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Bava Kama 2
BAVA KAMA 2 - the opening Daf in Seder Nezikin has been dedicated by Rabbi
Dr. Eli Turkel of Ra'anana, Israel, to the memory of his father, Reb Yisrael
Shimon ben Shlomo ha'Levi Turkel, whose Yarhzeit is tomorrow (10 Av).
1) THE LIST OF THE FOUR "AVOS NEZIKIN"
QUESTION: The Mishnah teaches that there are four "Avos Nezikin." TOSFOS and
the Rishonim point out that the Mishnah does not use the term "Hen" ("it
says "Arba'ah Avos Nezikin" and not "Arba'ah Avos Nezikin *Hen* -- "four
Avos Nezikin *they are*"), as it normally does when it lists a number of
items and introduces the list with a number, and gives no descriptive terms
for the items in the list. Similarly, the Gemara later (4b) cites a Beraisa
of Rebbi Oshiya that lists thirteen Avos Nezikin, and a Beraisa of Rebbi
Chiya that lists twenty-four Avos Nezikin, and both of those Beraisos omit
the word "Hen." The Rishonim mention that the only other place where the
Mishnah presents a numbered list without the word "Hen" is in Kerisus (8b),
where the Mishnah says that there are "Arba'ah Mechusrei Kaparah" and it
does not say "Arba'ah Mechusrei Kaparah *Hen*."
2) DERIVING THE OBLIGATION TO PAY FOR DAMAGES THROUGH A "KAL V'CHOMER"
Why does the Mishnah here leave out the word "Hen?"
ANSWERS: The Rishonim suggest a number of answers which complement each
(a) The RASHBA suggests that the Mishnah does not say "Hen" to allude to the
fact that these are not the only Avos Nezikin. There actually are more Avos
Nezikin, as Rebbi Oshiya and Rebbi Chiya list. The Mishnah does not count
the other Nezikin because it chose to present a limited list (see reasons on
4b). The same is true for Rebbi Oshiya's Beraisa which leaves out the Avos
Nezikin counted in Rebbi Chiya's Beraisa. The Gemara asks on Rebbi Chiya's
Beraisa, as well, what is it that he left out, and it explains that he also
chose to limit his list, leaving out two items from his list
The Rashba explains that the way that the Gemara knew that Rebbi Chiya left
something out from his list is because he did not say the word "Hen."
The Rashba, however, leaves unanswered why the Mishnah in Kerisus does not
The Gilyon cited by the SHITAH MEKUBETZES points out that the same answer
might be applied to the Mishnah in Kerisus, according to TOSFOS in Kerisus
(2b, DH la'Afukei). Tosfos there explains that the Mishnah in Kerisus
chooses to limit its list and not enumerate all of the cases of Mechusrei
Kaparah just like our Mishnah.
(b) The MAHARI KOHEN TZEDEK cited by the Shitah Mekubetzes answers that the
word "Hen" is written to emphasize the differences between the items listed.
He seems to mean that the word "Hen" is used when one might think that some
of the items in the list are identical and should not be counted
independently. The Mishnah adds the word "Hen" to emphasize that there
indeed are this many different items that must be enumerated, and no less.
In our Mishnah (and in the Mishnah in Kerisus), on the other hand, it is
obvious that the different Avos (or, in Kerisus, the Mechusrei Kaparah)
should be listed separately because of their distinct qualities. The Mishnah
writes "four" to exclude *more* than four and not less than four, and
therefore it does not need to use the word "Hen."
This is also the answer of the TOSFOS RID cited by the Shitah Mekubetzes,
and the answer of the NACHALAS DAVID.
(Even though the Mishnah continues and says "Lo Harei...," it is not trying
to point out that the Avos are different, but rather that each Av has a
*Kula* and therefore it cannot be learned from a combination of the others.)
We find a similar concept in TOSFOS in Kerisus (2b, DH l'Me'utei), who says
that when the Mishnah emphasizes the differences between the items in its
list, it is not necessarily excluding other items from the list. That is,
some Mishnayos tell us the *minimum* number of items, and other Mishnayos
tell us the *maximum* number of items.
