## Tosafot on Bava Kamma Daf 4b

###### Tosafot on Bava Kamma 4b:2:1
[Tosafot on Bava Kamma 4b:2:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/4b:2:1)

ואימא מבעה זה המים - פי' כיון דקרא לא דייקי לא כמר ולא כמר וא"ת והיכן כתיב מים בתורה וי"ל מושלח וכן הוא אומר (איוב ה׳:י׳) ושולח מים על פני חוצות ואע"ג דשילח בעירה בבהמה איירי מ"מ מים נמי משתמעי מיניה מדאפקיה רחמנא בהמה בלשון ושלח ולעיל דבעי במאי מוקמינן לה לא מצי מוקמינן במים דכי נמי מוקמת במים אית לן לאוקומי במילי דשור מדכתיב בעירה וא"ת והני מים ה"ד אי דמשקיל עליה בדקא דמיא ובכח ראשון כחו הוא ואי בכח שני גרמא בעלמא הוא כדאמרינן בהנשרפין (סנהדרין דף עז:) וי"ל דמיירי בכח שני וקמ"ל דבכח שני נמי חייב א"נ בתר דנחו ולא דמי לבור כגון פותקין ביבותיהן דלקמן (בבא קמא דף ל.) ואע"ג דאתי במה הצד הוה אמינא דאיצטריך לכותבו לחייב כלים דמבור לא הוה שמעינן והוה מצי למיפרך מאי לא זה וזה שיש בהן רוח חיים אלא דבלאו הכי משני שפיר:

**Tosafot, Translated by Jan Buckler.:**
**But [why not] say [that] Maveh, this is [the primary category of damage caused by] water?** Tosafot wants to show that this question was not asked arbitrarily, rather, there is a legitimate basis for this question. **The explanation** of why this question is asked is as follows: **Since the verses** quoted to substantiate the meaning of the word מבעה**are not precise, neither** **according to Rav nor Shmuel,** it is reasonable to ask if perhaps there is a totally different meaning.
Granted that there is reason to believe that **מבעה** may have some other meaning, it would still not be justified to ask if perhaps it means water, unless there is a source in the Torah that water is in fact one of the damagers.¹
**And if you ask: and where is water written in the Torah** as a damager? **And we can answer:** the source is from ושלח, and where do we see that ושלח relates to water?**And so it says in Iyov 5, 10,** as he describes the wondrous deeds of G-d, “**and he sends waters over the open country”.** The phrase “he sends” is used together with water. So too, when the Torah uses the word ושלח, it refers to one who damages by “sending” water.**
And even though the phrase “ושלח-he sent”** in the Torah **is speaking of an animal,** because the word בעירה used in the verse means an animal, **even so, we can also learn** that **water** is a damager, **since the Torah expresses** the concept of an**animal** damaging with **the phrase “he sent”.** In order to express the idea of an animal damaging by regel, the Torah did not have to use the term “he sent”. There are more efficient ways of expressing that thought. Since the Torah did use the term “he sent” which can be interpreted as referring to water based on the verse in Iyov, we say that the Torah especially used this expression to teach us that water is also a damager.
The Gemara earlier on 4a, asked: if we had no verse to prove that **ושלח** refers to regel, what else could it mean? It seems that there is nothing else that it could have meant, but at this point in the Gemara we are entertaining the idea that **ושלח** may refer to water. Why was the Gemara on 4a not thinking of the possibility that **ושלח** means water?
**And earlier when the Gemara asked: what could it, ושלח, mean? The Gemara could not have said that it means water, because even if one says ושלח means water, we must still say that it means something that relates to an animal since the word בעירה, his animal, is written** in the verse.
Now that Tosafot has determined a would-be source for water as one of the primary damagers, he turns to the practicality of what this damager would be as compared to the other primary damagers.
**And if you ask: And these waters** that are to be included as a damager, **what are the circumstances** that cause liability? **If he turned the flow of the water** of a river or a stream upon it, the object that was destroyed, **and the water fell upon it immediately, that is his,** the person’s, **power** and he is liable as a person who damages. **And if it was a secondary power,** the water did not immediately fall on the object as it came out of the stream but it started to flow in a new direction and at some distance from the stream it damaged the object,**that is merely indirectly causing** a damage and one is not liable for that as the Gemara says in HaNisfrafin (Sanhedrin 77b).²
**And we can answer: that it is speaking** when the water is **a secondary power, and the** Torah **is letting us know that for a secondary power one is also liable.** The Gemara in Sanhedrin quoted earlier which says that a secondary power is merely indirectly causing a death, is speaking after the fact that water is not one of the damagers. If water had been one of the damagers, the Gemara there would not have concluded that one is not liable for causing a death through a secondary power.
Tosafot offers a second option of how the damager water would be liable if the conclusion of the Gemara was that water was indeed a primary damager.
**Alternatively,** the Torah is telling us that water is a damager **after it comes to rest** in a public domain.**But it is not the same as bor** and could not be derived from bor, **as we find (later 30a) that when one opens waste pipes** to the public domain that eventually damage others he is liable for the damage that was caused even after they came to rest. This cannot be derived from bor, since opening waste pipes is permissible during the winter. So too, the water under discussion could not be derived from bor, because it is permissible to bring water into the public domain.
But the Gemara does derive that one is liable for opening waste pipes from the common characteristic method.³ Why can't we derive water from that same common characteristic method?
**And even though, it,** water that rests in a public domain, **could be derived from the common** characteristic method, as the Gemara on 6a says that opening the waste pipes is derived from shor and bor. So too, water that has come to rest in a public domain could be derived from that very same common characteristic method. Even so, **it is necessary** **to write** a new av of water **so that one will be liable for** the destruction of**vessels, for this could not be derived from** any derivation using**bor** as a source, since bor is exempt for damaging vessels.
Tosafot has now explained why the Gemara asked: and perhaps **מבעה** refers to water? We have also learned how **מבעה** could be derived from verses in the Torah and we have seen the circumstances under which one would be liable for this new av. However, ultimately the new av could not be what was meant by the Mishna.
**And the Gemara could have refuted** the contention that **מבעה** means water by asking: **what is meant** by the Mishna’s phrase, when referring to shor and maveh, **neither shor nor maveh that have a spirit of life** is like fire which does not have a life spirit? If maveh is water, that too does not have a spirit of life.⁴ **However,** the Gemara did not raise this question **because even without it, the Gemara answers** the original question; perhaps maveh means water,**correctly.**

