Bava Kamma 3a

Where the object is not completely destroyed - Tosafot is searching for an example of non-total destruction. Rashi explained: that the case of not totally destroying the object is speaking of an instance where the animal ate some of the early growth of the produce, which will grow back, but it will not be as fine a quality as it would have originally been, had the animal not eaten of the early growth. And this is difficult: For what the animal ate actually is totally destroyed, for the owners could have reaped what the animal ate. To put Tosafot objection in a more understandable light: Let us imagine that an ordinary plant will grow to a height of twelve inches. The animal ate some of it as it was growing. He consumed three inches of the growth. The plant will now only reach a height of eleven inches. The landowner could have taken those three inches himself and used them for animal fodder. Tosafot sees the eating of those three inches as total destruction of those three inches. They could have been taken by the landowner and they are no longer here. That the plant will continue to grow does not diminish the fact that those three inches are no longer in existence. Rather, one should say that the case of non-total destruction is when the animal soiled produce for its enjoyment. See Rashi & R’ Akiva Eiger. Sometimes an animal rolls in fruit as a way of frolicking or to scratch its hide. This reduces the value of the produce, but what is missing is not something that the owner could have removed and benefited from before the animal soiled the produce. This definition of non-total destruction presents another problem. What emerges from Tosafot is that any situation that the animal ate produce would be one of total destruction. The only situation of non-total destruction is when the animal soils the produce as a source of enjoyment. Since the Gemara has a special verse to include non-total destruction, we must say that soiling the produce is spoken of in the Torah. If so, why is that not considered an av in its own right? Tosafot addresses this problem: Even so, that the Torah speaks of non-total destruction, which can only mean the animal soiling produce for its enjoyment, the Gemara later refers to soiling the produce for its enjoyment as a toldoh, because the simple meaning of the verse that speaks of shain, is discussing eating, which totally destroys.

And where the object is completely destroyed - The Gemara answered that if we did not have any indication that ושלח refers to regel we would say that both ושלח and ובער refer to shain. One verse is discussing shain that totally destroys and one verse is discussing shain which does not totally destroy. It is fairly obvious that shain which totally destroys is more likely to be liable. Therefore Tosafot asks: And if you ask: Let the Torah write, ושלח, ושלח which refers to non-total destruction, and it would not have to write ובער, which refers to total destruction? Once we know that one is liable for non-total destruction, then by kal v’chomer we understand that he is liable for total destruction. And one can answer: Had the Torah used the word ושלח to teach us that shain is liable, we would say that one is only liable if the animal was sent by its owner and not if it went on its own, as the Gemara says later.

[It is] similar to trampling - The Gemara asked: Now that we have come to the conclusion that ושלח refers to regel and ובער refers to shain, how do we know that shain, which is not totally destructive is liable? The Gemara answered that we know this because the Torah has compared shain to regel, since they are both in the same verse and just as regel is liable for non-totally destructive damage, because regel is inherently non-totally destructive, so too, shain is liable for non-totally destructive shain. And if you will ask: Let us say the reverse, that just as shain is liable only for totally destructive shain, so to, regel should only be liable for totally destructive regel? For that which we usually say when faced with the choice of making a comparison which will result in a stringent ruling or a lenient ruling, that we choose the stringent ruling, that is only in matters pertaining to the violation of prohibitions, but not in financial matters. Tosafot assumes in his question that choosing the stringent side is only in order when dealing with prohibitions of the Torah not with financial matters. In his answer we will discover that this is not so: And Rabbeinu Tam said: That this, choosing the stringent side, is a method of the Torah, there is no difference whether we are dealing with matters of prohibitions or financial matters.

“And the teeth of animals I will send forth against them.” (Deuteronomy 32:24) Generally the word בהמה refers to domesticated animals, such as cattle and sheep. חיה refers to non domesticated animals, such as lions and bears. We have learned that the av of shain is when an animal destroys my neighbor’s crops by eating them. That is described by the Gemara as: A) There is no intent on the Animal’s part to be harmful. B) It is enjoying and benefiting from the damage. Tosafot will now point out that the shain that the Torah speaks of in Parashat Haazinu, is speaking of a different form of shain, where the animal does have intent to harm and has no benefit from the damage it does. If so, how can the Gemara say that the shain of eating can be derived from the verse “and the tooth of animals I will send against them?” Even though we say elsewhere, (sifrai Parashat Haazinu) that the animals referred to in this verse will be domesticated animals, that have poison like a snake, that will bite and kill, which is biting - a toldoh of keren. This is not the av of shain that the Gemara is discussing, where the animal eats for its pleasure, not to harm its victim. Why does the Gemara say that the ושלח refers to shain as can be seen from the verse in Haazinu, which is speaking about shain that is a toldoh of keren and not ordinary shain? Even so, the verse is also speaking about wild animals, that pounce on their prey and eat the prey to satisfy their hunger, which is a toldoh of shain, as the targum translates the verse, the tooth of בהמות, as the tooth of wild animals. This translation is correct; even though the verse is speaking about domesticated animals, because חיה is included in the word בהמה. As far as non-domesticated animals are concerned, when they attack humans in order to eat them, that is ordinary shain, since their intent is for their own benefit, their need for food. The verse in Haazinu is actually speaking of two types of shain, ordinary shain and shain which is a toldoh of keren. Since the posuk uses the word אשלח, we see that ושלח, which is of the same root, refers to ordinary shain as well as ‘biting’ which is a toldoh of keren.

