## Tosafot on Bava Kamma Daf 13a

###### Tosafot on Bava Kamma 13a:19:1
[Tosafot on Bava Kamma 13a:19:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/13a:19:1)

אי אליבא דרבנן. פי' בקונט' אי אליבא דרבנן דפליגי עליה דרבי נתן בפ' הפרה (לקמן בבא קמא נג. ושם) גבי שור שדחף חבירו לבור ואמר [בתם] דבעל השור משלם מחצה ובעל הבור פטור אלמא כי ליכא לאשתלומי מבעל השור לא משתלם מבעל הבור ואע"ג שבו נמצא ההיזק ופשיטא דאין גובה מבשרו כנגד אימורין עכ"ל משמע מפירושו שהשור עושה כל ההיזק ובעל הבור אין עושה כלום הלכך שור מועד משלם נזק שלם ותם חצי נזק ולכך לא מצי למידק אלא מתם ולא ממועד וכן פי' בהדיא לקמן בפ' הפרה (שם ד"ה את) וז"ל אבל רבנן בתר מעיקרא אזלי וסברי דבעל השור כוליה הזיקא קעביד הלכך במועד בעל השור משלם נ"ש ובתם משלם חצי נזק (ובעל השור) ופלגא מפסיד וקשה לר"י היכי דייק דאין גובה מבשרם כנגד אימוריהן מדלא משתלם מבעל הבור כלום בתם שמפסיד פלגא דהתם משום שהבור לא עשה ההיזק כלל אבל בשלמים שהבשר עשה כמו כן היזק כיון דליכא לאשתלומי מאימורין משתלם מן הבשר דעל כרחך ס"ל השתא שנים שהזיקו האי כוליה הזיקא עבד והאי כוליה הזיקא עבד כיון דלא אסיק אדעתיה טעמא דתורא בבירך אשכחתיה דאי כל חד וחד פלגא הזיקא עבד למה ישלם בתם לרבי נתן בעל הבור שלשה חלקים דהיינו יותר ממה שהזיקו ובלא טעם אין לנו לומר כדמוכח בהפרה ועוד מנא ליה לגמרא דלרבנן בתם משלם בעל השור מחצה ובעל הבור פטור דלמא בתם בעל השור משלם מחצה ובעל הבור משלם מחצה ורבנן דאמרי ובעל הבור פטור איירי במועד ונראה לר"י דרבנן דאמרי בעל השור חייב ובעל הבור פטור היינו דבעל השור משלם מחצה במועד ובתם רביע ובעל הבור פטור לגמרי שלא חייב הכתוב בור אלא היכא דנפל ממילא דכתיב ונפל שמה שור אבל אם אחרים מפילים אותו בבור פטור בעל הבור והכא ה"פ הא אמרי כי ליכא לאשתלומי מבעל הבור לא משתלם מבעל השור אע"ג דס"ל האי כולא הזיקא עבד והאי כו'. ופשיטא דאין גובה מבשרן כנגד אימוריהן ומאי קמ"ל רבי אבא וא"ת מנליה דהא דקאמרי רבנן ובעל השור חייב לאו היינו דחייב הכל וי"ל דאי הוו פליגי רבי נתן ורבנן בתשלומי השור הוה להו לפרש ומדלא פירשו ש"מ מודו לרבי נתן בהא ועוד דאם איתא דמחייבי רבנן הכל לבעל השור ה"ל לר' נתן למימר דאין משלם אלא מחצה:

