פירוש על בבא קמא 12:25
Tosafot on Bava Kamma
Ox of another, etc. See end of Tosafot for a general outline of the steps of this Tosafot.
The Gemara here quotes only this source as proof that when a private individual’s ox damages an ox that belongs to the temple treasury, there is no liability. Tosafot will first prove that this ruling is not unique to keren; it applies to all damagers and to a person who damages as well. Then Tosafot will show how we know that this exemption applies to all of the avos.
In the Braita R’ Akiva stated that we learn from a kal v’chomer that one who pays damages to the temple treasury should pay from his finest property. The Gemara challenged this statement by arguing that we have a ruling that when a privately owned ox gores an ox that belongs to the temple treasury, he is exempt and there is no payment at all. The Gemara attempts to apply the kal v’chomer to other situations where one might owe money to the temple treasury. It never tries to apply the kal v’chomer to other primary damagers.
This is bewildering. And the Gemara should say that the Braita is speaking about shain and regel that damaged a field belonging to the temple treasury and is telling us that payment must be made from the choicest. For there in regard to shain and regel the phrase “his friend” that excludes the temple treasury is not written and we can assume that one is liable for damaging temple properties by shain or regel. But perhaps we should learn from keren that just as keren is exempt when it damages temple property, so to shain and regel are exempt when they damage temple property? And from keren we cannot derive that shain and regel are exempt because keren is weaker than shain or regel and therefore more likely to be exempt, since it is not initially a muad as are shain and regel.
The Gemara said earlier on 5a that we learn that all avos pay from the choicest from a textual comparison that encompasses four words תחת נתינה, ישלם and כסף. Perhaps that common word dedrivation can be used to teach that all avos are exempt when they damage the temple treasury?
And with the textual comparison of תחת, נתינה, ישלם and כסף, we can also not learn that all avos are exempt for damaging the temple treasury properties, for that גזירה שוה was received from Sinai only as far as the topic of payment from the choicest is concerned, to teach us that all avos must pay from the choicest and not to learn that the special exemptions of all the individual avos apply to all the other avos.
For if it was meant to teach that the special exemptions of the individual avos apply to all the damagers and not exclusively to teach that the manner of payment is from the choicest, all the avos should be exempt for damaging hidden objects which can be learned from aish, in a public domain which can be learned from shain and regel, and for damaging vessels and disqualified sacrifices which can be learned from bor.
Tosafot will now demonstrate that all damagers, even a person are exempt from payment when damaging the Temple treasury and he will also show us how this is derived.
And we can answer: that all damagers are exempt when damaging the temple treasury property as is evident from Yerushalmi at the beginning of Haneezokin. The Yerushalmi says there during a discussion of the kal v’chomer that the temple treasury should be paid from the choicest: what circumstances are we discussing? If we are discussing payment for damages, we have learned in a Braita, one is liable for damaging the ox of his friend and not the ox of the temple treasury. At this point Yerushalmi discounts any possibility for payment of damages to the Temple treasury even for shain and regel.
Yerushalmi continues:
And if we are discussing damages by his person, R’ Ḥiyya has taught in a Braita, one is liable for damages to a private individual and not for damages to the temple treasury. Rather, we must be discussing one who says, I am hereby obligated to give a moneh, one hundred zuz, to the fund for repairing the house of Hashem. What emerges is that there is no possibility of paying damages to the temple treasury, neither for shain and regel nor for a person who damages. The only case that one is liable to pay the temple treasury is when one says I hereby accept upon myself to give a moneh to the fund for the repair of the House of Hashem.
And so it seems from our Mishna that teaches (Bava Kamma 9b) when the Mishna list the condition under which one is liable for damages, that one of the conditions for payment of damages is that the damaged property be such property that does not carry liability for illegally benefiting from the temple treasury, in other words private property. And that requirement refers to all avos mentioned in our Mishna and even to a person who damages; according to the one who says that maveh in our Mishna refers to a person.
