Bava Kamma 9b

If we say one-third of his estate - How much is one required to spend in order to perform a mitzvah? That is the central issue of this Tosafot. The sources in Gemara are few and vague and Tosafot constructs his opinion based more on what has not been said than on what has been said. The first question one might ask is why is there any limit at all to the amount one is required to spend. Hashem tells us to buy an esrog, theoretically we should have to spend whatever it takes. Perhaps we should even have to go into debt? The consensus is that we are required to look not only at the cost of the particular mitzvah but also at the ramifications of spending all of one’s assets on a mitzvah. If you spent all your money on an esrog you would then have to live a life of poverty. Chazal say that poverty leads one to go against his master’s will. Obviously, the performance of a mitzvah cannot require us to put ourselves in a situation where we are liable to eventually go against the will of our Master. We must avoid poverty even at the cost of a particular mitzvah. We must now search for sources that will teach us what is considered an amount that may lead to poverty and what is not. Tosafot now leads us on a step by step tour through the available sources. Our Gemara asks: if one was faced with three mitzvos, would he be required to spend all his money? This question implies that one does not have to squander all his assets to purchase an esrog, even though he cannot find one for less and it is a mitzvah that passes with time. The mitzvah of esrog is limited to the first day of Sukos by Torah law. If one does not purchase an esrog, he will lose the opportunity to do the mitzvah. Our Gemara is not discussing spending all of one’s assets for one mitzvah. It is discussing spending all of one’s assets for three mitzvos. And it seems from our Gemara that even to spend a third of his assets is not required. Tosafot shows us his final source that reduces the obligation even further, to a fifth of one’s assets. And we also say in Ketubot (50a): He who squanders should not squander more than a fifth. Even to spend a major amount of money for the performance of a mitzvah is not required. And in sukoh (41b) the Gemara considers it surprising that Rabon Gamlee’ail purchased an esrog for one thousand dinar.

If it happened to him - The Gemara is attempting to prove that it is not likely that one should have to spend a third of his wealth to perform a mitzvah. The Gemara argues that if he was faced with three mitzvos he would have to spend all his assets on those mitzvos. This statement is not entirely accurate. For if he was faced with three mitzvos and spent a third on the first mitzvah, for example if he owned three hundred dollars and spent one hundred on the first mitzvah, he would have to spend only one third of the two hundred dollars that was left after the first mitzvah and so on. He would never spend all his assets. This system is referred to as the tenths of Rebbe, who said that male heirs of an inheritance must spend a tenth of their assets to marry off their sisters. The Gemara asks: if they have ten sisters they will have nothing left? The Gemara responds that they give for the second sister only a tenth of what was left after the first sister married. Their entire fortune will not be spent. Even if we say that the third that must be spent for each mitzvah is along the same pattern as the tenths of Rebbe, as we find in chapter M’tzias Ho’eeshoh (Ketubot 68a), and one would virtually never spend all his assets on the performance of mitzvos if this model was followed, even so the Gemara knew that one is not liable to spend so much of his wealth for the performance of mitzvos.

Up to one third of the mitzvah - The Gemara has altered its initial understanding of R’ Zeira’s statement. He did not mean that one must spend a third of his assets for a mitzvah. Rather, he must add a third for beautifying the mitzvah. How does one measure a third of a mitzvah? Rashi says that the additional third is also measured in money. If one finds an esrog with which he can fulfill the minimal requirements of the mitzvah and he has the option of spending more money to purchase a finer esrog, he must spend an additional third. Tosafot has a different view about how we measure the additional third of the performance of mitzvos. The explanation is: That if one found an esrog the size of a walnut which is the minimum size that the sages have calculated for fulfilling the mitzvah, and another esrog a third larger than the first is available, he should buy the larger esrog. Tosafot measures the third for beautifying a mitzvah not by the amount of money needed for the minimum requirement but by the object of the mitzvah itself, as in the case of the esrog as Tosafot explains it.

From the Holy One, Blessed be He - Rashi says that Hashem will pay him back the additional money he spent in his lifetime. Tosafot is uncomfortable with this explanation because ultimately it is better to be rewarded in the next world where reward is eternal than in this passing existence. The Mishna at the beginning of Masechet Pai’oh says that there are certain mitzvos for which the principal reward is in the world to come and only the dividends are paid in this world. Tosafot holds that the same applies here. He eats the dividends in this world and the principal remains for him in the world to come.

