does Tosafot raise this question after introducing Rabbeinu Tam’s opinion? It would seem that this question can be asked even according to Rosh, who holds that the victim can seize any of the property of the damager. אוצר התוספות note 2377 quotes חידושי הרי'ם who explains that the question is addressed specifically to Rabbeinu Tam. Choshen Mishpot 58, 5, rules that even when a borrower specifies that he is paying off one loan, the lender can claim that he accepted it as payment for a different loan, when it is to the advantage of the lender to have the second loan paid off and the first one left open. So too, when the damager paid for the bread, the victim can say that he is taking it as payment for the basket and the debt for the bread remains open. This debt can be adjudicated in Babylonia. However, according to Rabbeinu Tam who holds that the victim can only seize the damaging animal, the victim does not have the right to insist that he accepted the payment for the bread towards the basket. Thus the contradiction of the two Gemaras is only according to Rabbeinu Tam and not according to Rosh who holds that one can accept the payment for the bread towards the debt of the basket.
That is speaking when he, the victim, seized the donkey, or he was forcing the damager to pay by the threat of enacting a ban, because he had asked the court to set a date for the damager and the victim to travel to Eretz Yisro’ail and adjudicate the matter there, which he is entitled to do as we see in our Gemara. The damager who did not want to travel to Eretz Yisro’ail to settle the matter agreed to have the matter settled in Rav Y’hudoh’s court and he ruled that he is liable for half damages for the chewed up basket.

And the snake; these [are considered] forewarned.This Tosafot belongs to the Mishna on 15b.
The wolf, lion, bear, leopard, bardelas and the snake are all muad. They are not considered muad in all matters of damage, but each one is muad only in the mode that it is usual for him to damage.
The Gemara on 16b will explain that all of the methods mentioned here are the usual ways that these animals kill for food. For example: a wolf comes and tears apart its prey, or a lion comes and pounces on its prey and eats it before it dies, or the lion tore it apart and killed it in order to leave it to be eaten later.
However, when damaging in a mode that is unusual, for example a lion that tore apart its prey and ate it, and so too, when damaging by other methods that are unusual, they are not muad, rather they pay half damages. Unusual damages are derivatives of keren.
And when damaging in ways that are usual where the rule is that they must pay full damages, that is exclusively when they damage in the courtyard of the nizok, but when damaging in a public domain, the owner is exempt, because it is shain in a public domain, as Shmuel says in the Gemara (16b): a lion in a public domain who pounces on his prey and eats it while still alive is exempt. It is the normal way that a lion hunts for food and it is a derivative of shain which is exempt in a public domain.
And even a snake that derives no pleasure from his biting, as the Gemara says in the first Perek of Taanis (8a): that all the wild beasts gather next to the snake and say to him: what pleasure do you have from biting? This of course indicates that it was known to our Sages that a snake has no physical pleasure from biting and his biting can not be classified as a derivative of shain whose characteristic is that it derives pleasure when damaging, even so, since it is usual for him, the snake, to do this, bite without deriving any pleasure, it is similar to regel, which also does not derive any pleasure from damaging and the owner is exempt in a public domain.
And it, the snake biting, is not like keren after it becomes muad, even though it intends to harm, which is a characteristic of keren. This can be seen from the fact that the Mishna lists the snake together with the others.

Rabbi Elazar says: When these [animals] are domesticated they are not [considered] forewarned. R’ Elozor says: When they, the wild beasts enumerated in the Mishna, are domesticated, they are not muad. Raising them in a household is an effective way of taming them and they are considered like an ox that is not muad until it damages three times.
This is bewildering! For in the beginning of the first Perek of Sanhedrin (2a) the Mishna teaches: the lion, wolf, bear etc. [are judged by a court of twenty three when they kill a person] R’ Elozor says: whoever is first to kill them did a meritorious act. There is no need for a court trial.
And R’ Yochanan explains in the Gemara (ibid. 15b): That R’ Elozor’s ruling is in effect even if they, the wild animals, did not yet kill, because they cannot be domesticated and they have no owners.¹See Rashi in Sanhedrin 15b ד"ה יש להם תרבות who says that they are considered as ownerless, because their owner should not have brought them into his house in an attempt to tame them. R’ Elozor’s ruling, according to R’ Yochanan’s interpretation says that wild animals cannot be tamed. This contradicts our Mishna where R’ Elozor says they can be tamed.
And R’I says: That here our text is R’ Elozor who chronologically was after R’ Mayer, as they are mentioned in this order in the Braita here, and there in Sanhedrin (2a) our text is R’ Eliezer who preceded R’ Akiva, for it is taught after the statement of R’ Eliezer: R’ Akiva says etc. This indicates that the author of the preceding statement was R’ Eliezer ben Hurkanus, who preceded R’ Akiva, and not R’ Elozor ben Shamua, who followed R’ Mayer a disciple of R’ Akiva.
There is another contradiction between the two Mishnayos.
However, there is still a difficulty, for our Mishna teaches: And the snake is always muad and cannot be tamed, and this is according to all opinions.²The first Tano holds that wild beasts cannot be trained. R’ Elozor argues about all others, but agrees that a snake cannot be domesticated.
And there Resh Lokish explains: That even R’ Eliezer who says “whoever is first to kill them did a meritorious act” says so only if they killed, but if they did not kill one is not permitted to kill them.
The Gemara in Sanhedrin clarifies Resh Lokish’s position:
He, Resh Lokish, holds that they, the wild animals, can be domesticated and they have owners³Rashi (ibid.) ד"ה ואין להם בעלים: it is permitted to bring them into one’s house because they can be tamed and therefore the name of their owner’s is upon them. and that refers even to the snake. According to Resh Lokish even R’ Eliezer, who holds that wild beasts can be killed without the benefit of a court trial, holds that a snake can be tamed, whereas in our Mishna all hold that a snake cannot be tamed.
In order to reconcile the Mishnayos we must distinguish between various levels of domestication. Says Rabbeinu Tam: That there in Sanhedrin it is speaking about when the wild animals are tied with chains, for example a lion in its cage,⁴In Gittin 31b and in Bava Metzia 73b we find this word as a description of a carriage for transporting people. Perhaps Tosafot is describing a movable lion cage. for in this manner they can be domesticated and are not considered muad to damage [and one should not kill them unless they already killed. Whereas the level of domestication we are speaking about here in our Mishna is that he, their owner, raised them in his house]. Our Mishna is saying that all agree that raising a snake in one’s house does not remove it from the classification of muad. If it is left free, it is still muad to damage. The Mishna there is saying that when chained, all the wild animals including a snake are not muad to damage.
A second difference between the two Mishnayos: And one can also differentiate between the Mishnayos here and in Sanhedrin as follows: It is specifically as relates to this matter: That whoever is first should not kill them unless they killed, that Resh Lokish said that even R’ Eliezer holds they can be domesticated and are considered tame and there is no merit for killing them,
but in regard to the issue of when they damage, do they pay full damages or not, in this matter, whether their domestication is considered effective domestication so that they should not be considered muad to pay full damages, or not, the Mishna in Sanhedrin is not addressing at all. That issue is addressed here in our Mishna in the dispute between the first Tano who holds that they cannot be domesticated and always pay full damage and R’ Elozor who says that with the exception of the snake they can be domesticated and pay half damages.