There is one source that seems to contradict Tosafot assertion that all avos including a person are exempt for damaging the temple treasury properties.
And that which Shmuel says in Hasho’ail (Bava Metzia 99b) when expounding the verse that discusses the liability for eating t’rumoh, the gift from agricultural produce to the Kohanim, “when one will eat”, “eat”, implies that one benefits this excludes a person who damages the T’rumoh as opposed to eating it, who does not pay an additional fifth. It appears from the Gemara there that this exclusion applies to the additional fifth that one must add when eating T’rumoh but for the principal the damager is liable. This contradicts Tosafot contention that all damagers are exempt when damaging the temple treasury property. That payment for the principal is rabbinic law. Biblical law exempts a damager from any payment to the temple treasury funds.
Tosafot is satisfied with his conclusion that all damagers including a person are exempt when damaging temple treasury property. What remains to be seen is how the Gemara knows that this is so. The Gemara does not tell us any source for exempting all damagers, but we do know that there are exemptions for some of them. We have seen that there is an exemption for keren, שור רעהו, and for a person, כי יאכל that excludes a damager.
And it appears: that the other damagers that are exempt when they damage temple treasury property are derived from a combination of keren, a person and a bor. The bor is exempt for disqualified sacrifices1The Gemara later on (Bava Kamma 53b) says that when a disqualified sacrifice falls into a bor, the bor owner is exempt from damages. The Torah says about an ox falling into a bor “and the carcass shall belong to him”. This indicates that the payment of damages is in effect only when the ox owner has a financial interest in the carcass. In the case of disqualified sacrifices the owner only has the right to eat the animal, once it is dead there is nothing he can do with it. 2Many are puzzled with the need for bor as a third source from which to derive the exemption for damaging temple properties. As Tosafot continues it is fairly evident that the exemption can be derived from keren and a person who damages. Some suggest that perhaps bor is needed to teach that all other avos are exempt for damaging disqualified sacrifices. See Otzar HaTosafot for a lengthy discussion of this question. and by a kal v’chomer for temple treasury property.
And if you ask: how can we learn shain3The same question and answer apply to regel whose damage is common as compared to other avos. from this combination? Shain has a stringent characteristic that none of the sources have, it derives pleasure from its damaging.
The refutation, that shain has a characteristic that none of the others have cannot be denied. We must resort to another system of comparing shain to the sources in order to arrive at the conclusion that shain too is exempt when damaging temple treasury property.
And we can answer: that even though there is a specific aspect of shain that is stronger than a person who damages it is nevertheless more appropriate that a person should be liable for damaging with his hands4A euphemism for damaging with one’s person. than to be liable for “sending his animal”.5The verse that discusses shain begins with the expression “he will send his animal”.
Tosafot has concluded that once we know that a person is exempt when damaging temple treasury properties, it follows that if his property damages the temple treasury properties he should also be exempt. We must now review the other sources that were quoted as proof of a general exemption for damaging temple treasury properties.
And if you ask: The term “his friend” that comes to exclude keren that damages temple property, why is it necessary for the Torah to write a second exclusionary word? It can be derived from the verse that discusses t’rumoh “when one will eat” that excludes one who damages without benefiting as it says in Masechet M’eeloh (Meilah 19a), the Torah compares the temple properties to t’rumoh. Just as of t’rumoh it is written “when one will eat” to exclude a damager, so too, for temple properties, for any item which is edible that one damages, he is exempt. And the Gemara does not specifically mean only edible items that are damaged; one is exempt for damaging inedible items as well. (See Rashi and Tosafot there אקשיה רחמנא לתרומה ד"ה.)
Earlier in this Tosafot there was some speculation about whether the exclusion of damaging t’rumoh applies only to the additional fifth or to the principal as well. Tosafot now uses this problematic point to explain why the Torah had to write an exclusion for keren as well.
