פירוש על בבא קמא 11:12
Tosafot on Bava Kamma
To add [the halakha concerning] the rolled pit. In our text of the Gemara, which is Rashi’s text, the Gemara speaks only of a stone that was rolled to a second location and damaged there. The possibility of the stone damaging as it rolled is not discussed. There are two possibilities:
a) That the kicker is liable because it is his power that caused the damage.
b) There is a shared liability. The obstacle owner is liable for leaving the stone in a public domain and the kicker is liable for not being careful as he walked and kicked the stone to the point that it damaged.
Tosafot will discuss both possibilities.
In all the books it is written after the Gemara mentions a bor that was rolled about; if as they were moving they damaged, it is his, the kicker’s, power? His power is an extension of himself and the kicker should be liable as a person who damages. And Rashi says that we should not include this text in the Gemara. And his reason is because the Gemara says later in המניח (Bava Kamma 27b) it is not the norm for people to be cautious as they walk on the roads. One cannot be held liable for kicking a stone on the road since he usually would not notice that the stone was there.
And the one who left the obstacle there also cannot be held liable as a person who damages through his power which is an extension of himself, but only because he left his stone in an area where the likelihood of it being rolled about is comparable to a common wind and it, the stone, is like his fire which damages together with the wind. So too, the stone that was left where people would kick it about damages together with the power of the people who kick it. According to Rashi, the rolling stone cannot be thought of as the power of the person who left it there or the power of the kickers. It can only be thought of as the aish of the person who left it in the public domain where it would travel by the power of people or animals that kicked it.
And one should not erase this text because of this, Rashi’s dissatisfaction with the text. Because as far as people not walking with such force that a stone might spring and damage, it certainly is the norm to be cautious about how one is walking and he should be held liable if he kicks a stone and it damages others. And that is why the Gemara asks according to the variant text; it is his, the kicker’s, power and the kicker should be entirely liable and not the obstacle owner? This is possibility a).1 See Rashba who has a slightly different text of this Tosafot that suggests that there should be shared liability between the obstacle owner and the kicker.
Tosafot concludes that when a person leaves an object in a public domain and another person kicks it and it damages, it is the kicker who is liable. Tosafot shows us that there is a parallel case where the Gemara indicates otherwise.
And even though as far as a dog that took a biscuit together with a coal and went to a wheat stack etc. and subsequently burned the wheat stack (Bava Kamma 21b) the Gemara asks (Bava Kamma 23a); and let the coal owner also be liable? Because he is the owner of the obstacle, the coal that burned the wheat stack. We see that the Gemara there holds that the coal owner should also be liable (possibility b) and not only the transporter of the coal while here the Gemara is arguing that the transporter, the kicker should be liable and not the stone owner. That is because the dog is not an intelligent being and should therefore not be entirely liable for transporting the coal that was negligently left where he could take it, but here the roller is an intelligent being and should be entirely liable for kicking the stone.
We will prove this point, that an intelligent being is more readily liable for transporting or using a damager than the creator of the damager. For if one kindled a fire and another person burned his neighbor’s garment with that fire, or if one dug a bor and another came and pushed an ox into the bor, it is not logical that the bor owner or aish owner be liable. Although they created the damager, it is the other person who used the damager who is liable, so too, when one leaves a stone in a public domain and another kicks the stone and it damages it is the kicker who should be liable.
Up until this point Tosafot has focused on a stone left in a public domain that was kicked by a person. He has presented his reasons for the liability of the kicker. However the Gemara discusses a stone that was kicked by animals as well. The animal is not an intelligent being. Should he also be entirely liable for damages caused by his kicking the stone?
And the stone that was rolled by the feet of an animal, if it damaged as it moved both should be liable,2 For a detailed discussion of the nature of this shared liability, see Rosh and Maharsho.the animal owner and the obstacle owner.
One of Tosafot primary arguments is that a person who uses someone else’s damager such as kicker who kicks another’s stone, should be entirely liable, just as a person who pushes an ox into a bor. This ruling, that one who pushes an ox into a bor is exclusively liable is now scrutinized.
And that which the Gemara says later in Chapter הפרה (Bava Kamma 53b), an ox and a person who pushed another ox into a bor, as far as damages are concerned they are all liable. This implies that even the bor owner is partially liable. This contradicts our assumption that a person who pushes an ox into a bor is entirely liable. How do we reconcile this contradiction? One must say that there the Gemara is speaking about a person who did not intend to push the ox into the bor. And since he had no intent at all, the person is similar to an animal and the bor owner is also liable as is the non-intending person.
Now that Tosafot concludes that Rovo on 53b is discussing a non-intending person, we must view the remainder of Rovo’s statement and see if a non-intending person is compatible with other rulings of Rovo in that Gemara.
And that which the Gemara says there, in the discussion of an ox and a person who pushed another ox into a bor, as far as the matter of the four things and the payment for fetuses are concerned; only a person is liable. Those four things are: damages, pain, medical expenses and time lost from work, but for embarrassment one is not liable unless he intended to damage as the Gemara says in החובל (Bava Kamma 86a). And the four things of that Gemara on 53b are not the same as the four things mentioned earlier on 5b, for there (on 4b) he does not count damages among the four. The fourth is embarrassment.
We have shown that the four things mentioned by Rovo could be speaking about a person who damaged unintentionally. There are other damagers that Rovo discusses there on 53b.