**Tosafot, Translated by Jan Buckler.:**
**If [it is] in accordance with the Rabbis.** In order to avoid confusion, see Rashi here **ד"ה אי אליבא דרבנן** where he says that according to the Rabonon a muad who pushes another ox into a bor must pay half of the damages and a tam pays only a quarter and the bor owner is exempt. See Maharam as indicated in the gloss who says that this is a misquote of Rashi, as can be seen from this Tosafot, where Rashi is quoted as saying that a muad must pay the entire damages and a tam pays half. This point is central to Tosafot’ critique of Rashi as we will soon learn.
The Gemara is analyzing R’ Abo’s statement that when a sh’lomim damages, payment is made from its flesh and not from its sacrificial parts. Ultimately the Gemara interprets this statement as teaching us that the victim cannot collect from the flesh for the damage attributable to the sacrificial parts.
For example: the flesh of a sh’lomim is worth one hundred fifty dollars and its sacrificial parts are valued at fifty dollars. The damage was one hundred dollars. There quarters of the damage is attributed to the flesh and one quarter to the sacrificial parts. The victim can collect only half of the damage that is attributable to the flesh, which is seventy five dollars. See Rambam, laws of nizkay momon 8, 3, who says that the victim can eat half of the flesh of the sh’lomim. Even though all of the flesh of the animal participated in the damage, one cannot collect that portion of the damage which is attributable to the sacrificial parts from the flesh. The victim will lose twenty five dollars.
The Gemara views this situation as if there are two partners jointly damaging the victim shor. This situation is comparable to a dispute between the Rabonon and R’ Nosson later on 53a that deals with damages that are done by two parties, an attacking ox and a bor. An attacking ox pushed his fellow ox into a bor. The Rabonon hold that only the shor owner is liable and R’ Nosson holds that there is shared liability. The Gemara wonders why R’ Abo needed to teach us this ruling that the flesh does not assume the liability of the altar parts, and examines his statement in view of the dispute between the Rabonon and R’ Nosson.
In order to understand this Tosafot properly we must learn the Gemara on 53a together. I will define each step of the Gemara, so that we will be able to refer to it easily as we proceed to learn the Tosafot.
A) The Gemara quotes the Mishna on 52a: An ox upon hearing the sound of a workman digging in the bor fell into a bor. The bor owner is liable.
B) The Gemara asks: Why is the bor owner liable? We should say that the digger caused the shor to fall into the bor. (The digger is not liable because his damage is indirect, however the bor owner should be exempt because the digger caused the shor to fall into the bor.)
C) Rav Shimi bar Ashi answers: This Mishna is the opinion of R’ Nosson who says (as opposed to the Rabonon) that the bor owner does damage and when one cannot collect from one of the partners, the digger (because his action was indirect), the payment is extracted from the other partner, the bor owner.
D) The Gemara explains Rav Shimi: As we learned in a Braita: an attacking ox that pushed a victim ox into a bor, the shor owner is liable and the bor owner is exempt. R’ Nosson says: the shor owner pays half and the bor owner pays half.
E) The Gemara asks: But we have learned in another Braita that the shor owner pays a quarter and the bor owner pays three quarters?
F) The Gemara answer: There is no contradiction. The Braita that says the shor owner pays a quarter and the bor owner three quarters is speaking about a tam. The Braita that says each pays half is speaking about a muad.
G) The Gemara asks: What does R’ Nosson hold about a tam? If he holds this one did the entire damage and this one did the entire damage, the tam should pay half, because he is liable for half of the total damages and the bor owner should pay half. And if he holds that each partner did half of the damage, the shor should pay a quarter and the bor a half and the other half should be the victim’s loss!
H) Rovo answers: R’ Nosson was judge and plumbed the depths of the law. Actually he holds that each of the partners did the entire damage and as to your question: each one should pay half? That is not so because the shor tam owner says to the bor owner: If I pay half what did my partners help me? Did I gain anything by your being involved in the damage? (The exact meaning of Rovo’s answer will be discussed on 53a.)
I) Alternatively, Rovo answers: Actually, R’ Nosson holds each partner does half the damage. And as for your question: The bor owner should pay half and the shor owner a quarter and the last quarter should be the loss of the victim? This is not so, because the victim shor owner says to the bor owner: I found my victim shor in your bor. You killed him. What I can collect from the shor owner, I will collect. What I cannot collect from him, I will collect from you! (The exact meaning of Rovo’s answer will be discussed on 53a. See Tosafot there **ד"ה לעולם**)
The Gemara there on 53a has a lengthy discussion about how we view this damage. (G) Do we say that each of the parties, the attacking shor and the bor, each contributed half of the force that killed the victim ox and there should be shared liability, or do we say that each party independently contributed sufficient force to kill the victim ox, and there should be double liability. Obviously the victim need not be paid twice. We will soon see in this Tosafot that the concept of double liability might be applied when full payment cannot be extracted from one of the parties. Will the other party have to pay in full, since we do attribute all of the damage to both parties? An in-depth study of that Gemara would be very helpful in understanding this Tosafot.
**Rashi explains: If he,** R’ Abo,**follows** the opinion **of the Rabonon, (D) who argue with R’ Nosson, in Perek Haporoh (below 53a), in regard to an ox who pushed his fellow** ox**into a bor, and they,** the Rabonon,**say that a [tam]** ox**pays half** of the damages**and the bor owner is exempt,** so**we see that when one cannot be paid** the second half of the damages **from the shor owner** because his shor is a tam and he is only liable for half payment, **he,** the victim,**is not paid from the bor owner, even though**¹**it was in it,** the bor,**that the damaged** shor **was found.
And** if so, **it is certain that** when comparing the case of sh’lomim that damaged to the attacking ox and the bor one must conclude that **one cannot collect the corresponding** share of the damages attributable to **the sacrificial parts from the flesh.** **Until here is his,** Rashi’s, wording,

