It is similar to a slave or maidservant - Rashi explained that the exemption is taught by a Mishna later in Perek Hachovail that says that when a slave damages, his owner is not liable. Tosafot holds that the Mishna Rashi quotes is not the proper source of this ruling. The source for this ruling in the Mishna is not as Rashi explained because we are taught in a Mishna in perek Hachovail (later 87a) that as far as a slave and a married woman are concerned, an encounter with them is terrible, for one must pay if he injures them and they do not have to pay if they injure anybody. For if it was so that our Gemara is referring to that Mishna, the Gemara should have mentioned ‘a slave and a married woman’, which would be a direct quotation of that Mishna. Since the Gemara does not mention ‘a slave and a married woman’, it seems that the Gemara is not referring to that Mishna. Rather, Rabbeinu Tam explains that the Gemara mentioned a slave and a slave woman, because it is referring to a Mishna at the end of Masechet Yadayim (Chapter 4, Mishna 7) that specifically discusses this case of a slave and a slave woman who damage others. And the reason that they are exempt which is because their master may anger them and they will damage another person’s property in order to cause their master to pay that is soon mentioned in our Gemara is explicitly mentioned there in Masechet Yadayim, which also proves that our Gemara is referring to that Mishna.
Is it not so that although their objective is to cause damage, nevertheless their owners are exempt? The Gemara is presently contending that intent to harm is a positive reason to hold one liable. The questioner attempts to prove that this is not so. His proof is from a Mishna in Masechet Yadayim (Chapter 4, Mishna 7) that says: that a slave and a slave woman who damage others are exempt. The slave and slave woman do have intent to damage and even so they are exempt. The Gemara responds: although it is true that a slave has intent to harm and his owner should therefore be liable, there is an overriding reason to exempt the owner. The slave can cause the owner untold losses by damaging other people’s property when he is enraged by his master. If he knows that the master is liable, he will use this weapon against him. If however, the master is exempt, this weapon has been neutralized. It is for this overriding reason that the owner of a slave is exempt when the slave damages others. The Gemara’s contention that intent to damage is a positive reason to hold one liable remains intact. All this information about the exemption of a slave appears in one Mishna in Masechet Yadayim. Tosafot wonders: How much information did the questioner have, when he asked his question? Tosafot is extremely puzzled by this problem and presents three difficulties with the simple explanation of the Gemara. The first difficulty: And if you ask: As far as a slave and a slave woman themselves, we should learn from a kal v’chomer from shain that they are liable for damaging, since the questioner did not yet know the reason for exempting the slave owner mentioned later which is that his owner may anger him and he will cause him untold losses. As long as the questioner does not have that information, he should be convinced that the slave owner is liable, whereas the Mishna in Yadayim clearly says that he is exempt. The second difficulty: And there is another problem: since the questioner obviously knew the beginning of the Mishna in Masechet Yadayim, as can be seen from the fact that he uses the phrase “a slave and a slave woman”, which is a direct quotation of the Mishna in Yadayim, and he does not use the phrase “a slave and a married woman” that is used in Perek Hachovail, then he most probably knew the end of that Mishna, which states the reason for the exemption, that his owner may anger him and he will cause him great losses. How did the questioner ignore the reason stated in the very Mishna that he is quoting? A third difficulty: And there is another problem: that a slave and slave woman, even when they have no intent to damage are also exempt. This proves that the reason for their exemption has nothing to do with their intent to damage. If intent was the reason for their exemption, they would be liable when there was no intent to damage. If so, how is the questioner bringing proof that intent to damage is not a reason for liability? The exemption of the slave owner has nothing to do with intent or the lack of it. Tosafot has now presented three problems with the simple understanding of the Gemara: 1) How can the questioner make peace with the exemption of a slave and slave woman? According to his understanding they should be liable based on a kal v’chomer from shain. 2) How could the questioner not have known of the reason mentioned in the Mishna in Yadayim that a slave who is angered will cause his owner great losses? 3) How can the ruling of a slave be used as proof that intent to harm is a reason for exemption? The slave is exempt even when there is no intent to harm. In order to answer all Tosafot questions we will have to adopt an entirely new approach to the Gemara’s question. For a fuller understanding of the issues we will identify three levels of intent that are possible when a slave damages. a) He intended to damage because he wanted to cause his master a loss. Only a human is capable of such intent. b) He intended to damage without thinking of the consequences to his master. This is similar to an ox that damages. It intends to damage but is certainly not thinking about causing its owner a loss. c) He did not intend to damage at all. He may have been negligent or a victim of unavoidable circumstances. And we can answer: that the questioner certainly did know the reason for the exemption mentioned at the end of the Mishna that his master may anger him and he will cause the master major damages if the master was required to pay. And even so the questioner asked that from the ruling of a slave we see that intent to damage is a reason for exemption, not liability. The basis of his question is that since we see that a slave and slave woman are exempt