A tethered ox and a covered pit - The Braita compared shor and bor to aish, and said that one is liable for giving his shor and bor to a deaf mute, an idiot and a minor but not when he gives them his aish-fire. The Gemara is searching for the exact level of security that he provided for the shor and bor and the comparable level of security that he provided for the fire. Of course, we will need to understand, why, if the levels of security are comparable is there a difference between the shor and bor and the fire? We will see in the next Tosafot that he believes that initially the Gemara held that the level of security provided by tying an ox and covering a bor is sufficient to exempt one from liability if not for the involvement of the deaf mute, the minor and the idiot. To this end Tosafot explains that the level of security initially suggested by the Gemara is the appropriate level. First, Tosafot suggests that it is logical that the level suggested must be the proper level of security. When the Gemara suggests that the shor was tied and the bor covered, the meaning of tied and covered is that they were tied and covered appropriately, for if the Gemara meant that it was not tied or covered appropriately, such tying and covering is of no value and could not exempt the owner from liability. Secondly, Tosafot proves from the context of the Gemara’s question, that the level of security is sufficient to exempt the shor and bor owner. And furthermore, since the Gemara asks: “why is this, the shor and the bor different than the coal?” The thrust of the question is to say that both the shor and bor and the aish should be exempt and this can be true only if we are discussing a shor that was tied properly and a bor that was covered properly. That the Gemara’s objective with asking its question is that the shor and bor should also be exempt can be seen from the fact that the Gemara afterward sets up the situation of the Braita as speaking of an untied shor and an uncovered bor. It is evident that the Gemara is certainly searching for circumstances that the shor or bor owner is liable. It appears that the Gemara could not tolerate the idea that one might be liable for a tied ox or a covered bor. This must be because the Gemara was speaking of a shor that is tied properly and a bor that is covered properly.

An ox's way is to detach - Rashi explains that when the Gemara says: an ox becomes untied, it means that even without the involvement of the deaf mute it commonly works its way loose on its own and so too the bor’ is regularly uncovered on its own as a result of the traffic that passes over it. And this is difficult. For we are compelled to say that we are speaking of when the ox was tied properly and the bor was covered properly as we explained (see previous Tosafot), but later we are taught by the Mishna (52a): when one covers a bor properly he is exempt. If so, how can our Gemara conclude according to Resh Lokish that one is liable for a properly covered bor because the cover is commonly dislodged? This is a direct contradiction to the Mishna on 52a. Due to this difficulty, Tosafot rejects Rashi’s explanation. And it is more appealing to explain that when the Gemara says it commonly works its way loose, the Gemara is saying: that this is due to the deaf mute’s involvement, for the level of security is reduced, because the owner gave the secured ox to a deaf-mute. If not for the deaf mute’s involvement the ox would have remained tied. It is precisely because the owner handed over the ox to a deaf mute that a hazardous situation was created. However, handing over a coal to a deaf mute does not lessen the level of security as much as handing over an ox, for a deaf mute does not generally fan a coal, as it is common for him to untie an ox and to uncover a bor, for when a coal is left alone the fire will become weaker and weaker and be extinguished. In summation Tosafot holds that according to Resh Lokish it is the involvement of the deaf mute that causes a greater hazard when he is left with an untied ox or a covered bor. If the deaf mute was not involved the owner would be exempt.