**משמע מפירושו שהשור עושה כל ההיזק ובעל הבור אין עושה כלום**

It is to be understood from Rashi’s explanation that the shor, who pushed his fellow ox into the bor, **does all of the damage and the bor owner does nothing** of the damage.
**Therefore, the muad shor pays in full and the tam shor pays half damages** and the bor owner is exempt.**
It is for this reason that he can deduce** that when one is not paid from one of the partners to the damage, he is not paid from the other, such as in this case where the victim is paid only half from the shor owner and is not compensated at all from the bor owner, **only from the case of the tam, who pays only half, and not from the muad, who pays in full.** Since the muad pays in full, there is no reason to collect from the bor owner.
**So too, does Rashi clearly explain later in Perek Haporoh (53a, Rashi ד"ה את).**

**וז"ל אבל רבנן בתר מעיקרא אזלי וסברי דבעל השור כוליה הזיקא קעביד הלכך במועד בעל השור משלם נ"ש ובתם משלם חצי נזק (ובעל השור) ופלגא מפסיד**

**And this is his wording: But the Rabonon**² **rule** on the basis of the **initial** contact between the two oxen, **and they hold that the shor owner did the entire damage. Therefore,** when the attacking shor is**a muad, the shor owner pays in full and** when the shor is**a tam, he,** the shor owner,**pays half and** the victim shor owner**loses half.
**We must now keep in mind that the Gemara has drawn a comparison between the sh’lomim that damaged, where there are two ‘partners’ to the damage, the flesh and the sacrificial parts and the shor that pushed its fellow shor into a bor where there are also two partners to the damage, the attacking shor and the bor. The flesh is comparable to the attacking shor and the sacrificial parts to the bor.
Tosafot will now present his difficulties with Rashi’s position:**
And this is difficult to R’I: How does the Gemara deduce that one cannot collect** damages **from the flesh** of the sh’lomim that **corresponds to the altar parts, from the ruling that the victim shor owner is not paid anything from the bor owner when** the attacking shor **is a tam and he,** the victim,**loses half? For there** in the case of the attacking shor who pushed the victim shor into a bor, the bor owner is exempt **because the bor did not do the damage at all** according to Rashi’s explanation.
**However, in the case of the sh’lomim** that damaged,**where the flesh also** involved in the **damage** as much**** as the sacrificial parts, we might rule that **when payment cannot be made from the sacrificial parts,** because they must be burned on the altar,**one should be paid from the flesh,** which was equally involved in the damage, whereas in the case of a victim ox pushed into a bor by an attacking ox, it is only the attacking ox that damaged and not the bor, therefore the bor owner need not pay, even when payment cannot be extracted from the attacking shor.
It seems that there is no basis for a comparison between the flesh of a sh’lomim and the bor owner of the Braita on 53a, according to Rashi’s explanation of the Rabonon. The bor did not participate in the damage while the flesh parts of the sh’lomim definitely did.
Tosafot holds at this point in the Gemara³ it is only possible to say that if the damage cannot be paid from one of the partners, i.e. from the sacrificial parts, it must be paid from the other partner, i.e. the flesh, only if we think of each partner to the damage as doing the entire damage. It is because of the concept of double liability that we can entertain the idea that if payment cannot be extracted from one of the partners, the other partner must pay in full because he did the entire damage. If we should hold that each party to the damage does only half of the damage, that is the flesh did half of the damage and the sacrificial parts did the other half, it is impossible to require that the owner of the flesh pay more than it actually damaged. This approach to understanding damages caused by two parties is discussed at length later on 53a, where the Gemara debates this issue. (G)
Tosafot therefore, needs to prove that at this point the Gemara does in fact hold that each partner to the damage, does the entire damage.