(c) Perhaps the Mishnah uses the word "Hen" when the list includes items
that are not discussed explicitly in the Torah. "Hen" means that besides the
ones in the list that we already know, there is a another certain amount of
items that should be included in this list. For example, the Mishnah
(Shevuos 49a) says, "Arba Shomrim Hen," because one of them, the Socher, is
not mentioned anywhere in the Torah explicitly (see Rashi 5a, DH Tachas
Nesinah). The Mishnah in Rosh Hashanah (2a) says, "Arba Roshei Shanim Hen,"
because those days are not described by the Torah as Roshei Shanim. The
items that our Mishnah, and the Beraisos of Rebbi Oshiya and Rebbi Chiya,
list -- the Avos Nezikin -- are written explicitly in the Torah, as are the
Mechusrei Kaparah listed in Kerisus. They are mentioned in the Mishnah only
to teach that they pay from "Meitav." (Even though Rebbi Oshiya and Rebbi
Chiya mention "Socher," they do not mean to teach us anything new by that,
since Socher is already listed in the Mishnah of the four Shomrim.)
(This answer is similar to the previous answer.)
QUESTIONS: The Mishnah teaches that had the Torah not mentioned each one of
the Avos Nezikin, the ones not mentioned could not have been derived from
those that were mentioned through a Binyan Av. (See Chart to 5b. The
Rishonim point out that according to the Gemara's conclusion on 5b, this
part of the Mishnah was written only "l'Hagdil Torah ul'Ha'adirah;" see also
Tosfos here, DH v'Lo.) It seems clear from the Mishnah and Gemara that had
one of the Avos been more lenient than all of the others, the rest could
have been derived from it through a Kal v'Chomer or Binyan Av. TOSFOS (DH
v'Lo) explains that although the normal rule is "Ein Onshin Min ha'Din," a
punishment cannot be derived through an exegetical process such as a Kal
v'Chomer of Binyan Av (rather, it must be written in the Torah explicitly or
learned from a Hekesh), nevertheless we are able to punish the Mazik based
on a Kal v'Chomer and force him to pay for the damage he did because
*monetary* punishment *can* be learned from a Kal v'Chomer. It is only
*physical* punishment that cannot be learned from a Kal v'Chomer. This is
clear from many Gemaras and Mishnayos that derive a monetary punishment
through a Kal v'Chomer (see, for example, the Mishnah later, on 24b; see
also RASHI in Chagigah 11b, DH l'Vito).
There are a number of questions on this principle.
(a) This rule seems to contradict the Mechilta (cited by Tosfos), which
teaches that the reason the Torah writes that a person who "opens a ditch or
who digs a ditch" (Shemos 21:33, "v'Chi Yiftach... O Ki Yichreh") is Chayav
is to teach us that had it not written explicitly that the digger is Chayav,
then he would be exempt because of "Ein Onshin Min ha'Din!" (TOSFOS DH v'Lo)
(b) The basis (see HALICHOS OLAM 4:12) for the principle of "Ein Onshin Min
ha'Din" is that a Kal v'Chomer is based only on logic, and it can be refuted
by a logical disproof (Pircha). Since a logical disproof can counter the Kal
v'Chomer, we can never be absolutely certain that the Kal v'Chomer is
correct; perhaps someone later will come and find a logical disproof to the
Kal v'Chomer. Therefore, we cannot rely on a Kal v'Chomer to administer a
physical punishment, but only to derive a prohibition to perform a certain
According to this logic, a monetary punishment should also not be able to be
learned from a Kal v'Chomer. As long as there is a possibility that the
defendant is not Chayav, he should be exempt from paying based on the claim
of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah!" (SEFER KOVETZ AL HA'RAMBAM,
Hilchos Avodas Kochavim 6:4)
(a) TOSFOS implies that the Mechilta might be arguing with our Mishnah.
However, other Rishonim find this difficult to accept, since so many
Mishnayos seem to take it for granted that a monetary punishment can be
administered based upon a Kal v'Chomer.