And we can answer: if we would not find that a damager of temple properties is exempt, we would expound the verse “when he eats” which excludes a damager, only to exempt the damager from the additional fifth, but he would still be liable for the principal. It is only because we see that the Torah excluded keren from any payment whatsoever for temple property that we say that a person is also totally exempt.
Until this point Tosafot has assumed that one who damages temple property is exempt even from payment for the principal not only for the additional fifth. We have learned that the exclusion for damaging temple property is derived from the laws of t’rumoh. Tosafot will now deal with the fact that for t’rumoh itself we find that the damager is liable for the principal.
And even though the phrase “when one will eat” is written about t’rumoh, and there regarding t’rumoh a damager is liable for the principal, which seems to contradict our contention that one is entirely exempt when damaging temple property. The payment for the principal of t’rumoh is different, for there he is damaging the property of the kohain. T’rumoh is a unique situation of double ownership. A section of the produce is set aside to permit eating the rest of the produce and it is sanctified with the holiness of t’rumoh. If at that point in time the owner of the produce eats the t’rumoh he is required to replace the t’rumoh and add a fifth. If he destroys the t’rumoh he is not liable at all, as we have learned “when he will eat” excludes a damager. Once the t’rumoh is given to a kohain, in addition to being t’rumoh it is also the property of the kohain. If one damages the t’rumoh at this time he is liable to pay the principal to the kohain just as if he had damaged any other property of the kohain. In any case liability for the principal of t’rumoh is not derived from this verse, “when he will eat”, this verse would exempt him even from the principal, as it in fact does when there is no kohain involved, rather, the source for his liability is from another verse, because he, one who damages the kohain’s t’rumoh is comparable to one who steals from his neighbor and/or damages him. It is only for the kohain’s private ownership after the t’rumoh was given to him that a damager is liable for the principal.
Tosafot now reverts to questioning his original solution about the source for the exemption for damaging temple property; that the exemption for damaging the temple properties for all avos is derived from three sources, keren, a person who damages and bor.
However, according to the one who says (Bava Kamma 26a) that one is liable to pay kofer when his animal kills a person with its regel, the exemption for damaging temple property cannot apply to regel. One can refute the derivation by arguing how can you compare regel to keren, a person who damages and bor to learn that the leniency that they are not liable for damaging temple property applies to regel? Regel is not as lenient as they are. For if one kills a person through keren, personally or bor, one does not pay kofer for the first violation,6A person or a bor that kills does not pay kofer at all. Keren does pay kofer, but not for the first violation. They all share the same leniency that they do not pay kofer for the first violation. but regel does pay kofer for the first violation. The leniency of the others cannot be transferred to regel because we find that regel is more stringent than they are.
But according to R’ Tarfon who holds that a tam, first time violator, pays full kofer the derivation is sound.
Due top the complexity of this Tosafot, we will offer a general outline of the various steps of this Tosafot.
A) Tosafot asks that perhaps shain and regel are liable for damaging Temple property.
Tosafot shows that keren cannot be used as a source for exempting all the avos, either:
1) As a בנין אב,
2) Or via a גזירה שוה- common word derivation.
B) Tosafot shows from Yerushalmi and our Mishna that the exemption for damaging Temple property applies to all avos, and that the Gemara in Bava Metzia that indicates there is liability for the principal is only by Rabbinic law.
C) Tosafot concludes that the general exemption is derived from three avos: keren, a person and bor.
D) Tosafot asks how can shain (and perhaps regel) be derived from all three, it is more stringent.
E) Tosafot answers that ultimately a person should be more liable for his own damage than for the damage of his animal.
F) Once we know that a person is exempt for damaging Temple property, why do we need any other source?
G) Our understanding that there is total exemption even for the principal comes from the verse about keren.
H) The verse כי יאכל is discussing t’rumoh and there is liability for the principal when one destroys t’rumoh.
I) That liability is in effect only when dealing with the aspect of t’rumoh that is the property of the Kohain.
J) Regel has a stringent ruling that it is liable for kofer the first time it kills, which all of the sources do not have.