even when they have no intention to damage and even though the reason that their master may anger them does not apply in this specific case. The reason the owner does not pay is because he is an אונס, a victim of a situation beyond his control, the slave and the slave woman are intelligent human beings who have a mind of their own and it is impossible for him to stop them when they intend to damage. But perhaps they are damaging because their owner angered them and that is why the owner is exempt? We will prove that the owner is exempt even when it is clear that they are not damaging with the intent to cause him a loss. Because sometimes they, the slave and slave woman, damage intentionally, and they say that they had no intention to damage. If they truly intended to avenge themselves for being mistreated by their master, they would want their master to know that they did this to hurt him. Since they are denying that they damaged intentionally, they obviously did not intend to hurt their master. Therefore their owner is exempt in any case even when there is clearly no intent to avenge themselves from their master, but why? What emerges is that their intention to damage causes that the situation is beyond the control of the owner and that is why he is exempt. It is not because of the possibility that his owner angered him, because we have proof from the fact that they said they had no intention to damage that they did not want to take revenge. It must be the fact that they have intent to damage is what makes the situation beyond the control of the master. The questioner’s conclusion is: keren as well; where there is intent to damage is a situation beyond the control of the ox owner and we should exempt it. And Rav Ashi explained that even when there is no intention to damage there is a major overriding reason to exempt the slave owner. Rav Ashi believes that the slave would feel a sense of revenge even if he tells the master that he damaged unintentionally. His satisfaction comes from knowing that the master must pay. This is possible in all situations, even when it appears to us that the damage was totally unintentional. According to Rav Ashi the concern that the slave is damaging for revenge is ever present and that is why the master is always exempt. Thus there is no proof at all that intent to damage without the motivation for revenge is considered beyond the control of the master.
And when [he] causes damage, the damager is liable - These words appear twice in the Mishnayos of our Perek. Once in the very first Mishna on 2a and a second time in the Mishna on 9b. Tosafot wants to clarify which Mishna we are referring to when the Gemara says that these words כשהזיק חב המזיק comes to include regel or keren. When the Gemara says that comes to include regel or keren the Gemara does not mean the first that appears in the Mishna on 2a. Rather, the Gemara is referring to the other mentioned on 9b. It is from that Mishna that regel or keren is included.
To enumerate it among the forewarned - In the give and take between Rav and Shmuel, Shmuel argues that our first Mishna did not mention a person who damages because the Mishna teaches us about a person later on 15b. Rav counters that although a person is already mentioned in the first Mishna on 2a, it was mentioned once again on 15b to be listed with the other muadim. Actually, some other avos, such as shain and regel are also mentioned there which seem to lend credence to Rav’s explanation. In our Gemara, Shmuel does not respond to Rav’s argument. Tosafot will tell us what Shmuel’s response is. And Shmuel holds that the Mishna did not have to inform us in the end of the Mishna on 15b about a person, since the Mishna there is not teaching us anything new about a person who damages that we do not already know from the beginning of the Mishna. The same is not true of shain and regel that are mentioned in the first Mishna on 2a and the Mishna on 15b. However, shain and regel, even though they are taught in the beginning of the Mishna on 2a, they are taught again in the end of the Mishna on 15b together with the muadim, because of something new that the Mishna explains there, which is, that shain is muad only to eat that which is suitable for it, not clothing and regel is muad to break objects as it walks. These details of shain and regel are new information and that is why they are mentioned together with the muadim on 15b, whereas nothing new is taught about a person who damages. Shmuel holds that if a person was mentioned in the first Mishna there is absolutely no reason to mention him again in the Mishna on 15b. Since he is mentioned there it is proof that the Mishna did not mention him previously and that maveh is not a person. But what about keren, which is mentioned in the end of the Mishna together with the muadim even though nothing new is taught about it? And keren was also taught in the end of the Mishna on 15b, even though it was taught in the beginning of the Mishna with the words “when he damages the damager is liable”that come to include keren as an av, and nothing new is taught about keren in the end of the Mishna, even so, it is taught in the end of the Mishna because it is already taught there in regard to the five tamim, which are all keren, since no other av has two subdivisions, tam and muad, and it is for that reason that keren is taught together with the muadim. Just as we have analyzed the reasons why shain, regel and keren are mentioned in the Mishna on 15b, we must also know why aish and bor are not mentioned in that Mishna. And if you ask: why did the Mishna on 15b not list aish and bor among the muadim? And we can answer: that he listed only damagers that are alive. There is a logical difference between the first time an animal damages and the fourth time. The first three times, it is not yet evident that the animal is in the habit of causing damage and after three times it is apparent that the animal is a habitual damager. This distinction is true only of animals, but as far as bor and aish are concerned, the same tendency to damage is true the first time as it is the third or fourth time.