It is necessary, [as it] could enter your mind to say [that] this matter applies only where he sent [it]. The Gemara conceded that both avos, shain and regel could be derived form the single phrase ושלח, however we would only know that one is liable if he sent his animal to destroy his neighbor’s field. The Torah therefore wrote ובער to tell us that even if the animal strays into a neighbor’s field and damages either by shain or regel, the animal owner is liable. This is a departure from the Braita’s original explanation of the verse that ושלח speaks of regel and ובער is discussing shain. Initially the Gemara asked why the verse “as the golol consumes” was cited, we could have arrived at the conclusion that ובער refers to shain by the process of elimination. The Gemara deflected that contention by saying that if we did not have the verse “as the golol consumes” to identify ובער as shain, we would conclude that ובער also refers to regel and it is teaching us that even when the animal strayed on its own into a neighbor’s field and was not sent there, its owner is liable. And if you ask: We should now ask, that which the Gemara asked earlier, when analyzing the Braita that cited the phrase “as the golol consumes” to prove that shain is an av: The reason that we know shain is an av is because the verse writes “as the golol consumes”, golol refers to tooth, so we see that the term “he will consume” refers to damage by tooth, otherwise we would not know that shain is an av. But if not for that verse, you would not know that ובער is referring to shain. But what would you say it, the verse, is about if not shain? This was the Gemara’s original question about this statement of the Braita. Now, the question surfaces once again. Since we now know that shain can be derived from ושלח, why did the Braita have to cite the verse “as the golol consumes” to prove that shain is an av. Earlier the Gemara answered that if we did not have the verse “as the golol consumes”, we would say that the phrase ובער is needed to teach us that even if the animal strayed on its own one is liable, and I would not know that shain is an av. That answer is no longer viable because now shain is not derived by the process of elimination, but by a positive teaching that ושלח refers to shain and ובער comes to teach us that even when an animal strays on its own into a neighbor’s field, its owner is liable. And now, that we have seen that ושלח can be a source for shain, we cannot answer as we did before, that without the verse “as the golol consumes” we would not be able to derive shain. It definitely can be derived from ושלח. That answer was viable when we were asking that without any verse to teach us that ובער refers to shain we would have to come to that conclusion by the process of elimination, but now that we have a positive source from which to learn that shain is an av we must once again ask the question, why did the Braita cite the verse “as the golol consumes”? Tosafot says: We must now take a different view of the Braita. Our original way of understanding the Braita is that the Braita means, that this method of expounding the verses involved is the only way that we might arrive at the proper conclusion, that there are two avos, regel and shain. Tosafot now suggests, that perhaps the Braita, does not mean that at all: And one can answer: That the Braita is saying as follows: That if the verse had not written ושלח, from which we now see that we can derive both shain and regel, we would have learned that shain is an av from the verse “as the golol consumes”. The Braita is only saying that this is one possible way of learning that shain is an av. It is not saying that there is no other possible way to derive shain. One may wonder is this an acceptable way of explaining a Braita? Tosafot finds a precedent: And we find that the Gemara uses this type on solution to solve the difficulty of understanding a Braita, at the beginning of perek Aizehu Neshech (Bovo M’tzeeo 61a).

