A cow that damaged a garment, and a garment that damaged a cow. Rashi explained: That they damaged each other. The cow trampled the garment in the courtyard of the nizok and is liable for regel. The cow tripped on the garment and broke a leg in a public domain. The garment is a bor and its owner is liable for damages to the cow. The Braita is teaching us: We evaluate the damage in currency and whoever did the greater damage must pay the difference. Tosafot understands that Rashi is speaking specifically about a case where the cow and the garment damaged each other simultaneously and the Braita is teaching us that the two damages do not cancel each other out. We must evaluate each damage individually and whoever damaged more is liable to pay the difference. This explanation presumes that the damage was simultaneous, which means that this story happened in one domain. Tosafot will show that it is impossible that the damages occurred in the same place, because the primary damagers that are involved in this case, regel and bor, are not liable in the same area. This is difficult, because you are compelled to say that the cow that damaged a garment occurred in the courtyard of the nizok and the damage was either with intent to damage and it is keren or as it walked and it is regel and the garment that damaged a cow must be in a public domain, because the liability is because of bor, which is liable only in a public domain. It cannot be speaking of a bor in a private domain, because the cow has no business being there. For it is impossible to also set up the case of the cow damaging the garment in a public domain and the liability would be because of keren, which is also liable in a public domain, for if it was so, that the garment was left in a public domain, the cow owner would be exempt for any damage to the garment, as the Gemara says later in the second Perek (20a), that whoever acts irregularly and another comes and acts irregularly against him, the second party, is exempt. Leaving a garment in a public domain is irregular because people can trip on it. When the cow then comes and damages that garment his owner is exempt. Thus, we are in a quandary, the cow can be liable for damaging the garment by keren or regel only in a private area and the garment can be liable for damaging the cow only in a public domain. This is an inherent difficulty with Rashi’s explanation. Tosafot attempts constructing another scenario to accommodate Rashi’s explanation: And even if we should explain that it so happened, that a cow damaged a garment in a courtyard of the nizok, and that garment then damaged the cow in a public domain, where bor is liable, thus, we have a situation where the cow and the garment are mutually liable even though the damages did not occur at the same time and place. The Braita would then be teaching us that the two damages do not cancel each other out. The difficulty with Rashi’s explanation still remains, because this rule, that the damages do not cancel out each other is already taught in a Mishna later in Perek HaMainee’ach (33a): If two tam oxen injured each other they pay for the excess half damages, if both are muad they pay for the excess full damages. It is clear that the damages do not cancel out each other and that each one is evaluated and the payment is the difference, which is what Rashi says this phrase in the Mishna שום כסף is coming to teach us. Why must the Mishna here teach us this ruling when it is clearly stated in the Mishna on 33a? This question per se is not a major difficulty: And one can answer: That the Mishna first teaches us about this rule in a concise manner and later in Hamainee’ach 33a, explains it in greater detail. Although Tosafot found a defense of Rashi’s explanation, he presents Rabbeinu Tam’s explanation. Rashi’s explanation is centered on the idea of mutual liability. Rabbeinu Tam holds that this is not the issue at all. Rabbeinu Tam explains: That the statement “a cow damaged a garment and a garment damaged a cow” is not one occurrence, rather, it is two different happenings, and the Braita is to be understood as saying either a cow damaged a garment or a garment damaged a cow, is what the Mishna is teaching us. Rabbeinu Tam offers support for his explanation that the Braita is not speaking of one occurrence despite the use of what appears to be a connecting 'ו'. The Mishna in Y’vomos is discussing the various procedures that a yovom, the brother of a man who died childless, may have done to his y’vomoh, his widowed sister-in-law. It is clear in that Mishna that even though each procedure enumerated is connected with a ‘ו’, they are individual procedures that the yovom did. as in the Mishna in Y’vomos (50a): he first performed chalitzoh, and then he either performed maamar or gave her a get etc. It is evident that the Mishna is using the ‘ו’ of ונתן not as a connector, but rather in place of “or”. So too, in this Braita the ‘ו’of וטלית is in place of “or” and not a connector. Rabbeinu Tam holds that the stories in the Braita are not one occurrence, but two separate stories. But what is the Braita attempting