footnotes:
¹ The Rashba disagrees with this position. He says that the Gemara’s point in asking the question may be to bring out that since the basis of Rav and Shmuel’s opinions are somewhat vague, perhaps we should consider water and fire. This does not mean that the Gemara had a detailed system of how this would work, as it does according to Tosafot.
² The Gemara there in Sanhedrin is discussing a murder case. Reuven drowned Shimon by redirecting the flow of a river to where Shimon was tied up. The Gemara says that if Shimon was drowned by a first power, the water came out of the river and immediately fell on Shimon, That is Reuven’s power and he is definitely liable. If however, the water flowed some distance before reaching Shimon, that is a secondary power and Reuven is not liable.
³ See Tosafot 2a ד'ה לא הרי.
⁴ Chasam Sofer says that this last statement of Tosafot is true only according to the second proposal of Tosafot that water is a damager after it came to rest. At that point it has no spirit of life. However according to Tosafot first proposal that the water is damaging as it moves either by a primary or secondary power, that can be considered a spirit of life because it is an extension of the person who caused the water to flow there.


###### Tosafot on Bava Kamma 4b:2:2
[Tosafot on Bava Kamma 4b:2:2](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/4b:2:2)

מי כתיב מים נבעו - וא"ת כי כתיב נמי נבעו לא מיתוקמא מתניתי' במים דמי קתני נבעה כדדייק לעיל (בבא קמא דף ג:) גבי שן וי"ל דלא שייך לאקשויי אלא גבי שן דליתני נבעה שהשן עצמו נבעה דמבעה משמע מגלה [דבר אחר שהיה מכוסה] אבל במים שייך שפיר לישנא דמבעה שהמים רותחים קרויים מבעבעים:

**Tosafot, Translated by Jan Buckler.:**
**Is it written: water boils?** See Artscroll note 5. The Gemara is rejecting the contention that maveh is water because the verb in the verse is not referring to what happens to the water rather the verb is referring to the activity of the fire. If the verb**נבעו** was used it would refer to the water and we could then say that maveh of the Mishna refers to water.
**And if you ask:** Even**if the verse had written נבעו,** which refers to the water, **it still could not be said that our Mishna is discussing water. Does our Mishna use the word נבעה,** which would show that the word was derived from that verse in Yeshayahu 64? Which is the very question **that the Gemara asked earlier (3b) about** the opinion that maveh is **shain.** Does the Mishna use the word נבעה? Since our Mishna uses the word maveh it obviously is not referring to the verse in Yeshayahu 64.
Earlier the Gemara said that maveh may mean shain because we find that the word **נבעו** means to uncover something that had been covered. While shain is eating, the tooth that had been covered is uncovered and therefore the term **מבעה** may refer to shain.
**And one can answer: that it is not logical to ask** “does the Mishna say נבעה?”**only when analyzing shain.** The context of the question is **let the Mishna use the word נבעה which implies that the tooth itself is uncovered in the process of eating,** whereas**the word מבעה means that it uncovers [something else, which had previously been covered]** which is not true of shain. It does not uncover something else in the process of eating. **However,** as far as **water is concerned, it is quite logical to use the term מבעה, because piping hot water is called מבעבעים.** The term מבעה can be referring to what happens to the water as opposed to shain, where the term מבעה cannot be referring to what happens to the shain.