The RASHBA explains that the Mechilta means to say that with regard to Bor,
a monetary punishment could not have been derived through a Kal v'Chomer had
the verse not stated the punishment. The reason Bor is unique is because it
is a Chidush that a person is Chayav to pay for the damages caused by his
Bor, since the damaged item (such as an ox) brought itself into the Bor, and
the Bor did not approach the item and damage it. Also, the Torah teaches
that even though the Mazik does not own the Bor (for example, the Bor is in
Reshus ha'Rabim), he still must pay as though it was his property that did
the damage (see later, 29b). Since Bor is a Chidush, we would have thought
that we can obligate a person only with what the Torah itself teaches and we
cannot make a Kal v'Chomer. This is because a Chidush of the Torah might not
follow the dictates of our logic (see Moed Katan 7a, Nazir 37a, Chulin 34a).
The Rashba's point is not clear. It would still seem that our Gemara is
arguing with the Mechilta, since the Gemara (5b) proposes to learn the other
Nezikin from Bor through a Kal v'Chomer or Binyan Av. Second, if the rule of
the Rashba is correct, then why does the Mishnah and Gemara in Makos (5b)
ask that Edim Zomemin should be Chayav for killing a person because of a Kal
v'Chomer (the Gemara cites verses to prove that "Ein Onshin Min ha'Din")? We
should not be able to learn Halachos of Edim Zomemin from a Kal v'Chomer,
because the law of Edim Zomemin is a Chidush (Bava Kama 72a)!
Perhaps the Rashba means that the Mechilta learns from this verse that Bor
*would* have been viewed as a Chidush and we would not have been able to
learn Halachos from Bor through a Kal v'Chomer had the Torah not said "Ki
Yichreh." Now that the Torah says "Ki Yichreh," it teaches that Bor is to be
viewed as the same as other Avos Nezikin (and we may derive other Avos
Nezikin from it).
Why, though, does the Mechilta teach us what would have been the Halachah in
a case of Bor had it been a Chidush, if it is not a Chidush?
The answer is that the Mechilta wants to teach us the way the logic of Kal
v'Chomer is applied in other cases where a Halachah is indeed a Chidush.
Perhaps such a case would be a case of Edim Zomemin who testified about a
monetary obligation. The Mechilta would hold that we do not derive a
punishment for such a case through a Kal v'Chomer, unlike Tosfos (4b, DH
v'Edim) whom the Rashba himself cites (5a).
With regard to the Gemara in Makos which says that we do not punish -- based
on a Kal v'Chomer -- Edim Zomemin who caused a person to be killed because
of the rule of "Ein Onshin Min ha'Din," the RITVA there writes that this is
not the real reason why we do not punish Edim Zomemin who cause someone to
be killed. Rather, the real reason is indeed because Edim Zomemin is a
Chidush and we cannot learn a Kal v'Chomer from a Chidush. The Gemara
mentions "Ein Onshin Min ha'Din" only because the discussion there revolves
around Edim Zomemin who caused a person to be killed, in which case we do
not have to point out that Edim Zomemin is a Chidush, because even if it was
not a Chidush, we could not punish them because "Ein Onshin Min ha'Din."
However, even if it was not a matter of corporeal punishment but of a
monetary obligation, we still would not be able to derive the obligation
from a Kal v'Chomer because Edim Zomemin is a Chidush.
(b) The SEFER KERISUS (1:17) suggests that the words, "Ein Onshin Min
ha'Din," as used by the Mechilta mean something completely different than
what the words normally mean. (This is a common occurrence in the Gemara;
see RASHBA to Yevamos 108a, and Nidah 21b.)
The Mechilta means as follows. The Gemara (50a) asks the question of the
Mechilta -- why does the Torah have to teach that one must pay for damages
if he digs a Bor, if the Torah has already taught that one is obligated to
pay even if he merely opens a pre-existing Bor? Rebbi Akiva answers that had
the Torah only taught that one is obligated for *opening* a Bor, we might
have thought that if one *digs* a Bor, he is obligated to pay for damages
even if he covers it with a strong covering. We might have thought that one
is only exempt from damages caused by his Bor when he fills up the Bor
entirely. The Gemara later (55b) cites a Beraisa that teaches that based on
this point, Bor is one of the four things for which the Torah does not
require a strong Shemirah, and it lessened the degree of the Shemirah
required (one is not required to fill in the ditch but merely to cover it).
This is what the Mechilta means to say. Logically, we would have thought
that one who digs a ditch must fill it in and it is not enough to cover it.
