פירוש על בבא קמא 28:19
Tosafot on Bava Kamma
[That] excludes a court of non-ordained judges. The Gemara concludes that when the Mishna says בפני בית דין, it is telling us that the court must consist of judges who have s’meechoh, as opposed to a court of common judges who do not have s’meechoh. See Artscroll note 23.
S’meechoh is required for cases dealing with fines and penalties. The rule of thumb is that when the Torah requires one to pay more (such as double for stealing) or less than he damaged (such as half payment for a tam that damages), or a fixed sum for a violation (such as fifty sh’kolim for a seducer), that is a fine.
When one pays the amount that he stole or damaged, that is restitution for what he did and that is not a fine. Such cases may be judged even by those who do not have s’meechoh, as long as they are well versed in the laws.
When the Gemara concludes that our Mishna is excluding a court of non-s’meechoh judges, it appears that the Mishna is discussing cases that deal with fines. We must see if our Mishna is discussing cases that are fines or regular financial matters.
Rashi explained: That the exclusion of non-s’meechoh judges is relevant to laws of fines, because it is only for such cases that s’meechoh is required. For regular cases of monetary matters non-s’meechoh judges are acceptable as long as they are well versed ikn the laws.
But is our Mishna speaking about fines?
And even though our Mishna is not speaking about fines according to the one who says that the Mishna taught shor to inform us of regel and maveh to inform us of shain.1See 4a, where this position is discussed. 2Tosafot is clearly saying that according to the disputant who holds that shor includes all three forms of shor, keren, shain and regel, there is no problem. The commentators are puzzled with this. It seems that Tosafot is saying that if keren is mentioned in our Mishna there is no problem, because a tam shor is a fine because he pays less than he damaged. Maharam Schiff has severe problems with this approach. A) Even if our Mishna is discussing keren, it is discussing a muad, because our Mishna clearly says that payment is to be made from the finest land and that is only true of keren that is a muad. B) There is an opinion that even keren tam is not a fine. C) Even the one who holds that shor in our Mishna is referring to regel, admits that keren is alluded to later when the Mishna says “כשהזיק חב המזיק - when he damages the damager is liable to pay”. If so according to all opinions keren is mentioned in the Mishna. If the keren of our Mishna is a fine then all should agree that the Mishna is discussing at least one damager that is a fine. Maharam Schiff suggests that Tosafot means something entirely different. According to the one who holds that shor includes keren, shain and regel, maveh refers to a person. There are many damages that a person does that are in the category fines; for example a seducer, a rapist and a slanderer are all fines. Thus within maveh there are many primary damagers that are categorized as fines that the Mishna is discussing. Shain and regel are not fines, because they pay exactly what they damaged. The same is true of bor and aish.
Even so the Tano alludes to us in the Mishna rulings, even about matters that he does not speak about in the beginning of the Mishna. Fines are not specifically discussed in the Mishna and even so the Tano teaches us a ruling about the requirement of judges that have s’meechoh for cases that involve fines.
Shouldn’t this be viewed as a difficulty with Rashi’s explanation?
For so too, the Gemara will soon explains the words “על פי עדים- by the testimony of witnesses” to exclude from liability one who confesses to a fine and then witnesses arrive who testify that he committed the violation. The Mishna is ruling that since he confessed before the witnesses arrived he is exempt. Obviously, this ruling is clearly relevant only to fines and even so the Mishna discusses it. We see that even though cases of fines are not mentioned in the earlier part of the Mishna, the Mishna here on 14b does allude to rulings about how the court must deal with cases of fines. Since it is clear from the Gemara that end of the Mishna is discussing fines there is no difficulty with Rashi’s explanation that the previous statement of the Mishna is also discussing fines.
S’meechoh is required for cases dealing with fines and penalties. The rule of thumb is that when the Torah requires one to pay more (such as double for stealing) or less than he damaged (such as half payment for a tam that damages), or a fixed sum for a violation (such as fifty sh’kolim for a seducer), that is a fine.
When one pays the amount that he stole or damaged, that is restitution for what he did and that is not a fine. Such cases may be judged even by those who do not have s’meechoh, as long as they are well versed in the laws.
When the Gemara concludes that our Mishna is excluding a court of non-s’meechoh judges, it appears that the Mishna is discussing cases that deal with fines. We must see if our Mishna is discussing cases that are fines or regular financial matters.
Rashi explained: That the exclusion of non-s’meechoh judges is relevant to laws of fines, because it is only for such cases that s’meechoh is required. For regular cases of monetary matters non-s’meechoh judges are acceptable as long as they are well versed ikn the laws.
But is our Mishna speaking about fines?
And even though our Mishna is not speaking about fines according to the one who says that the Mishna taught shor to inform us of regel and maveh to inform us of shain.1See 4a, where this position is discussed. 2Tosafot is clearly saying that according to the disputant who holds that shor includes all three forms of shor, keren, shain and regel, there is no problem. The commentators are puzzled with this. It seems that Tosafot is saying that if keren is mentioned in our Mishna there is no problem, because a tam shor is a fine because he pays less than he damaged. Maharam Schiff has severe problems with this approach. A) Even if our Mishna is discussing keren, it is discussing a muad, because our Mishna clearly says that payment is to be made from the finest land and that is only true of keren that is a muad. B) There is an opinion that even keren tam is not a fine. C) Even the one who holds that shor in our Mishna is referring to regel, admits that keren is alluded to later when the Mishna says “כשהזיק חב המזיק - when he damages the damager is liable to pay”. If so according to all opinions keren is mentioned in the Mishna. If the keren of our Mishna is a fine then all should agree that the Mishna is discussing at least one damager that is a fine. Maharam Schiff suggests that Tosafot means something entirely different. According to the one who holds that shor includes keren, shain and regel, maveh refers to a person. There are many damages that a person does that are in the category fines; for example a seducer, a rapist and a slanderer are all fines. Thus within maveh there are many primary damagers that are categorized as fines that the Mishna is discussing. Shain and regel are not fines, because they pay exactly what they damaged. The same is true of bor and aish.
Even so the Tano alludes to us in the Mishna rulings, even about matters that he does not speak about in the beginning of the Mishna. Fines are not specifically discussed in the Mishna and even so the Tano teaches us a ruling about the requirement of judges that have s’meechoh for cases that involve fines.
Shouldn’t this be viewed as a difficulty with Rashi’s explanation?
For so too, the Gemara will soon explains the words “על פי עדים- by the testimony of witnesses” to exclude from liability one who confesses to a fine and then witnesses arrive who testify that he committed the violation. The Mishna is ruling that since he confessed before the witnesses arrived he is exempt. Obviously, this ruling is clearly relevant only to fines and even so the Mishna discusses it. We see that even though cases of fines are not mentioned in the earlier part of the Mishna, the Mishna here on 14b does allude to rulings about how the court must deal with cases of fines. Since it is clear from the Gemara that end of the Mishna is discussing fines there is no difficulty with Rashi’s explanation that the previous statement of the Mishna is also discussing fines.
Ask RabbiBookmarkShareCopy