And according to Rabbi Yoḥanan, who says - even [if] one transferred a flame to [him, he is] exempt, etc. The Braita stated that one who hands over a shor or a bor to a deaf mute is liable. This is not so of aish. When one gives an aish to a deaf mute he is exempt. The Gemara is searching for the risk level at which one is exempt by aish and will then determine the comparable level of shor and bor for which one is liable. The Gemara proves that Resh Lokish holds that one is liable for giving a flame to a deaf mute. If so, the case that one is exempt by aish is when one gives a coal that has a relatively lower risk level to a deaf mute. The comparable case of shor and bor is when the shor is tied and the bor is covered. Why is one liable for the shor and bor in that case? The Gemara answered that the shor and bor owners are liable because although they are considered low level risks if the deaf mute were not involved, now that the owner gave them to a deaf mute to guard them, it is to be expected that they will cause damage. Risk level Shor Tied - liable Bor Covered – liable Aish Coal – exempt According to Tosafot’ understanding of Resh Lokish: shor and bor will become untied and uncovered when they are given to a deaf mute to guard them, therefore the owner is liable. The coal aish will routinely be extinguished and the owner is exempt. The Gemara now turns to R’ Yochanan who holds that one is exempt even when handing over a flame to a deaf mute. If so, the Gemara asks, the comparable level of security is an untied shor and an uncovered bor. Risk level The Gemara’s conclusion according to R’ Yochanan: Shor Untied- liable Bor Uncovered-liable Aish Flame – exempt If so, why is one exempt for the flame and liable for the shor and bor? It seems that the Gemara does not have a problem understanding that one is exempt for giving a flame to a deaf mute. Tosafot assumes that the Gemara held that according to R’ Yochanan, just as a coal is a low level risk because it grows weaker and weaker and eventually extinguishes, so too, a flame is also a low level risk because if it is not fanned it will grow weaker and weaker and extinguish. The Gemara can accept this conclusion. It seems to have a problem with the comparison of this risk level to shor and bor, when it argues that the comparable level of shor and bor is an untied shor and an uncovered bor. Why is one exempt for handing over a flame to a deaf mute and liable for handing over an untied shor and an uncovered bor? Risk level According to Tosafot question: Shor Tied – liable Bor Covered – liable Aish Flame – exempt Tosafot’ question assumes that the reason the Gemara accepts R’ Yochanan’s ruling as logical is because he considers the risk level of a flame equal to the risk level of a coal. Hence, the Gemara that says that a flame is comparable to an untied shor and an uncovered bor is problematic. The risk level of a flame should be comparable to a tied shor and a covered bor. This is bewildering. What is the Gemara asking when it says that a flame is comparable to an untied shor and an uncovered bor? But it would seem that a flame according to R’ Yochanan is a low level risk, equivalent to a coal according to Resh Lokish. Just as Resh Lokish holds that a coal is likely to be extinguished, so to according to R’ Yochanan a flame is likely to be extinguished. If so, the Braita that compares the shor and bor to aish can be set up as speaking about a tied ox and a covered bor which are low level risks and the reason for the liability when handing them over to a deaf mute is because the deaf mute is likely to untie the ox and uncover the bor, exactly as was said according to Resh Lokish. Why does the Gemara need to say that the comparable risk level for the shor and bor is an untied shor and an uncovered bor which are high level risks? To solve this problem, we must depart from the original assumption that a flame is equal to a coal and find another reason why the Gemara understands R’ Yochanan’s ruling that one is exempt for handing a flame to a deaf mute. And we can answer: That it seemed to the Gemara that the reason R’ Yochanan exempts one for handing over a flame to a minor is because the minor guards it and the minor does not cause damage. Rather, to the contrary, he provides protection. The flame per se is as hazardous as an untied shor and an uncovered bor, but it is the protection provided by the minor that exempts the owner. The Gemara then correctly asks if the minor’s efforts are considered proper security for a flame even though the risk level of the flame is high, why are his efforts not considered proper security for an untied shor and an uncovered bor? Tosafot has now concluded that R’ Yochanan holds that a flame is a high risk level but the minor provides a suitable amount of protection to render the owner exempt. There are additional benefits in understanding the Gemara with this approach. And now, with the understanding that a flame is a high risk level, but one is exempt because of the security provided by the minor, the meaning of the Gemara is uncomplicated. Because we will not have a difficulty with R’ Yochanan, who set up the Braita with an untied ox and an uncovered bor; why is it necessary for the Braita to mention that he handed them over to a deaf mute, an idiot and a minor? He would certainly be liable even if he had not handed the ox and bor over to the minor. The reason that the Braita mentioned that he handed them over to a deaf mute, an idiot and a minor is to teach us a greater novelty, that even though he provided some security by handing over the untied ox and the uncovered bor to a minor he is still liable. And about this idea, whether the handing over to the minor is reason to exempt as R’ Yochanan holds or it is reason for liability, R’ Yochanan disagrees with Resh Lokish, who holds that involving a minor in guarding a tied shor or a covered bor is reason for liability as Tosafot concluded earlier. The conclusion of the Gemara, differentiating between bor and shor for which one is liable when he gives them to a minor and aish for which he is not, requires additional explanation according to Tosafot. Tosafot Rabbeinu Peretz says that the Gemara is essentially differentiating between the need to provide active or passive security. In the case of aish it is a positive action of the deaf mute that may cause a fire. If the flame is left as is, no damage will occur. For this, the passive security provided by handing over the flame to the minor and entrusting him with it is sufficient. If the minor then decides to cause damage with the flame the owner is not responsible. With shor and bor the opposite is true. If not actively guarded the shor and bor will cause damage on their own, the efforts of the minor are not necessary to cause the damage. The minor must prevent the ox and bor from causing damage and this he is not capable of doing. Handing over the ox and the bor to a minor is not providing aggressive security and the owner is liable for any damage that his shor or bor cause.

