## Tosafot on Bava Kamma Daf 5a

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

הא תברא ר"ע לגזיזיה - אין לפרש דחזר בו מדקתני שמשלם מגופו דבפ' המניח (לקמן בבא קמא דף לג.) תני בהדיא ר"ע אומר כמשפט הזה כתחתון ולא כעליון יכול ישלם מן העלייה כו' ולפ"ה נמי קשה דפי' אע"ג דזימנין ליכא נזק שלם כגון שהשור אין שוה כדי היזקו מכל מקום ליתני תרי גווני שור כיון דלפעמים איכא נזק שלם וי"ל דכיון דאין משלם אלא מגופו אי אפשר למיתני גבי אבות דאמרינן לקמן כולם כאבות הן לשלם ממיטב:

**Tosafot, Translated by Jan Buckler.:**
**Didn't Rabbi Akiva break [the force] of his fist?** The Gemara has stated that the Braita does not present the opinion of R’ Akiva about an ox that injures a person who is liable for full payment even the first time it damages. Tosafot wants to explain why the Braita cannot present this opinion. We will soon see Tosafot’ objection to Rashi’s explanation.
**One cannot say that because we are taught in the Braita that he,** the tam who injured a person **pays from his body,** which indicates that he is a regular tam who only pays half,we now know that **R’ Akiva changed his mind,** and no longer holds that a Tam that injures a person pays in full.
In Shemot 21, 28, the Torah is discussing an ox that gores a person. First the law of a tam is discussed and then the law of a muad. In verse 31, the Torah says “whether it gores a boy or it gores a girl, in accordance with this law shall be done to him”. Our rabbis disagree about the meaning of “in accordance with this law”.
**For in Chapter Hamaineeach (later 33a), the Gemara clearly states that R, Akiva says** that the payment for a tam that gores a person **is “in accordance with this law” (Shemot 21, 31),** **the law mentioned last in the verse,** the muad that pays in full, **and not the law mentioned first,** the tam that pays half. The same Braita continues, **one might think that he must pay from the choicest etc.** and the Braita proceeds to teach that payment is from its body. We see that the same Braita that teaches us that R’ Akiva holds that the tam that injures a person pays in full also holds that it pays from its body. This disproves the contention that when R’ Akiva realized that a tam pays from its body he retracted about the full payment as well. **And according to Rashi’s explanation there also is a difficulty. For he explained:**¹ **that even though there will sometimes be less than full payment, because the ox is not worth the full value of the damage,** and since there will not always be full payment the Braita does not mention it. This is inadequate; **in any case the Braita should teach two types of shor, because sometimes there will be full payment.** Even though there will not always be full-payment, the fact that there will sometimes be full-payment is sufficient reason for Tam that injures a person to be listed. **And we can answer: that since the tam** that injures a person **pays only from its body, it cannot be listed together with the** other **avos, because later (on this page) we say that they,** those listed in the Braita of R’ Ḥiyya, **are all like avos** in regard to the fact **that they pay from the choicest.** It is only the fact that they pay from the choicest that qualifies them as avos. The tam that injures a person that does not pay from the choicest cannot be listed with the other avos.

footnotes:
¹ The text of Tosafot’ quotation of Rashi is inaccurate. See the gloss on the side of the page. In place of “even though” it should read; “what emerges is” that sometimes the tam will not pay in full but only what the ox is worth.


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

האונס והמפתה והמוציא ש"ר דממונא הוא - מוציא שם רע לית ביה ממונא כלל אלא מאה כסף אלא אגב אחריני נקטיה:

**Tosafot, Translated by Jan Buckler.:**
**The rapist, and the seducer, and the defamer, which are monetary restitution.** The Gemara asked that the rapist, seducer and slanderer be included in the Braisa because there is a payment of damages (shame and a reduction of value) in addition to the fine. Tosafot points out that this is true only in reference to the rapist and the seducer, and not for the slanderer.
For the**slanderer there isn't any financial payment at all, only the hundred silver pieces** and those are a fine. **However the Gemara mentions him,** the slanderer, **because of the others.** This trio usually appears together throughout the Gemara and that is why the slanderer is mentioned here together with the others.¹

footnotes:
¹ See Otzar HaTosafot who quotes Tosafot of Rabbeinu Tam who actually removes the slanderer from the text of the Gemara.