K) R’ Tarfon holds that keren also pays kofer the first time.
The Gemara here quotes only this source as proof that when a private individual’s ox damages an ox that belongs to the temple treasury, there is no liability. Tosafot will first prove that this ruling is not unique to keren; it applies to all damagers and to a person who damages as well. Then Tosafot will show how we know that this exemption applies to all of the avos.
In the Braita R’ Akiva stated that we learn from a kal v’chomer that one who pays damages to the temple treasury should pay from his finest property. The Gemara challenged this statement by arguing that we have a ruling that when a privately owned ox gores an ox that belongs to the temple treasury, he is exempt and there is no payment at all. The Gemara attempts to apply the kal v’chomer to other situations where one might owe money to the temple treasury. It never tries to apply the kal v’chomer to other primary damagers.
This is bewildering. And the Gemara should say that the Braita is speaking about shain and regel that damaged a field belonging to the temple treasury and is telling us that payment must be made from the choicest. For there in regard to shain and regel the phrase “his friend” that excludes the temple treasury is not written and we can assume that one is liable for damaging temple properties by shain or regel. But perhaps we should learn from keren that just as keren is exempt when it damages temple property, so to shain and regel are exempt when they damage temple property? And from keren we cannot derive that shain and regel are exempt because keren is weaker than shain or regel and therefore more likely to be exempt, since it is not initially a muad as are shain and regel.
The Gemara said earlier on 5a that we learn that all avos pay from the choicest from a textual comparison that encompasses four words תחת נתינה, ישלם and כסף. Perhaps that common word dedrivation can be used to teach that all avos are exempt when they damage the temple treasury?
And with the textual comparison of תחת, נתינה, ישלם and כסף, we can also not learn that all avos are exempt for damaging the temple treasury properties, for that גזירה שוה was received from Sinai only as far as the topic of payment from the choicest is concerned, to teach us that all avos must pay from the choicest and not to learn that the special exemptions of all the individual avos apply to all the other avos.
For if it was meant to teach that the special exemptions of the individual avos apply to all the damagers and not exclusively to teach that the manner of payment is from the choicest, all the avos should be exempt for damaging hidden objects which can be learned from aish, in a public domain which can be learned from shain and regel, and for damaging vessels and disqualified sacrifices which can be learned from bor.
Tosafot will now demonstrate that all damagers, even a person are exempt from payment when damaging the Temple treasury and he will also show us how this is derived.
And we can answer: that all damagers are exempt when damaging the temple treasury property as is evident from Yerushalmi at the beginning of Haneezokin. The Yerushalmi says there during a discussion of the kal v’chomer that the temple treasury should be paid from the choicest: what circumstances are we discussing? If we are discussing payment for damages, we have learned in a Braita, one is liable for damaging the ox of his friend and not the ox of the temple treasury. At this point Yerushalmi discounts any possibility for payment of damages to the Temple treasury even for shain and regel.
Yerushalmi continues:
And if we are discussing damages by his person, R’ Ḥiyya has taught in a Braita, one is liable for damages to a private individual and not for damages to the temple treasury. Rather, we must be discussing one who says, I am hereby obligated to give a moneh, one hundred zuz, to the fund for repairing the house of Hashem. What emerges is that there is no possibility of paying damages to the temple treasury, neither for shain and regel nor for a person who damages. The only case that one is liable to pay the temple treasury is when one says I hereby accept upon myself to give a moneh to the fund for the repair of the House of Hashem.
And so it seems from our Mishna that teaches (Bava Kamma 9b) when the Mishna list the condition under which one is liable for damages, that one of the conditions for payment of damages is that the damaged property be such property that does not carry liability for illegally benefiting from the temple treasury, in other words private property. And that requirement refers to all avos mentioned in our Mishna and even to a person who damages; according to the one who says that maveh in our Mishna refers to a person.
There is one source that seems to contradict Tosafot assertion that all avos including a person are exempt for damaging the temple treasury properties.