Neither ten nor nine are written - The Gemara stated that on the surface it appears that there is no mention, whatsoever, of a distinction between, a ten tefachim bor and a nine tefachim bor. Rashi on 50b in his explanation of the Mishna there says that usually a bor is ten tefachim deep. Tosafot feels that this contradicts our Gemara which says that a bor of ten tefachim is not mentioned in the Torah. If a bor is usually ten tefachim deep, when the Torah speaks of a bor it is speaking of the usual bor which is ten tefachim deep. Tosafot will now present three difficulties with Rashi’s explanation. The first: This is bewildering: For in Chapter Haporoh (50b) we are taught by the Mishna, “just as a borhas sufficient depth to kill, which is ten tefachim etc.”, and Rashi explains that the Mishna knows that a bor has ten tefachim, because an ordinary bor is ten tefachim deep. If so, that Rashi is correct and an ordinary bor is ten tefachim deep, then when the Torah speaks of a bor, it is as if a bor of ten tefachim is written in the Torah. How can our Gemara say that ten tefachim is not written in the Torah? The second difficulty: Another difficulty with Rashi’s explanation, is that here, the Gemara expounds from the verse “and the corpse shall belong to him” to prove that the bor that the posuk is discussing is ten tefachim and according to Rashi, this is not necessary, the use of the word bor inherently means that it is ten tefachim deep. The third difficulty: And yet another difficulty with Rashi’s explanation is that the Gemara will soon ask that ultimately this, a ten tefachim bor, is an av for liability if there is a death and that, a nine tefachim bor, is an av for liability if there are damages? and Rashi explains that when the Torah describes the events that happen in a bor it uses the phrase “and there will fall into the bor” which implies that it caused either death or damages, and therefore both are avos. If so, that both are avos, because they appear jointly in the verse, then when the Gemara expounds from the verse “shor” that one is liable only causing the death of an ox but not for a person, that exclusion should apply equally to everything that is alluded to in the posuk and should exclude liability for a person damaged by the bor, just as one is excluded if a person is the victim killed by the bor. Since we are saying that “there will fall into the bor” is referring to damages as well as to being killed; then the exclusion of a person as a victim should apply to both avos that are mentioned in the posuk. The Gemara, however, (28b) says that the exclusion of a person who is a victim of the bor is limited to one who suffers death, and does not apply to a victim who suffers damages. Tosafot suggests an entirely different explanation of the Gemara, in order to avoid the problems he has with Rashi’s explanation. Therefore, it appears that the explanation is that an ordinary bor is very deep, and in order to define the properties of a bor it is necessary for the Torah to use both terms, bor and “the corpse will belong to him”. By balancing the implications of these two terms we will arrive at the definition of the Torah’s bor for which one is liable. For had the Torah not written bor and the only source for defining the bor would be “and the corpse shall be his”, I would say that one is liable for whatever kills, even if the bor was not deep enough to kill. This requires some explanation. Why should one be liable for the death of an animal if the bor cannot cause death? The expression, ten tefachim are sufficient to kill, means that an average animal will die after such a fall. If an animal dies in a shallower bor, he must have been of less than average health and therefore died as a result of a minor fall. If we had no indication otherwise, we would say that one is liable even for the death of a weaker animal. After all, one has no business digging a bor in a public domain at all and could conceivably be held responsible for the death of an animal of less than average health. The Torah therefore, added the word bor as part of the definition, to tell us that since a bor always has sufficient depth to kill an average animal, one’s liability is only for an average animal, and if the bor is less than ten tefachim the bor digger is not liable. Now, that we see that bor per se would mean that the bor has sufficient depth to kill, we must ask, why was it necessary to include “and the corpse will be his” in the description. And if the Torah only wrote bor, I would say that the liability of bor is limited to a round pit, and not to a square or rectangular pit. If that were true it would be a decree of the Torah, because there is no logical reason to exclude a square or rectangular pit, but since the word bor does specifically refer to a round pit we would say that liability is limited to a round pit. The Torah therefore wrote a second phrase with which to define bor, “and the corpse will be his” to inform us that even if death is caused by a square or rectangular pit one is liable. And that is why both terms defining bor, are necessary. According to this explanation of Tosafot the first two difficulties he had with Rashi’s explanation no longer present a problem. An ordinary bor is not ten tefachim deep, so it cannot be said that a ten tefachim bor is written in the Torah. The Gemara here says that ten tefachim is derived from because it cannot be derived from the word bor alone. Tosafot will now explain why the third difficulty that he had with Rashi’s explanation is not a problem according to his own explanation: And this is the Gemara’s question: neither a nine tefachim bor nor a ten tefachim bor are explicitly written, how can you differentiate between them, declaring that one is an av and the other is a toldoh? The Gemara then answered that a ten tefachim bor is mentioned, because that is indicated by “the corpse will be his”. Despite the truth of this statement that a ten tefachim bor is mentioned in the Torah, the Gemara argues that both are avos: The Gemara then concludes that ultimately this one, a ten tefachim bor, is an av for death, and this one, a nine tefachim bor, is an av for damaging. The Gemara is departing from its previously held position that if one is mentioned in the verse, only that one should be the av. This departure requires some explanation. The explanation is as follows: Since the ten tefachim bor is not explicitly mentioned in the verse, rather, it is derived from logic based on the verse “and the corpse will be his”, which shows that we require a bor that has sufficient depth to kill, and it was known to the Rabonon that this is a bor of ten tefachim. If so, that the derivation is based on logic, then as far as a nine tefachim bor as well, it is logical that it is an av for damages, since it has sufficient depth to cause damage. Tosafot is bringing out that the nine tefachim av for damages is based on a logical argument, that there is no reason that it should not be an av for damages just as a ten tefachim bor is an av for killing, but it is not explicitly written in the posuk, as is the ten tefachim bor. Therefore the exclusion of a human victim is only applicable to what is actually written in the Torah, not what is derived from logical reasoning. However, we do not exclude a human victim, from being entitled to payment for damages, as a human victim’s heirs are excluded from receiving payment in the event that he is killed, because the verse “and there will fall into the bor an ox” is speaking only about a ten tefachim bor. The ruling, arrived at by logic based on what is written in the posuk, is not as if it is written in the posuk. The exclusion of a human victim, therefore only applies to what is actually written in the verse and not to the nine tefachim bor which is not actually written in the verse. Tosafot concludes that if the simple meaning of the verse would be referring to both a nine tefachim bor and a ten tefachim bor, as it is according to Rashi, the exclusion of “shor and not a person” would apply to both of the bor of death and the bor of damages. However, now that we are saying that the nine tefachim bor is not explicitly mentioned in the posuk but derived by a logical comparison, the exclusion of “shor and not a person” does not apply to that bor. Tosafot will now present a Yerushalmi that seems to contradict Tosafot explanation. And in the Yerushalmi the Gemara there expounds the verse as follows: he should have written: if a man will open, and if a man will dig a bor, why did the Torah write bor twice? The only possible reason is that, one bor comes to teach us that there is liability for death and one bor comes to teach us that there is liability for damage. According to this Yerushalmi, we have an inference that there is a bor for which one is liable for damages in the verse, the superfluous word בור. Since the bor of damages appears in the Torah, we revert to the question raised earlier by: why is the bor owner liable for damages to a person? The exclusion of shor and not a person, should apply to every bor mentioned in the Torah. and even so, we do not exclude a person from being the victim of damages, because the verse “and he will fall” doesn't exclude being the victim of damages, only that which is written in the verse explicitly, which is a bor that is ten tefachim deep, and exclusion does not apply to that which is learned from the superfluous word in the verse. In conclusion, Tosafot is saying that even if there is some hint in the Torah to a nine tefachim bor, the exclusion of “shor and not a person” does not apply to it. It only applies to that which is openly written in the Torah. This is not an adequate defense of Rashi’s position, because according to Rashi the words literally mean that either death or damages occurred. The reference to a nine tefachim bor is explicit and the exclusion of “shor and not a person” should apply.