to teach us? And the case of a garment damaging a cow does not come to teach us that we do not say: that the cow owner should take the entire garment because of the damage that was done to the cow, for the garment is a bor and does not pay from its body. This idea might be conceivable when the damager is a tam ox, whose payment is taken from its body, but this is totally inappropriate when discussing damage done by the garment which is bor, where payment is made from general assets of the owner. There is no reason to believe that the garment should be taken as payment. Furthermore, this too, that damages are not arbitrarily taken from the body of the damager without evaluation, can also be understood from the Mishna in Hamainee’ach that says that even when the damagers are tam oxen that do pay from their bodies, the damages must be evaluated and the greater damager pays only half the difference. Rather, says Rabbeinu Tam, that we do not say the cow should go to the garment owner as payment for the garment, comes to inform us that we rule not like R’ Akiva, who says later in Hamainee’ach (33a): that when a tam ox damages, ownership of the ox is automatically transferred to the victim ’s owner. Rather, the damaging tam ox is assessed by the court and then its owner can pay cash or the body, as is the opinion of R’ Yishmo’ail, and it, the Braita that discusses an ox that damaged a garment is speaking of when it damaged by keren. And that that the garment should not go as payment for the cow, comes to inform us that the garment cannot be collected even from the heirs of the garment owner, if he dies before he paid. For one should not think that one can collect the garment itself as payment even after the death of the garment owner, even though movable objects of heirs are usually not subject to a lien to be collected for their father’s debts, as his real property is. Because one might think that that which the Torah said that payment to the damages victim is to be taken from the general assets of the damager and not from the body of the damager, such as the garment, is in order to improve the strength of the victim, so that if the damager, such as the garment, is not worth the amount of the damages, he, the victim, is paid from the general assets and cannot be reduced to accepting only the value of the garment, but in regard to one who must collect from heirs, where if he is to be paid from the general assets, it is to the detriment of the victim, because the movable objects of heirs are not subject to any lien and cannot be collected for their father’s debt, however, if he, the victim, is to be paid from the body of the damager, which in this case is the garment itself, he will collect even from heirs, because it is as if he seized them when the garment owner was still alive, since the Torah designates the garment to be used as payment for the damages, and I might think that in this case, where it is to the advantage of the victim, he is paid from the body of the damager, the garment. The Braita needs to teach us that even in this case the bor victim is not paid from the body of the damager and must take a loss. Due to the difficulty of finding a situation where there would be liability for the cow that damaged a garment and for a garment that damaged a cow, there are those who emended the text. Rabbeinu Tam rejects this amendment. And we should not emend the text to read: a cow that damaged a sheep, which would solve the problem of finding a domain where they are liable, because the damage would be keren and both the cow and sheep are liable in the same domain, either a public domain or a jointly owned courtyard. For if it was so, that the Braita is discussing two animals that are damaging each other by keren, the Braita should teach us: oxen that wounded each other, as the Mishna does later in Hamainee’ach (33a). When a Mishna already discusses this situation using the case of two oxen, a Braita that wants to clarify should use the same illustration. It is usual for the Talmud to mention a cow and a garment, as the Gemara says (below 94b): Their father left them, as an inheritance a cow and a garment.
Something that is worth any [amount of] money — The Mishna refers to land as ‘[something] worth money’, because any parcel of land is worth any amount of money. The Gemara explains that the laws of price fraud do not apply to land and no matter how much one overcharges the sale is valid. Land is therefore referred to as something that is worth any amount of money. Tosafot says that this statement is not to be taken literally, because there is a point where even a land sale is invalid. This is imprecise, for if the difference is greater than a half, i.e. the seller charged two hundred one dollars for land that is worth one hundred, there is price fraud as can be understood in Perek HaZohov (Bava Metzia 57a). Rather, the meaning is that land is worth so much more money than movable objects. For movable objects the sale is invalidated if the seller overcharged more than a sixth, whereas for land the sale is invalidated only if he overcharged more than a half.