**For it is compelling that the Gemara now holds that when two parties damaged,** we view it as if **this one did the entire damage and that one did the entire damage, since the Gemara at this point did not yet think of the reason** mentioned later, that the shor victim’s owner can say: **I found my ox in your bor.** A bit later the Gemara will introduce this thought into the argument, but at this point, the Gemara was unaware of it. If so, the Gemara could not have held that each of the partners to the damage only does half of the damage.
**For if each individual** damaging partner**does only half of the damage, why, when** the ox is**a tam, should the bor owner pay three quarters according to R’ Nosson, which is more than it actually damaged?
And without an** overriding**reason,** such as the Gemara eventually says: “I found my victim shor in your bor”, which the Gemara was as of yet unaware,**we should not say** that one of the parties should pay more than it actually damaged**as is evident in** Perek **Haporoh.
**The Gemara there asks: (G) If we hold that each partner to the damage, such as in the case of an attacking shor that pushed a victim shor into a bor, only does half of the damage, why does R’ Nosson hold that the bor owner must pay three quarters of the damage? We see that the Gemara holds that logically one cannot be held responsible for more than he actually damaged. The Gemara then (I) introduces the thought that the victim shor owner can argue “I found my shor in your bor etc.” It is only after the Gemara cites this argument that it can accept the idea that the bor owner might pay more than it actually damaged. In our Gemara this thought is first introduced later. At this point the Gemara was unaware of it. If so how could the Gemara possibly understand that R’ Nosson holds that the bor owner must pay more than half, if it does not hold that each party does the entire damage?
Tosafot introduces another difficulty that R’I has with Rashi’s explanation. We must keep in mind that Rashi’s explanation is built upon his interpretation of the position of the Rabonon that when a shor muad pushes his fellow shor into a pit, the shor owner must pay in full and when the attacking shor is a tam he pays only half. What is the basis for this interpretation?
**And furthermore: How does the Gemara know that** according**to the Rabonon, when the attacking shor is a tam that the shor owner pays half and the bor owner is exempt?** This is the ruling Rashi uses as proof that the Rabonon hold that even when full damages cannot be extracted from the shor owner, the bor owner need not pay.
**Perhaps, when the attacking shor is a tam, the shor owner pays** only**half and the bor owner pays** the other **half?** Thus the basis for Rashi’s proof that when payment cannot be extracted from the tam shor owner, the bor owner need not pay, is unfounded. **And the Rabonon who say that the bor owner is exempt are speaking of** when the attacking shor**is a muad.** Since the Rabonon hold that it is the attacking shor that killed the victim shor, the muad pays in full and the bor owner is exempt. However, when the attacking shor is a tam, and he pays only half, the bor owner does in fact have to pay half precisely because full payment cannot be extracted from the tam’s owner.
Tosafot has now explained his logical argument with Rashi’s explanation and also his apprehension with Rashi’s source.
R’I offers his explanation of our Gemara:
(Note that R’I’s explanation is based on an understanding of the Rabonon’s position that appears in our text of the Rashi.)
**And it appears to R’I that the Rabonon who say: (D) The shor owner is liable and the bor owner is exempt,** mean**that the** attacking **shor owner pays half for a muad and for a tam he pays a quarter, and the bor owner is totally exempt,** in either case**because the Torah holds the bor owner liable only when the shor fell in on its own, as is written** (Shemot 21, 33) **“and a shor will fall there –** into the bor”, **but when others push him,** the shor,**into a bor, the bor owner is exempt.