And that which Rovo says (later 53b) as to the matter of kofer that one is liable to pay when his ox kills a person and the thirty sh’kolim of a slave that one is liable to pay when his ox kills a slave, the ox alone is liable. One must say that the ox is liable only when it intended, even though the ox being discussed is not similar to the person, about whom we have concluded that he did not have intention to harm. For without intention of the ox to harm there is no payment of kofer or thirty sh’kolim of a slave as the Gemara says at the end of שור שנגח ד' וה' (Bava Kamma 43a).
a) That the kicker is liable because it is his power that caused the damage.
b) There is a shared liability. The obstacle owner is liable for leaving the stone in a public domain and the kicker is liable for not being careful as he walked and kicked the stone to the point that it damaged.
Tosafot will discuss both possibilities.
In all the books it is written after the Gemara mentions a bor that was rolled about; if as they were moving they damaged, it is his, the kicker’s, power? His power is an extension of himself and the kicker should be liable as a person who damages. And Rashi says that we should not include this text in the Gemara. And his reason is because the Gemara says later in המניח (Bava Kamma 27b) it is not the norm for people to be cautious as they walk on the roads. One cannot be held liable for kicking a stone on the road since he usually would not notice that the stone was there.
And the one who left the obstacle there also cannot be held liable as a person who damages through his power which is an extension of himself, but only because he left his stone in an area where the likelihood of it being rolled about is comparable to a common wind and it, the stone, is like his fire which damages together with the wind. So too, the stone that was left where people would kick it about damages together with the power of the people who kick it. According to Rashi, the rolling stone cannot be thought of as the power of the person who left it there or the power of the kickers. It can only be thought of as the aish of the person who left it in the public domain where it would travel by the power of people or animals that kicked it.
And one should not erase this text because of this, Rashi’s dissatisfaction with the text. Because as far as people not walking with such force that a stone might spring and damage, it certainly is the norm to be cautious about how one is walking and he should be held liable if he kicks a stone and it damages others. And that is why the Gemara asks according to the variant text; it is his, the kicker’s, power and the kicker should be entirely liable and not the obstacle owner? This is possibility a).1 See Rashba who has a slightly different text of this Tosafot that suggests that there should be shared liability between the obstacle owner and the kicker.
Tosafot concludes that when a person leaves an object in a public domain and another person kicks it and it damages, it is the kicker who is liable. Tosafot shows us that there is a parallel case where the Gemara indicates otherwise.
And even though as far as a dog that took a biscuit together with a coal and went to a wheat stack etc. and subsequently burned the wheat stack (Bava Kamma 21b) the Gemara asks (Bava Kamma 23a); and let the coal owner also be liable? Because he is the owner of the obstacle, the coal that burned the wheat stack. We see that the Gemara there holds that the coal owner should also be liable (possibility b) and not only the transporter of the coal while here the Gemara is arguing that the transporter, the kicker should be liable and not the stone owner. That is because the dog is not an intelligent being and should therefore not be entirely liable for transporting the coal that was negligently left where he could take it, but here the roller is an intelligent being and should be entirely liable for kicking the stone.
We will prove this point, that an intelligent being is more readily liable for transporting or using a damager than the creator of the damager. For if one kindled a fire and another person burned his neighbor’s garment with that fire, or if one dug a bor and another came and pushed an ox into the bor, it is not logical that the bor owner or aish owner be liable. Although they created the damager, it is the other person who used the damager who is liable, so too, when one leaves a stone in a public domain and another kicks the stone and it damages it is the kicker who should be liable.
Up until this point Tosafot has focused on a stone left in a public domain that was kicked by a person. He has presented his reasons for the liability of the kicker. However the Gemara discusses a stone that was kicked by animals as well. The animal is not an intelligent being. Should he also be entirely liable for damages caused by his kicking the stone?
And the stone that was rolled by the feet of an animal, if it damaged as it moved both should be liable,2 For a detailed discussion of the nature of this shared liability, see Rosh and Maharsho.the animal owner and the obstacle owner.
One of Tosafot primary arguments is that a person who uses someone else’s damager such as kicker who kicks another’s stone, should be entirely liable, just as a person who pushes an ox into a bor. This ruling, that one who pushes an ox into a bor is exclusively liable is now scrutinized.
And that which the Gemara says later in Chapter הפרה (Bava Kamma 53b), an ox and a person who pushed another ox into a bor, as far as damages are concerned they are all liable. This implies that even the bor owner is partially liable. This contradicts our assumption that a person who pushes an ox into a bor is entirely liable. How do we reconcile this contradiction? One must say that there the Gemara is speaking about a person who did not intend to push the ox into the bor. And since he had no intent at all, the person is similar to an animal and the bor owner is also liable as is the non-intending person.
Now that Tosafot concludes that Rovo on 53b is discussing a non-intending person, we must view the remainder of Rovo’s statement and see if a non-intending person is compatible with other rulings of Rovo in that Gemara.
And that which the Gemara says there, in the discussion of an ox and a person who pushed another ox into a bor, as far as the matter of the four things and the payment for fetuses are concerned; only a person is liable. Those four things are: damages, pain, medical expenses and time lost from work, but for embarrassment one is not liable unless he intended to damage as the Gemara says in החובל (Bava Kamma 86a). And the four things of that Gemara on 53b are not the same as the four things mentioned earlier on 5b, for there (on 4b) he does not count damages among the four. The fourth is embarrassment.
We have shown that the four things mentioned by Rovo could be speaking about a person who damaged unintentionally. There are other damagers that Rovo discusses there on 53b.
And that which Rovo says (later 53b) as to the matter of kofer that one is liable to pay when his ox kills a person and the thirty sh’kolim of a slave that one is liable to pay when his ox kills a slave, the ox alone is liable. One must say that the ox is liable only when it intended, even though the ox being discussed is not similar to the person, about whom we have concluded that he did not have intention to harm. For without intention of the ox to harm there is no payment of kofer or thirty sh’kolim of a slave as the Gemara says at the end of שור שנגח ד' וה' (Bava Kamma 43a).
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