###### Tosafot on Bava Kamma 4b:5:1
[Tosafot on Bava Kamma 4b:5:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/4b:5:1)

שלשה עשר אבות נזיקין - ודיניהם י"ב דשוכר כשומר שכר הוי או כשומר חנם הוי:

**Tosafot, Translated by Jan Buckler.:**
**[There are] thirteen primary categories of damage.** Although there are thirteen primary damagers, there are only **twelve sets of laws** governing them, **because a lessee** has the same laws **as a paid guard** according to some **or an unpaid guard** according to others.¹

footnotes:
¹ Later on 45a, there is a dispute between R’ Yehuda and R’ Mayer about the laws governing a lessee. There is another dispute among the amoraim about who holds that he has the laws of an unpaid guard and who holds that he has the laws of a paid guard.


###### Tosafot on Bava Kamma 4b:5:2
[Tosafot on Bava Kamma 4b:5:2](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/4b:5:2)

שומר חנם והשואל - שומר חנם פטור מן הכל חוץ מן הפשיעה שואל חייב בכל חוץ ממתה מחמת מלאכה ונושא שכר חייב במקצת בגניבה ואבידה ופטור באונסין לכך נקט להו בזה הסדר ולא כסדר שנכתב בפרשה:

**Tosafot, Translated by Jan Buckler.:**
**[The] unpaid guard and the borrower.** The order in the Torah for the guards is:
1) שומר חנם – unpaid guard
2) שומר שכר – paid guard
3) שואל – borrower
4) שוכר – lessee
The Braita when presenting the guards does not follow the order of the Torah. What logical order is it following?
**An unpaid guard is not liable for any occurrences** such as theft, loss and unavoidable accidents,**except for negligence.** By contrast,**a borrower is liable for all occurrences** even accidents, **with the exception of the animal dying because of labor** it was doing. These are the extremes; the paid guard is somewhere in the middle.
**And a paid guard is liable for some occurrences such as theft or loss and is not liable for accidents. This is why the Braita mentioned them in this order and not in the order in which they are written in the parsho.**


###### Tosafot on Bava Kamma 4b:7:1
[Tosafot on Bava Kamma 4b:7:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/4b:7:1)

תרי גווני אדם - וא"ת כיון דתני תרי גווני אדם ליתני נמי ג' אבות בשור הקרן והשן והרגל וי"ל דניחא ליה לכלול כולם בשור כמו תנא דמתני':

**Tosafot, Translated by Jan Buckler.:**
**Two types of a man who damages.** In response to the question, why does the Braita mention a person who damages and the list another series of ways that a person damages, the Gemara answered we are speaking about two distinct cases of a person who damages. The first section of the Braita is referring to a person who damaged an animal, whereas the second section of the Braita is referring to a person who damaged another person. This answer begs another question.
**And if you ask: since the Braita** is being more specific than the Mishna **and taught two** distinct **cases of a person** who damages; **he should also teach** us about **three avos of shor: the keren, the shain and the regel? And we can answer: that the Braita is content to incorporate all** the avos of shor **in shor as did the tanna of the Mishna.**¹

footnotes:
¹ This answer of Tosafot requires some explanation. We still remain with the question why did he treat a person different than he treated the shor. Tosafot could just as easily have said that he wanted to treat the person in the Braita as he treated him in the Mishna and just write a person and nothing more. There must be some reason that he saw fit to elaborate about a person and not to elaborate about shor. The גליון of Tosafot cited in שיטה מקובצת suggests that the distinct laws of keren versus shain and regel are mentioned specifically in the Torah. There is no need for the Braita to bring attention to the distinct avos of shor. He therefore uses the word shor to collectively describe all the avos of shor. However, the difference between a person who damages another person, who must pay the four things and a person who damages an animal, who need not pay the four things is not specifically mentioned in the Torah. It is derived by expounding the verses in Parashat אמור. Since it is not openly written in the Torah, the Braita had to call attention to this by discussing two distinct cases of a person who damages.