And that which Shmuel says in Hasho’ail (Bava Metzia 99b) when expounding the verse that discusses the liability for eating t’rumoh, the gift from agricultural produce to the Kohanim, “when one will eat”, “eat”, implies that one benefits this excludes a person who damages the T’rumoh as opposed to eating it, who does not pay an additional fifth. It appears from the Gemara there that this exclusion applies to the additional fifth that one must add when eating T’rumoh but for the principal the damager is liable. This contradicts Tosafot contention that all damagers are exempt when damaging the temple treasury property. That payment for the principal is rabbinic law. Biblical law exempts a damager from any payment to the temple treasury funds.
Tosafot is satisfied with his conclusion that all damagers including a person are exempt when damaging temple treasury property. What remains to be seen is how the Gemara knows that this is so. The Gemara does not tell us any source for exempting all damagers, but we do know that there are exemptions for some of them. We have seen that there is an exemption for keren, שור רעהו, and for a person, כי יאכל that excludes a damager.
And it appears: that the other damagers that are exempt when they damage temple treasury property are derived from a combination of keren, a person and a bor. The bor is exempt for disqualified sacrifices1The Gemara later on (Bava Kamma 53b) says that when a disqualified sacrifice falls into a bor, the bor owner is exempt from damages. The Torah says about an ox falling into a bor “and the carcass shall belong to him”. This indicates that the payment of damages is in effect only when the ox owner has a financial interest in the carcass. In the case of disqualified sacrifices the owner only has the right to eat the animal, once it is dead there is nothing he can do with it. 2Many are puzzled with the need for bor as a third source from which to derive the exemption for damaging temple properties. As Tosafot continues it is fairly evident that the exemption can be derived from keren and a person who damages. Some suggest that perhaps bor is needed to teach that all other avos are exempt for damaging disqualified sacrifices. See Otzar HaTosafot for a lengthy discussion of this question. and by a kal v’chomer for temple treasury property.
And if you ask: how can we learn shain3The same question and answer apply to regel whose damage is common as compared to other avos. from this combination? Shain has a stringent characteristic that none of the sources have, it derives pleasure from its damaging.
The refutation, that shain has a characteristic that none of the others have cannot be denied. We must resort to another system of comparing shain to the sources in order to arrive at the conclusion that shain too is exempt when damaging temple treasury property.
And we can answer: that even though there is a specific aspect of shain that is stronger than a person who damages it is nevertheless more appropriate that a person should be liable for damaging with his hands4A euphemism for damaging with one’s person. than to be liable for “sending his animal”.5The verse that discusses shain begins with the expression “he will send his animal”.
Tosafot has concluded that once we know that a person is exempt when damaging temple treasury properties, it follows that if his property damages the temple treasury properties he should also be exempt. We must now review the other sources that were quoted as proof of a general exemption for damaging temple treasury properties.
And if you ask: The term “his friend” that comes to exclude keren that damages temple property, why is it necessary for the Torah to write a second exclusionary word? It can be derived from the verse that discusses t’rumoh “when one will eat” that excludes one who damages without benefiting as it says in Masechet M’eeloh (Meilah 19a), the Torah compares the temple properties to t’rumoh. Just as of t’rumoh it is written “when one will eat” to exclude a damager, so too, for temple properties, for any item which is edible that one damages, he is exempt. And the Gemara does not specifically mean only edible items that are damaged; one is exempt for damaging inedible items as well. (See Rashi and Tosafot there אקשיה רחמנא לתרומה ד"ה.)
Earlier in this Tosafot there was some speculation about whether the exclusion of damaging t’rumoh applies only to the additional fifth or to the principal as well. Tosafot now uses this problematic point to explain why the Torah had to write an exclusion for keren as well.
And we can answer: if we would not find that a damager of temple properties is exempt, we would expound the verse “when he eats” which excludes a damager, only to exempt the damager from the additional fifth, but he would still be liable for the principal. It is only because we see that the Torah excluded keren from any payment whatsoever for temple property that we say that a person is also totally exempt.