similar to characteristic of the Man, where does not pay the ransom - The G’moro is showing that there is an inherent leniency with the way the Torah deals with a person who has murdered someone else. Whereas, when an animal kills a person the owner is liable to pay kofer, a person who kills someone else is not liable for the kofer payment. So too, argues the G’moro that although an animal might be liable to pay damages, a person may be exempt. One cannot derive the liability of a person who damages from the liability of an animal that damaged. This argument is based on the understanding that a person’s lack of liability for the kofer payment is a leniency. Tosfos questions this assumption. Riva asked: what sort of stringency is this, that a person does not pay kofer? The reason he does not pay kofer is because it, the obligation to pay kofer, is canceled by that, capital punishment for murdering, which is greater than it, the financial fine of kofer. Indeed, it is the severity of a person’s behavior, that carries with it capital punishment which causes that he does not pay the kofer. If so, how can the G’moro present non-payment of kofer as proof that the laws governing a person are lenient in comparison to those governing an animal? And he answered: That it is not the severity of a person that causes him to be exempt from kofer, because we find that an unintentional murderer is also exempt from kofer, from that which was taught in the academy of Chizkeeyoh. Since we see that a person is exempt from kofer payment even if he murdered unintentionally, it is obviously not because of the stringent way the Torah deals with a person, but rather, because of the lenient way the Torah is dealing with him. The G’moro’s original contention that non-payment of kofer proves that the Torah is lenient with a person remains. Tosfos is skeptical about legitimacy of the Riva’s question. Riva’s question assumes that the reason a person who kills is exempt from kofer is because of the principle that a lesser punishment is canceled by a greater punishment. R”I will prove that the basis for the exemption is totally independent of the principle of קם ליה בדרבה מיניה. The question we must ask is; why the principle of the greater punishment cancels the lesser does not apply? Upon proper analysis we can see that the Torah in Sh’mos 21, 22, is not discussing a financial payment for causing the death of the mother. Such a payment if it were to take the form of kofer might be in order as far as that verse is concerned. What the verse there is excluding is a payment for the lost fetus, which of course is totally independent of the payment for the mother’s life. It may be that we can learn from the verse that only independent payments are canceled by a death penalty, but we cannot learn from that verse that a payment for the death of the mother is exempt because of that verse. And R’I says: That the Riva’s question is no question at all, because one is not exempted from kofer because of the principle that a lesser punishment is canceled by a greater punishment, and here in the discussion of non-payment of kofer it is not possible to mention that which was taught in the academy of Chizkeeyoh, because that is an extension of the principle that the lesser punishment is canceled by the greater punishment. Since the original principle does not apply, the extension also does not apply. Later the Gemara on 26a asks that a person should be liable for kofer based on a kal v’chomer. If an animal that is not liable for the four things, pain, medical expenses, lost time and embarrassment, is liable for the kofer, a person who is liable for the four things should certainly be liable for the kofer. The G’moro rejects this kal v’chomer, because the verse obligating one to pay kofer uses the word עליו - upon him, referring to the animal and the G’moro understands that this means to exclude a person from kofer. Tosfos now applies what we learn from that G’moro to the issue under discussion. For later in the second Perek on 26a it appears that if not for the verse עליו- upon him, the ox, and not upon the person, we would derive liability for a person who killed from an ox that killed, based on the kal v’chomer we mentioned earlier. The liability for intentional murder would be capital punishment and kofer. It does not seem that the principle of the lesser penalty being canceled by the greater penalty is relevant. And it is from עליו, that he is exempted from kofer. The exemption of עליו applies even when he killed unintentionally, because a person who murders unintentionally is comparable to an ox that killed, even though the ox had intent to kill, there is