The Torah says "Ki Yichreh" to teach that "Ein Onshin Min ha'Din" -- we do
not punish a person *in the way that is befitting*, according to what he
deserves; rather, it suffices for him to cover the pit without filling it
(c) The MAHARI KOHEN TZEDEK cited by the Shitah Mekubetzes explains that the
Mechilta means to say that a punishment "b'Yedei Shamayim" is not derived
through a Kal v'Chomer.
Anyone who harms another person due to negligence, through one of the Avos
Nezikin, can be Chayav also b'Dinei Shamayim (see Rashi to Shemos 21:29).
That is why the Torah had to state explicitly that a person is Chayav for
digging a Bor. Without the verse, though, we would have known the *monetary*
obligation (because of the Kal v'Chomer). (See also TOSFOS in Chulin 115b,
DH Mah, who proves that the punishment of Kares cannot be derived from a Kal
3) THE "TOLDOS" OF "NEZIKIN"
OPINIONS: The Mishnah (2a) states that there are four "*Avos* Nezikin,"
implying that there are also Nezikin which are "Toldos." The Gemara shows
that the Toldos of Melachos of Shabbos *are* "k'Yotzei ba'Hem;" the Toldos
are similar to the Avos Melachos. It also shows that the Toldos of Tum'ah
are *not* "k'Yotzei ba'Hem;" the Toldos do not have the same Halachos as the
Avos ha'Tum'ah. The Gemara inquires whether the Toldos of Nezikin are
similar to the Avos, "k'Yotzei ba'Hem," or not.
If the Toldah is like the Av, then we learn the Halachos of the Toldah from
the Av. However, if the Toldah is not like the Av, then what determines its
(a) RASHI (DH Hacha Mai; DH Mai Shena Keren; and 3a, DH Mai Shena Regel)
explains that the Gemara's question is whether one is obligated to pay for
damage when he inflicts it through a Toldah of one of the Nezikin, or
whether one is completely exempt from compensating for the damage caused by
a Toldah. If Toldos of Nezikin are similar to the Toldos of Tum'ah, then
just like the Toldos of Tum'ah are not strong enough to be Metamei the same
way as an Av, the Toldos of Nezikin are not strong enough to create an
obligation for a person to pay.
If one is not obligated to pay for a Toldah of Nezikin, then in what sense
is it a "Toldah?" It is not considered to be a Nezek altogether if one is
not obligated to pay for it!
It seems that Rashi means that it is considered a Toldah insofar that one is
obligated to prevent such damage from occurring. However, one who does not
fulfill his obligation to prevent such damage from occurring and
transgresses and causes damage to another person's property, he does not
have to pay for it.
It is clear from Rashi that anytime a person damages someone else or someone
else's property, he is also transgressing a prohibition, even if he fulfills
his monetary obligation to compensate for the damage (or even if he is
exempt from monetary obligation). What is the source for this Isur?
1. RASHI in Gitin (21b) writes that since we find that an owner of an Eved
must free his Eved if he damages any of the Eved's Roshei Evarim, it can be
inferred that it is *prohibited* to damage the Eved in the first place.
Rashi seems to be learning that anytime we find a monetary obligation, we
may infer that it is prohibited to do an act that causes such an obligation.
(The BIRKAS SHMUEL cites RAV CHAIM SOLOVECHIK who suggests that since the
Torah says "v'Lo Yishmerenu Be'alav" (Shemos 21:36), teaching that the owner
of the ox must pay because he did not guard the ox properly, we can infer
that the Torah expects a person to guard his ox properly.)
(b) The RIF explains that there are some Avos Nezikin for which one must pay
Chatzi Nezek "Min ha'Aliyah" (Regel, Shen, and Keren Mu'edes), and there are
some Avos for which one must pay Chatzi Nezek "m'Gufo" (Keren Tamah).
Therefore, the Gemara is asking whether the Toldos of the Avos have the same
Halachah as the Av, or whether they have the leniencies that we find in
The KEHILOS YAKOV questions this logic. How can we say that it is prohibited
to allow one's animal to cause damage? In the case of Regel, the animal is
simply walking in its normal manner through the marketplace when it causes
damage (as the Gemara asks on 19b, "is the owner of the ox obligated to hold
on to its tail [so that it does not wag it while walking]?"). It is
permitted to allow the ox to walk in its normal manner, and yet we see that
one is obligated if his ox does damage while walking!