###### Tosafot on Bava Kamma 5a:7:1
[Tosafot on Bava Kamma 5a:7:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/5a:7:1)

המטמא והמדמע - המ"ל דלא תנא להו משום דלא מיחייב בשוגג:

**Tosafot, Translated by Jan Buckler.:**
**One who causes to become ritually impure, and one who mixes.** The Gemara asked that these should also be included in the Braisa of R’ Oshayo. Tosafot says that this question could have been deflected simply.
**The Gemara could have said that they were not listed because they are not liable** when the damage was done**unintentionally,** whereas all the avos are liable when done intentionally or unintentionally.
 Since they need not pay if the damage was unintentional and thus they are different than the other Avos mentioned in the Braisa.


###### Tosafot on Bava Kamma 5a:9:1
[Tosafot on Bava Kamma 5a:9:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/5a:9:1)

דאי שמיה היזק - ואע"ג דחזקיה דאמר שמיה היזק איתותב בהניזקין (גיטין דף נג:) מ"מ ניחא ליה לאוקומי ברייתא דרבי חייא אביו אליביה:

**Tosafot, Translated by Jan Buckler.:**
**If it were recognized as damage.** The Gemara seems to be upset with the fact that R’ Chiya’s Braisa would hold that unrecognizable damages are not considered damages.
Tosafot wonders why? Ḥizkiyya who holds the position that they are considered damages is refuted in Perek Hanizakin (Gittin 53:), if so, why does the Gemara feel that it must find a way to reconcile the Braita with that refuted opinion?
**And even though Ḥizkiyya who says that** unrecognizable damage **is called damage is refuted in HaNizakin (Gittin 53b), even so, the Gemara would be more contented to establish the Braita of R’ Ḥiyya his father to concur with him.**


###### Tosafot on Bava Kamma 5a:9:2
[Tosafot on Bava Kamma 5a:9:2](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/5a:9:2)

וקתני היזק דלא מינכרא - והא דקתני שלשה גווני לפי שהם שנויין בפ' הניזקין (גיטין נב:) כדקתני שומר חנם והשואל נושא שכר והשוכר דקתני גווני טובא:

**Tosafot, Translated by Jan Buckler.:**
**And teaches damage that is not evident.** The Gemara answered that there is a need to mention forms of damage that are unnoticeable. Tosafot questions why is it necessary to mention three different forms?
**And** the reason **that the Braita teaches three varieties** of unnoticeable damages **is because they are taught** together in **פרק ניזקין, Gittin 52b.** This system of mentioning all three varieties of unnoticeable damage because they are taught together elsewhere, even though it is only necessary to teach one in order to bring out the desired point is already employed in the Braita. In order to teach us that one is liable for indirect damage on 4b **the Braita taught an unpaid guardian, the borrower, a paid guardian and the lessee.** It is unnecessary to mention all of these to make his point, even so **he taught many varieties** of indirect damage, because elsewhere they are always mentioned together.


###### Tosafot on Bava Kamma 5a:10:1
[Tosafot on Bava Kamma 5a:10:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/5a:10:1)

תני מניינא למעוטי - האי למעוטי לאו משום דלית ליה דרבי חייא אלא כלומר למעוטי דלא איירי בהו:

**Tosafot, Translated by Jan Buckler.:**
**He taught the number to exclude.** Usually the word **למעוטי** means to exclude. If taken literally the Gemara is saying that our Mishna is excluding R’ Oshayo’s avos. This implies that the Mishna does not agree that they are avos. Tosafot tells us that we should not make the error of thinking that our Mishna actually holds that they are not avos.
**This** term **to exclude** the avos of R’ Ḥiyya, **is not because he does not hold of R’ Ḥiyya’s** avos. R’ Oshayo definitely agrees that they are avos. **Rather, what is meant is that they are excluded** from the Braita because **he is not discussing them.** He chose not to list them in his Braita because he did not want to discuss fines.