no legal validity for the intention of an ox. Just as an ox kills with less than legally valid intent, so too, a person who kills unintentionally lacks legally valid intent. Since the Torah says עליו- and not upon a person, the implication is that in any way the ox is liable for the kofer, a person is exempt. The ox is liable even though his intent is not legally considered intent, so too, a person is exempt when he does not have legally valid intent to kill. We now have a source other than קם ליה בדרבה מיניה for the exemption from kofer for both intentional and unintentional murder. However, we must still know why that principle does not apply to kofer. And that which was taught in the academy of Chizkeeyoh, that exempts one who kills even unintentionally, is not discussing kofer, which is a penalty for killing, it is referring to property that one damaged as he was committing a capital violation. That payment would be totally unrelated to the capital violation. The relationship of the two violations is simply one of time. They both happen together, as in the case of paying for a fetus. The capital violation of murdering the mother happens at the same time as the financial obligation for aborting the fetus. The reason one pays for the fetus has nothing to do with the death of the mother. That which was taught by the academy of Chizkeeyoh comes to reject the opinion of the one in Perek Ailu Naaros (K’subos 35a) who expounds the verse in Sh’mos 21, 22, “if there will be no death, the perpetrator must pay”. He deduces, but if there will be a death, there will be no payment for the fetus. The word אסון death, refers specifically to the penalty for death, and it is actually only if the murder was intentional when there will be a death sentence, that there will be no payment for the aborted fetus. If however, the murder was unintentional and the murderer is not executed, the payment for the fetus must be made. It is this opinion that Chizkeeyoh rejects. Chizkeeyoh comes and informs us that it need not particularly be liability for the death penalty that cancels the payment for the fetus but even an unintentional murderer is not punished with payment for the fetus.
Since [one] contracts and extends [his limbs] while sleeping, it is his [typical] manner [to damage]. The Gemara is saying that it is the norm for a sleeping person to damage others because he bends and stretches as he sleeps. It is only logical that his liability is limited to the area in which he bends and stretches. As long as he is careful that there is nothing to damage in his immediate area, he will not be liable for damage that occurs as the result of someone else’s behavior. In Yerushalmi it is stated, that a sleeping person is only liable when he laid himself down next to the vessels that he broke, but if he was asleep and others brought vessels and placed them next to him, and he broke them, he is exempt because they caused him to break the vessels by placing them next to him. And so too, if he was asleep and his neighbor went to sleep next to him, and they damaged each other while asleep, the first one is exempt and the last one is liable.
And according to your reasoning - Shmuel questioned Rav; the Mishna says about the avos, it is your obligation to guard them, this term does not seem to refer to a person. It is a person’s obligation to guard himself, not to guard them. Rav responds: and according to your reasoning, you have the same problem. What is Shmuel’s reasoning, that Rav to which Rav refers? The explanation is: even if you say that maveh in our Mishna is shain, the term “and it is your obligation to guard them” makes sense in our Mishna, but that term is used in Karno’s Braita where a person is specifically mentioned among the avos, and even so he uses the term “and it is your obligation to guard them”. How will you deal with the term “and it is your obligation to guard them” there.
[For a] man [the responsibility for] safeguarding his body is upon him - The Gemara only seems to have a problem with one term that the Mishna uses “and it is your obligation to guard them”. Otherwise, there is nothing in the Mishna that presents a problem to Rav who says that maveh is a person. From this question, it appears that we do not have in our Mishna the text וממונא -- and it is your property, since the Gemara does not also ask; is a person his own property? As the Gemara is asking how Rav’s position is compatible with the Mishna, this question should also have been raised. Tosafot is not convinced of the severity of this problem. And for this reason, that the Gemara did not raise the question, it need not be erased, as I have explained earlier.