Slaves and documents are also acquired with money — The Gemara suggests that land is described as ‘[something] that is worth money’, because it can be acquired by money. When one pays cash for land, ownership is transferred to him and he need not perform any other acquisitory act, whereas when purchasing movable objects, paying cash must be followed by some other kinyon. The Gemara argues: slaves and documents are also acquired by cash. How can this be used as a description of land? When the Gemara asks: but slaves are also acquired with cash? We do not have the text that includes documents in the Gemara’s question, because documents cannot be acquired with cash. Rather, they can be acquired with handing over the documents from seller to buyer, and with writing a document stating that the documents have been sold to the buyer. ואפילו בחליפין נמי צ"ע And even by the kinyon of exchanging, which is a general kinyon, used for both movable objects and land, intense study is required to determine if it is effective for documents. Rashi was aware of the text that includes documents in the Gemara’s question: Rashi commented that it has not been clarified where it is stated that documents can be acquired with cash.
With orphans — The ruling of our Mishna that damages are to be collected only from land is speaking specifically when payment is to be collected from the damager’s heirs. When collecting from the damager himself, even movable objects can be collected. Tosafot wonders why even land can be collected from the damager’s heirs. For a greater understanding of the issues involved, review Tosafot 11b, ד"ה כגון. If you ask: According to Rav and Shmuel who hold in Perek Get Poshut (Bava Batra, 175a) that a lien on one’s property is not Torah law, rather, a Rabbinic enactment to establish security for potential lenders, and therefore an undocumented loan cannot be collected from the borrower’s heirs, because the enactment is in effect only where the purchaser of the property should have been aware that the seller was in debt. A documented loan becomes public knowledge because of all the people involved, i.e. the scribe and witnesses. In the case of an undocumented loan, the buyer of the property has no way of discovering that the seller is in debt and should not be penalized for buying the property. (See Tosafot earlier who explain why the heirs are treated the same as buyers.) Payment owed for damages is comparable to an undocumented loan, and if so, the courts should not get involved with collecting damages from the heirs of the damager even when they inherit real property. Since the level of publicity for damages is less than for a documented loan. One can answer: that this Mishna is speaking of when they stood in court while the damager was still alive. The court trial establishes sufficient publicity for the purchaser to be well aware that the seller is in debt and the land can be collected from him. As explained earlier, the same applies for the heirs.
It is evident from this; one who borrowed and then sold, etc — The Gemara understands that the simple explanation of the words בפני בית דין in our Mishna, mean that one must be in possession of his land in order for the court to collect damages from that land. If one first damages and then sells the land before his court appearance, the court will not collect the damages from the sold property. The Gemara asks: are we to understand from this ruling that if one borrows and then sells his land; will the courts not collect the debt from the sold property? The thrust of the Gemara’s question is to say: that this is definitely not so and the courts will unquestionably collect the debt from the sold property. Tosafot is not sure about the exact circumstance where the Gemara’s question would be compelling, and he analyzes the various possibilities. Rashi explained that when the Gemara asks: “Are we to understand that when one borrows and sells his property the courts will not collect the debt from that property?” there is a implied conclusion to that question: but it is well-known to us that the lender can come and collect from those sold properties? Tosafot will now analyze the possible circumstances where this question would be valid. There are three issues that might affect the Gemara’s question: a) A documented loan can be collected from sold property. b) An undocumented loan cannot be collected fro sold property. c) The status of damages: are they like a documented or an undocumented loan? This is bewildering! Does the Gemara consider damages like a documented loan? If the Gemara assumes that liability for damages is similar to a documented loan and we are certain that a documented loan can be collected from sold property, the Gemara should not have said “are we to understand etc. [that when one borrows and sells his property, the debt cannot be collected from sold