**Tosafot has informed us of the source for the exemption of the bor owner when an animal is pushed into his bor. This differs with Rashi’s explanation that the reason for the exemption is because the bor did not do the damage. But we must still know how we see from the Rabonon, that when payment cannot be extracted from one of the partners to the damage that the other need not pay. If we maintain that this is seen from the fact that the bor does not pay for half when the shor is a tam and only pays half, then we have not solved Tosafot’ initial problem with Rashi’s explanation. Tosafot argued that the reason for the bor owner’s exemption is because the bor did not participate in the damage, but according to Tosafot as well, there is a reason to exempt the bor owner and that is because the Torah specifically exempted him. How do we see that when there is no specific exemption, such as when the flesh of a sh’lomim participates in damaging that the flesh owner need not pay for the damage done by the sacrificial parts? Tosafot will now deal with this issue:**
And here** where the Gemara is attempting to prove that the Rabonon hold that when one cannot be paid from one partner, he cannot extract payment from the other partner, **this is the explanation: but they,** the Rabonon, **say, when one cannot be paid from the bor,** because he is exempted by the verse,**he,** the victim owner,**is not paid** the second half**from the shor owner, even though they,** the Rabonon,**hold that** in a damage by partners, **this one did the entire damage and this one etc.** (did the entire damage). We see from the fact that the shor muad owner does not pay full damages even though we view his ox’s involvement as doing the entire damage, that when there are partners to a damage and payment cannot be extracted from the bor owner, because of his specific exemption, the shor owner need not pay in full.
By comparison **it is plain that we do not collect from the flesh** of a sh’lomim **for the corresponding sacrificial parts.** If so, **what is R’ Abo teaching us?
**Tosafot explanation is based on interpreting the statement of the Rabonon as saying that the shor muad owner is only liable for half, as opposed to Rashi who says that he is fully liable. It is from the half liability of the muad shor owner that Tosafot proves that he does not assume the obligation for payment of the second half from the bor owner.
On 53b, (D) where the Braita informs us of the dispute between the Rabonon, the Braita clearly says that according to R’ Nosson the shor owner pays half. The opinion of the Rabonon is a bit vague. The Rabonon there say that the shor owner is liable and the bor owner is exempt. The extent of liability according to the Rabonon is not clarified within the Braita.
**If you ask: How does the Gemara know that the statement by the Rabonon, “and the shor owner is liable” does not mean that he is fully liable?** Perhaps it means that he is fully liable as Rashi says and the Gemara’s proof is from when the attacking shor is a tam, who pays only half, as Rashi said?**
We can answer: That if the Rabonon and R’ Nosson were arguing about the extent of the payment of the shor owner, they,** the Rabonon,**should have clarified** their position, **and since they did not clarify, we can assume that they agree with R’ Nosson on this** issue, the half liability of the shor owner.
And furthermore, there is another reason the Gemara assumes that the Rabonon agree with R’ Nosson that the shor muad owner pays only half, **for if it is so that the Rabonon hold the shor owner liable for the entire** damage**, R’ Nosson should have said that he is liable only for half.** His statement that “the shor owner is liable for half” is viewed as proof that there is no dispute between him and the Rabonon in this matter.
Thus, we have a clear statement from the Rabonon that when the attacking shor is a muad, his owner pays only half and the bor owner pays nothing. Why doesn't the shor owner pay the second half since the Gemara at this point holds that each partner does the entire damage? It is evident that the Rabonon hold that when payment cannot be extracted from one of the partners of the damage, it is not extracted from the other. So too, when a sh’lomim damages and payment cannot be extracted from the sacrificial parts because they are burned on the altar, payment is not extracted from the flesh owner to cover the corresponding sacrificial parts.