###### Tosafot on Bava Kamma 4b:12:1
[Tosafot on Bava Kamma 4b:12:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/4b:12:1)

ועדים זוממין - פירש ריב"א דאפילו שילם על פי העדים זוממין חייבין דלא שייך בממון כאשר זמם ולא כאשר עשה דאפשר בחזרה ור"י מפרש דלא צריך להאי טעמא דגבי ממון מחייבינן להו בק"ו דגבי ממון עונשין מן הדין והא דאמרינן במכות (דף ה:) הרגו אין נהרגים היינו משום דהתם אין עונשין מן הדין:

**Tosafot, Translated by Jan Buckler.:**
**And conspiring witnesses.** Zom’mim witnesses are disqualified by a second pair of witnesses who testify that the first pair could not possibly testify about the subject because they were elsewhere with us, the second pair, at the time the proceeding were supposed to have taken place. The rule of Zom’mim witnesses is that they are penalized with the punishment that they wanted to inflict upon their victim. If they were testifying about a capital offense, they are put to death. If it was a financial matter, they must pay their intended victim the amount that they said he was obligated to pay.
In capital cases there is a very interesting rule for the zom’mim witnesses. They are liable as long as their intended victim has not yet been put to death. If however, he has already been executed, they are not liable for the death punishment. This is derived from the verse that describes their punishment as כאשר זמם as they planned to do, ולא כאשר עשה but not as they actually did. Tosafot discusses the application of this rule to a financial offense. Why does Tosafot choose this venue to discuss this matter? Two reasons are offered by the Acharonim:
A)	The Braita is listing zom’mim witnesses as a damager. If he is liable only when the verdict is not carried out, how can he be listed as a damager? When he actually damaged by having the victim pay, he is not required to pay. When he is required to pay, the victim did not suffer any damages. Since the Braita list him as a damager, it must be that he is required to pay even if the verdict was already carried out.
B) The Gemara later calls the payment of zom’mim witnesses’ ממונא a financial payment as opposed to a קנס a fine. If the rule was that he only pays when the verdict was not carried out, how could one possibly say that this is a financial payment and not a fine? Tosafot needs to show us how we know that they pay even after the verdict has been carried out.
Riva explained: that even if the victim already paid based on the testimony of the zom’mim witnesses, they are liable to pay the victim. The rule “as they planned but not as they did” does not exempt them in financial matters **because the** unjust **payment can be returned to the victim.** Capital punishment is final. It cannot be undone. When somebody pays money on the basis of false testimony, the money can always be returned to its rightful owner. In this context one never really can be exempted because of ולא כאשר עשה, for in financial matters כאשר עשה is never really final.
**Tosafot offers another explanation for the ruling that zom’mim witnesses must pay in financial matters even if the verdict has already been carried out.****And R’I explains that the reason offered** by Riva **is unnecessary, because as far as financial matters are concerned we can hold them liable** for their false testimony **by a kal v’chomer.** If one is liable for planning to wrongly cause his victim to pay, he should certainly be liable if he did already pay. **For in regard to money matters we can punish based on a kal v’chomer.
And that which the Gemara says in that when they already killed the victim, they,** the witnesses, **are not killed, that is because we cannot inflict capital punishment based on a kal v’chomer.** R’I understands that כאשר זמם is not an exemption for one who already did. If it were an exemption it would apply equally to money matters as to capital offenses. Rather, it is a statement that the Torah specifically punished the witnesses when the verdict was not executed. Any other conviction must be based on a new derivation. Kal v’chomer can be used to establish a punishment in money matters, but not in capital cases.


###### Tosafot on Bava Kamma 4b:13:1
[Tosafot on Bava Kamma 4b:13:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/4b:13:1)

מנסך - פליגי בה בהנזקין (גיטין נב: ושם) חד אמר מנסך ממש וחד אמר מערב:

**Tosafot, Translated by Jan Buckler.:**
**One who pours [another's wine] as a libation [for idolatry].**
**There are those who disagree** about the meaning of in this Braita in **One holds** that we are discussing one **who actually pours** wine before an idol as a form of idol worship thus rendering the wine prohibited **and the other holds** that we are discussing**one who mixed wine** that was prohibited because it had been used in the service of idols **together with kosher wine** thus rendering the kosher wine useless.