properties]?” This phrase implies that we do not have a Mishna or Braita that clearly states the ruling in this case. Rather, the Gemara should have asked: but we learned in a Mishna that one, who lends to his associate with a document, collects from sold property. This ruling is clearly stated in the Mishna and should be quoted as the basis for the Gemara’s question. If the Gemara is certain that damages are like a documented loan, the Gemara only needs to prove that a documented loan is collectible from sold property. The Mishna should have been quoted to prove this point. Perhaps the Gemara considers damages like an undocumented loan? And if the Gemara equates damages to an undocumented loan, if so, why is the Gemara saying: “are we to understand from our Mishna that when somebody borrows and then sells his property, the courts do not collect the debt from them, the sold properties?”, which implies that the court should collect from such sold properties, but it is crystal-clear that the courts do not collect from sold properties when the debt is undocumented, for we have learned in a Mishna: one who lends his associate with witnesses only, and does not write a document, he collects from unsold property, but not from sold property. The ruling of our Mishna that in a case of damages which is comparable to an undocumented loan, one does not collect from sold properties, is perfectly correct. What is the Gemara’s asking? Perhaps the issue is the status of damages? Are they comparable to a documented or undocumented loan? And if this is the very point the Gemara is deducing, when it asks: are we to understand that when one damages and sells his property, the courts do not collect from them, the sold property, and the obligation to pay damages is comparable to an undocumented loan, even though the responsibility to pay damages is a loan (obligation) that is written in the Torah, the Torah expresses this obligation many times. The thrust of the Gemara’s question is: וקשה למ"ד בפ"ק דערכין (דף ו:) דמלוה הכתובה בתורה ככתובה בשטר דמיא that this understanding of our Mishna would then present a difficulty to the one who says in the first Perek of Arochin (6b) that a loan (obligation) that is written in the Torah is comparable to a loan that is written in a document and is collectible from sold property. The Gemara is proving that if one sold his property after he damaged and before his court appearance, our Mishna which says that the damages cannot be collected from sold property is a contradiction to the one who holds that a loan (obligation) written in the Torah is equivalent to a documented loan and can be collected from sold property. Tosafot finds this explanation of the Gemara’s question unacceptable: If so, that the Gemara is presenting a difficulty to the opinion that holds that a loan written in the Torah is comparable to a loan written in a document and is collectible from sold property, why does the Gemara use the phrase: “one who borrowed and sold his property”, which is an euphemism used to illustrate the point that the sold property of the damager would be uncollectible even though the obligation is written in the torah, the Gemara should have simply said: are we to understand that a loan (obligation) that is written in the Torah is not as if it is written in a document and uncollectible from sold property? The fact that the Gemara does not use this phrase, which is used often throughout the Talmud, is proof that this is not the point of contention. Rabbeinu Tam presents his explanation of the Gemara’s question: מפרש ר"ת ש"מ לוה ומכר נכסיו אין ב"ד גובין לו מהם מן התורה דשיעבודא לאו דאורייתא Rabbeinu Tam explains that the Gemara is asking: Are we to understand that when one borrowed and sold his property, the court does not collect for him, the lender, from them, the sold property, by Torah law, because a lien on the property of a person in debt is not Torah law? According to those who hold that a lien is not Torah law, it was enacted by the Rabbis to insure lenders that their loans would be paid, otherwise they would never lend money to people in need. And it is for this reason that for damages one can also not collect from sold property. The reason that the Rabbis enacted a lien to collect from sold property applies to loans but not to debts for damages. It is specifically for a documented loan that the Sages instituted the rule that one can collect from sold property, because otherwise the lenders would be totally unprotected and the doors would be locked in the face of borrowers. The Rabbinical enacted lien protects the lenders and they can now give loans. But in regard to debts for damages there is no need to establish a lien, because one does not voluntarily become a victim of damages. There is no need to protect the victim who is owed money, because otherwise he will not consent to being a victim. The position of