Whether according to Rav or to Shmuel, these are [a subcategory of] pit. As we proceed in the Gemara we will learn of many different opinions about the liability of a bor. We must keep in mind that the bor in a public domain never becomes the actual property of the digger. We must also keep in mind that the actual concussion is caused by the earth, referred to as, the ground of the world. If so why are we so sure that the bor digger is liable? All of these aspects of bor, are addressed in the Gemara. At this point we will limit our discussion to the Gemara that Tosafot cited. The Gemara has now introduced a new concept of bor. That one who is hurt above ground by another’s stone, knife or package is considered the victim of a bor. Rav and Shmuel both agree with this. Tosafot questions this assumption. When one is hurt above ground by a stone, it is the concussion that harms him. Tosafot will show that Rav holds that the liability of bor is not for causing a concussion. And if you ask: Rav holds later (50b) that the that the bor for which Torah holds one liable is for the foul air that is harmful to the animal that falls into the bor and not for the concussion caused by the fall against the earth at the bottom of the pit. When an animal falls into a bor, an argument can be made that it is being hurt by the foul air. This is certainly not true if it is hurt at ground level. If Rav holds that bor is not liable for the concussion it causes, why should it be liable for hurting someone above ground? And one can answer: That there, when an animal falls into a pit, the pit digger is not liable for causing the concussion because it is the ground of the world that damaged him. Rav holds that exposing the ground that causes the concussion is indirectly causing damage and one is not liable for that. However, here when one collides with a stone that concussion is his own. It is his property that actually damaged the victim and for that he is liable. Rav holds that one is not liable for a concussion only because the earth that caused the concussion is not the bor digger’s. When the collision is with the owner’s property the owner is definitely liable.