footnotes:
¹ The Gemara will introduce this thought into the give and take of the discussion at a later point in the Gemara. At this point the Gemara was as of yet unaware of this argument as Tosafot will soon explain. See Tosafot 53a ד"ה לעולם for a thorough explanation of this argument.
² בתר מעיקרא אזלי -- literally means ‘they go according to the beginning’. Our translation intends to make the meaning of Tosafot as clears as possible.
³ The Gemara has not yet introduced the claim – ‘I found my victim ox in your bor’. It is only after the Gemara introduces this claim on 53a, that the Gemara can tolerate the idea that the bor owner might have to pay three quarters of the damages, even though he is responsible only for half. See next Tosafot.


###### Tosafot on Bava Kamma 13a:23:1
[Tosafot on Bava Kamma 13a:23:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/13a:23:1)

אנא תוראי בבירך אשכחתיה - ודוקא גבי בור קאמר דמשלם אע"ג דכל חד וחד כולא הזיקא עבד שייך לחלק בין שור לבור מהאי טעמא ומיהו כיון דידע טעם דתוראי בבירך אשכחתיה מצי למסבר נמי דכל חד וחד פלגא דהזיקא עבד כדאמרינן בהפרה (שם) ושם אפרש בע"ה:

**Tosafot, Translated by Jan Buckler.:**
**I found my ox in your pit.** The Gemara is saying that R’ Abo who teaches that one cannot collect the damages attributable to the sacrificial parts from the flesh may follow the opinion of R’ Nosson, who holds that the bor owner does in fact pay for the damages done by the tam ox together with the bor when payment cannot be extracted from the tam ox. That is because the bor can be designated as the primary damager since the carcass of the dead victim shor is located in the bor.
However, in the case of the sh’lomim that damaged, neither partner can be designated as the primary damager, thus the damages attributable to the sacrificial parts cannot be collected from the flesh.
 **It is specifically in regard to bor that he,** R’ Nosson,**says that the bor owner pays** the portion of the damage that the shor owner does not pay, even though we hold that**each of the partners does the entire damage,**¹**and the paying party should assume the payment of the non-paying partner, because he did in fact do the entire damage,** it is possible to distinguish between shor and bor for this reason that the carcass was found in the bor which designates the bor as the primary damager, but when there is any other equal partnership such as the flesh and sacrificial parts of a sh’lomim one of the ‘partners’ does not assume the obligations of the other partner.
**However, as soon as the Gemara knows the logic of** the argument **‘I found my victim ox in your bor’, the Gemara can hold that each of the partners does only half of the damage, as the Gemara says in Haporoh (ibid.), and I will explain** this matter **there, with the help of Hashem.**

footnotes:
¹ Tosafot is struggling with an extremely difficult problem. We have mentioned earlier that if we believe that each partner does the entire damage, there is double liability. As we explained earlier, this does not mean that the victim should be paid twice, but it does mean that if one of the partners cannot pay for whatever reason, the other partner should pay in full because he did in fact do the entire damage. At this point in the Gemara, Tosafot previously said, the Gemara subscribes to the concept of double liability. If so why should the rule that one partner assumes full liability be limited to a bor when it is a partner with a shor, it should theoretically apply to any combination of partners. See אוצר מפרשי התלמוד on this Tosafot and in note 166, where he quotes ברכת שמואל סי' י'ב who discusses this problem and Tosafot solution. We can now understand why Tosafot suggests that at this point the Gemara may be working with the opposing opinion that each ‘partner’ contributes only half of the damage.