damages victim is not a voluntary one. Tosafot needs to explain why this approach is only viable according to the one who holds that a lien is not Torah law. For if a lien is Torah law, and the reason that an undocumented loan is not collectible from sold property is Rabbinic, instituted to protect the purchasers who have no way of knowing that the seller is in debt and that there is a lien on the property they are purchasing, If so, we have a difficulty, here, when a person damages and then sells his property, why do we not collect damages from sold property? We cannot answer that the Sages wanted to protect the purchasers, because here there is no need to institute a law to protect the purchasers. But why is it that a purchaser from a debtor whose loan is undocumented needs protection and a purchaser from one in debt for damaging does not need protection? And one who purchases from a debtor who owes for damages is not comparable to one who purchases from a debtor who owes for an undocumented loan, because there, in the case of the undocumented loan, one who borrows, borrows privately, he makes a conscious effort to not to publicize the fact that he is in debt. He does not want to ruin his credit worthiness. One who purchases his property can usually not discover that the seller is in debt and he therefore needs the protection of the Sages. But one who damages is not careful to avoid publicity, he did not choose the time and place that his ox might damage and there is public knowledge that he owes money for damaging. Whoever purchased his property had ample means of discovering that the seller was in debt and there is no need for the Sages to enact a law to protect him. Since there is no need to enact a law to protect one who buys from a debtor/damager, why don’t we collect from sold property? It must be that there is no lien by Torah law and there is no need to enact a special law that we should collect for a damages victim from sold property, and this is a difficulty to the one who says that there is a lien by Torah law in Perek Get Poshut (Bava Batra 175b). This is what the Gemara means to ask when it says: “Are we to understand that when one borrows and sells, the courts will not collect from the sold property?” It presents a difficulty to the one who holds that there is no lien by Torah law.
[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. 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.
But according to the one who says — [regarding] one who admits [he is liable to pay] a fine and then witnesses come afterward [and testify that he is] liable [to pay], what is there to say? When a person commits a violation that is punishable by a fine, i.e. seducing a young girl, if he confesses to the crime he is exempt from the fine of fifty sh’kolim. The Gemara 64b derives this from the verse in Shemot 22, 5, liability must be established by the court and not by the transgressor. There is a second step to this ruling. The transgressor confesses and the witnesses arrive to testify that he committed the crime. The court can establish his liability independently, but he has already confessed! The Gemara here says that the words in the Mishna על פי עדים" – by the testimony of witnesses” come to teach us that if one confesses to a violation that is punishable by a fine and then witnesses testify that he is guilty, even though we now know of his guilt without his confession he remains exempt. This is actually the subject of a dispute later on 74b, and the Gemara asks: this is logical according to the one who holds that one who confesses to a fine and the witnesses come is exempt, but what about the opposing opinion who holds that if witnesses come and testify even after the confession he is liable, what are these words על פי" עדים– by the testimony of witnesses” teaching us? It seems that there is nothing of a novelty that the Mishna can be teaching us about one who confesses to violation punishable by a fine. But what about the initial rule that one who confesses to a fine is exempt? isn't that initial rule sufficient novelty? Why doesn't our Gemara say that our Mishna is teaching us that one who confesses to a violation that is punishable by a fine is exempt? Tosafot explains: To teach us that one who confesses to violating a sin that is punishable by a fine and witnesses do not come at all is exempt, it is not necessary for our Mishna to use the superfluous words על פי עדים. For it is clearly stated in a Mishna in Perek M’ruboh (below 74b): that in cases involving fines, one is exempt if he confesses. Sometimes the Gemara says in similar cases that the Mishna first mentions the ruling here and elaborates upon it later. Perhaps this too is such a case? for it is not reasonable to say that the Mishna first taught the rule and then later clarifies it, because the Mishna there is not any lengthier than the Mishna here.