However, others point out that this is exactly why one is exempt from
damages caused by Shen and Regel in Reshus ha'Rabim (see ROSH 1:1). When a
person walks his ox through a neighbor's field, he indeed must be careful
that it not cause damage even in the normal manner of walking.
2. RABEINU YONAH (beginning of Avos) writes that we learn the Isur to damage
another person's property from Lo Sigzol,. This is also the implication of
the TUR (beginning of Choshen Mishpat 378).
It is not clear how the prohibition to cause damage can be learned from the
prohibition against stealing, since that prohibition is only transgressed
when the thief does an act of *Kinyan* on the other person's property (see
Bava Metzia 26b). Perhaps he means that it is learned from a "Meh ha'Tzad"
from Lo Sigzol and from the prohibitions of Ona'ah and Rivis (see 61a).
Similarly, the RASHASH in Kesuvos (18a) and the KEHILOS YAKOV (Bava Kama #1)
suggest that the prohibition to cause damage is learned from the Mitzvah of
Hashavas Aveidah; if one is obligated to return another's property, then one
certainly is not allowed to harm another's property.
3. The YAD RAMAH (Bava Basra 26a, #107) writes that the prohibition to
damage another's property is learned from "Lifnei Iver Lo Siten Michshol"
(Vayikra 19:14) and "v'Ahavta l'Rei'acha Kamocha" (Vayikra 19:18), Mitzvos
that teach moral obligations.
As the BRISKER RAV (beginning of Hilchos Nizkei Mamon) explains, the Rif was
not satisfied with Rashi's explanation, because if a Toldah is completely
exempt from liability, then it should not be called a Toldah altogether.
Therefore, he preferred to explain that the Gemara's question is whether the
Toldah has certain leniencies that the Av does not have.
Why did the Rif need to point out that the Av of Keren Tamah pays Chatzi
Nezek? Even if there would be no Av that pays Chatzi Nezek, we should still
question whether the Toldos are dealt with more leniently than the Avos and
one only needs to pay Chatzi Nezek instead of Nezek Shalem for them?
The ROSH answers that had we not found an Av that has these leniencies, we
would not have questioned whether the Toldah has original leniencies of its
own. Once we find that it is possible for a Mazik to pay in such a manner,
we are willing to consider the possibility that a Toldah pays in such a
manner. (The NACHALAS DAVID offers a similar explanation, although he does
not understand this to be the intent of the Rosh.)
(c) The BRISKER RAV interprets the Rif's words differently. He points out
from a number of Gemaras and Rishonim that there are times when it seems
that a Mazik which is learned from a Binyan Av *could* be more severe than
the Avos from which it was derived. To explain this, he suggests (as the
Gemara concludes on 5b) that the Torah did not write the various Avos in
order to teach their basic obligation, since it is possible to derive the
basic obligation for all of them through a Meh Matzinu from Keren and Bor.
Rather, the Torah writes the Avos in order to teach the specific leniencies
that apply to each one (for example, that one pays Chatzi Nezek for Keren
when it is a Tam, that one is exempt for Shen and Regel in Reshus ha'Rabim,
that there is no liability for a Bor that damages Adam or Kelim, and that
there is no liability for an Esh that damages items that are hidden,
The Brisker Rav suggests that according to this, the specific exemptions and
leniencies should apply only to a Mazik that bears the "Shem Av" of the Av
for which the leniency was originally given. Therefore, if a Mazik is
derived through a Meh Matzinu between Keren and Bor, since it is does not
have the title, or "Shem Av," of Keren nor the title of Bor, its laws will
be more strict than the laws of both Keren and Bor and it will be liable in
This, he suggests, is the intention of the Rif. According to the Rif, the
Gemara is asking whether the Toldos have the "Shem Av" of their respective
Av, and therefore a Toldah of Keren, for example, pays Chatzi Nezek, or
whether they do not retain the "Shem Av" and therefore a Toldah of Keren
pays Nezek Shalem.