Until this point Tosafot has assumed that one who damages temple property is exempt even from payment for the principal not only for the additional fifth. We have learned that the exclusion for damaging temple property is derived from the laws of t’rumoh. Tosafot will now deal with the fact that for t’rumoh itself we find that the damager is liable for the principal.
And even though the phrase “when one will eat” is written about t’rumoh, and there regarding t’rumoh a damager is liable for the principal, which seems to contradict our contention that one is entirely exempt when damaging temple property. The payment for the principal of t’rumoh is different, for there he is damaging the property of the kohain. T’rumoh is a unique situation of double ownership. A section of the produce is set aside to permit eating the rest of the produce and it is sanctified with the holiness of t’rumoh. If at that point in time the owner of the produce eats the t’rumoh he is required to replace the t’rumoh and add a fifth. If he destroys the t’rumoh he is not liable at all, as we have learned “when he will eat” excludes a damager. Once the t’rumoh is given to a kohain, in addition to being t’rumoh it is also the property of the kohain. If one damages the t’rumoh at this time he is liable to pay the principal to the kohain just as if he had damaged any other property of the kohain. In any case liability for the principal of t’rumoh is not derived from this verse, “when he will eat”, this verse would exempt him even from the principal, as it in fact does when there is no kohain involved, rather, the source for his liability is from another verse, because he, one who damages the kohain’s t’rumoh is comparable to one who steals from his neighbor and/or damages him. It is only for the kohain’s private ownership after the t’rumoh was given to him that a damager is liable for the principal.
Tosafot now reverts to questioning his original solution about the source for the exemption for damaging temple property; that the exemption for damaging the temple properties for all avos is derived from three sources, keren, a person who damages and bor.
However, according to the one who says (Bava Kamma 26a) that one is liable to pay kofer when his animal kills a person with its regel, the exemption for damaging temple property cannot apply to regel. One can refute the derivation by arguing how can you compare regel to keren, a person who damages and bor to learn that the leniency that they are not liable for damaging temple property applies to regel? Regel is not as lenient as they are. For if one kills a person through keren, personally or bor, one does not pay kofer for the first violation,6A person or a bor that kills does not pay kofer at all. Keren does pay kofer, but not for the first violation. They all share the same leniency that they do not pay kofer for the first violation. but regel does pay kofer for the first violation. The leniency of the others cannot be transferred to regel because we find that regel is more stringent than they are.
But according to R’ Tarfon who holds that a tam, first time violator, pays full kofer the derivation is sound.
Due top the complexity of this Tosafot, we will offer a general outline of the various steps of this Tosafot.
A) Tosafot asks that perhaps shain and regel are liable for damaging Temple property.
Tosafot shows that keren cannot be used as a source for exempting all the avos, either:
1) As a בנין אב,
2) Or via a גזירה שוה- common word derivation.
B) Tosafot shows from Yerushalmi and our Mishna that the exemption for damaging Temple property applies to all avos, and that the Gemara in Bava Metzia that indicates there is liability for the principal is only by Rabbinic law.
C) Tosafot concludes that the general exemption is derived from three avos: keren, a person and bor.
D) Tosafot asks how can shain (and perhaps regel) be derived from all three, it is more stringent.
E) Tosafot answers that ultimately a person should be more liable for his own damage than for the damage of his animal.
F) Once we know that a person is exempt for damaging Temple property, why do we need any other source?
G) Our understanding that there is total exemption even for the principal comes from the verse about keren.
H) The verse כי יאכל is discussing t’rumoh and there is liability for the principal when one destroys t’rumoh.
I) That liability is in effect only when dealing with the aspect of t’rumoh that is the property of the Kohain.
J) Regel has a stringent ruling that it is liable for kofer the first time it kills, which all of the sources do not have.
K) R’ Tarfon holds that keren also pays kofer the first time.
Ask RabbiBookmarkShareCopy