A stringency [that applies] to the ox - The Braita is discussing the relative chumros - stringencies and kulos - leniencies of various avos. Shor is mentioned among them. But shor has three avos, keren, shain and regel. Which one is the Braita discussing? This av of shor that the Braita is discussing is keren, as is evident from our entire Gemara.

The way [of the ox is] to proceed and cause damage - While the Braita is discussing the relative stringent and lenient aspects of the avos, the Braita does not mention some of the stringent characteristics mentioned in our Mishna. For example, the Braita does not mention that shor is alive, which is mentioned in our Mishna. Nor does it mention that shor has intent to damage, which is mentioned in the Gemara on 2b. Tosafot wants to know why these chumros were not mentioned in the Braita. The first stringency Tosafot addresses is that Shor is alive. The reason the Braita does not mention that shor is alive which is not so of bor is because that is included in the chumro - stringency mentioned, and it is usual for shor to travel and damage. And that shor has intent to damage cannot be mentioned in contrast to bor which is not alive and inherently is incapable of intent.

Which is not true regarding the pit - The Braita says that when a person is killed in a bor, the bor owner does not pay kofer. And the same is true of aish, as the Braita soon teaches us when comparing shor to aish, that shor pays the kofer which is not so of aish. It is clear from the Braita that both bor and aish do not pay kofer. What is not clear is the source of this ruling. And if you ask: And we should learn from shor and they, bor and aish, should be liable for kofer? And even though it can be said as a refutation of this comparison to shor, that shor is alive and that is why it has a chumro to pay kofer while bor and aish are not alive, and that is why they do not have the chumro of paying kofer, ultimately, this refutation cannot be used. For the Gemara concludes later in perek Kaitzad (26a) that there is liability for kofer when a person is killed by regel. We see that we learn that regel is liable from keren, and we do not refute the derivation by arguing how can you compare regel to keren? Keren should be liable because it has intent to damage which regel does not and it also has another chumro that it is liable in a public domain where regel is not liable. We see that when learning from keren that another av should be liable for kofer we do not present the usual refutations that would disallow the derivation. We must agree that shor could be used as a source to teach us that all other avos are liable to pay kofer when they kill a person. We must now have a verse that teaches us that we should not learn from shor that all avos should be liable for kofer payment. And we can answer: That aish and bor are exempt from kofer because we expound the verse in Shemot 21, 30, “If he shall place kofer on him”, on him, refers to the shor and we understand that the liability for kofer is exclusively on him, the shor, and not on the bor. The same applies to aish- on him, the shor, and not on the aish, just as the Gemara expounds this verse at the conclusion of Kaitzad (ibid.) on him, the shor; there is liability for kofer and not on the person who kills. We now see that there is a specific source - on him, and not on the bor - to teach us that bor is not liable for kofer when a person is killed by bor. In the verse dealing with bor, the Torah writes “and an ox or a donkey will fall into it”. The Gemara expounds the word “an ox” to exclude a person who falls into a bor. (See note 1) One is only liable if an animal falls into his pit and not when a person falls into his pit. And if you ask: the teaching shor and not a person, which is written by bor to exclude a person who fell into the bor, why is it necessary? It can be derived from the verse written in regard to kofer, on him, the shor there is an obligation to pay kofer and not on a bor that kills. Tosafot question assumes that “an ox and not a bor” excludes the bor owner from the payment of kofer. In order to answer Tosafot question we must depart from that assumption. And we can answer: The verse that teaches us that the victim of bor must be a shor and not a person is needed to exempt the bor owner when a Canaanite slave falls into the bor or when a gentile who was owned by a Jew falls into the bor. In either of these cases there is no kofer payment and thus there is no need to exclude the bor from payment of kofer. The verse is needed to exempt the bor from paying for the value of the slave or the Gentile owned by a Jew. That could not be derived from the verse “on him” and not on the bor, because that verse is speaking exclusively about kofer and not the payment for the value of the slave.