###### Tosafot on Bava Kamma 5a:11:1
[Tosafot on Bava Kamma 5a:11:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/5a:11:1)

למעוטי מוסר כו' - המ"ל למעוטי כופר ושלשים של עבד והא דלא קתני להו משום דבקטלא לא מיירי ומוסר ומפגל אפילו למאן דלא דאין דינא דגרמי מחייב משום קנס בהגוזל בתרא (לקמן בבא קמא דף קיז.):

**Tosafot, Translated by Jan Buckler.:**
**To exclude an informer, etc.** The Gemara says that R’ Ḥiyya’s count excludes an informer and one who renders another’s sacrifice pigul. Tosafot tells us that those exclusions are not the only ones.
**The Gemara could have said that** the count comes **to exclude** the payment of **kofer and the thirty** sh’kolim for the death **of a slave** who is killed by keren.**And the reason that the Braita does not teach them is because he is not discussing** payments for the **death** of the victims.
**And an informer and one who renders another’s sacrifice pigul,**¹**even according to the one who does not hold one liable for indirectly causing a damage,** in these cases **are liable because of a fine** instituted to discourage such actions. This can be seen in the Gemara in Hagozel Batra 117a.²

footnotes:
¹ Tosafot explanation is for the informer. He is considered one who damages indirectly, since he does not actually take away his victim’s property himself. One who renders another’s sacrifice pigul is a direct damager as Tosafot explain on 100a ד"ה טיהר.
² The Gemara on 117a discusses whether an informer is liable for violating a law or because of a fine. Tosafot understanding is that the one who holds that one is liable for indirect damage holds that it is a law and the one who does not hold one liable for indirect damage holds that an informer is liable because of a special fine.


###### Tosafot on Bava Kamma 5a:13:1
[Tosafot on Bava Kamma 5a:13:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/5a:13:1)

דיבורא דאית ביה מעשה - דבכתובות בפ' נערה (כתובות דף מו.) א"ר אליעזר בן יעקב לא נאמרו דברים הללו אלא כשבעל ור' יהודה אית ליה התם עד שישכור עדים:

**Tosafot, Translated by Jan Buckler.:**
**Speech that involves an action.** The Gemara defines the slanderer who is damaging his wife primarily by what he is saying about her, as **דיבורא-**words that are accompanied by an action. What is the action?
**For in פרק נערה, Ketubot 46a, R’ Eliezer B’ Yacov says that these words,** the punishment of a slanderer, **were only said when he,** the husband,**had relations with her,** and that is the action that causes liability.**And R’ Yehuda holds there** that the slanderer is not liable **until he hires witnesses** to testify falsely.¹

footnotes:
¹ Rashi and the Rashba both identify the actions as having relations with her as is the opinion of R’ Eliezer B’ Yacov. It is a bit puzzling that they do not mention the hiring of witnesses as Tosafot does. Some suggest that perhaps they hold that hiring witnesses is not considered a direct action as is having relations with his victim. See Otzar HaTosafot note 763.


###### Tosafot on Bava Kamma 5a:16:1
[Tosafot on Bava Kamma 5a:16:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/5a:16:1)

כולם כאבות לשלם ממיטב - ואע"ג דתולדות דאבות דמתניתין משלמין נמי ממיטב מ"מ הני אי לאו דקרינא להו אבות לא הוי ידעי דמשלמי ממיטב:

**Tosafot, Translated by Jan Buckler.:**
**All of them are characterized as primary categories to pay from [one’s] best.** It appears from the Gemara’s answer that the avos mentioned in the Braitas of R’ Oshayo and R’ Ḥiyya are called avos only because they pay from the choicest. It seems that to be liable to pay from the choicest is a characteristic reserved for avos and not for toldos. This is not true as Tosafot points out.
**And even though the toldos of the avos of our Mishna also pay from the choicest** which shows that paying from the choicest is not reserved only for avos, if so, why does the Gemara say that they are called avos because they pay from the choicest?
 **However, those** avos of R’ Ḥiyya and R’ Oshayo, **if they were not called avos** by the Braita **we would not know that they pay from the choicest.** There is reason to believe that this group is weaker than the others. The Gemara said that R’ Oshayo did not list R’ Ḥiyya’s avos because they are fines. Our Mishna does not list R’ Oshayo’s avos because some of them are indirect damagers. Perhaps there is no requirement to pay from the choicest. Since they do not have Toldos, the designation as avos can only mean that the Braita intended to elevate them to the level of other avos that they pay from the choicest.


###### Tosafot on Bava Kamma 5a:17:1
[Tosafot on Bava Kamma 5a:17:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/5a:17:1)

תחת נתינה כו' - בספרי מפיק בושת מוקצותה את כפה ולא תחוס עיניך (דברים כה) ויליף מעדים זוממין דכתיב לא תחוס עיניך (שם יט) וא"ל שהוא גזירה שוה גמורה מדלא קאמר אתיא תחת נתינת עיניך ועדים זוממים פרש"י דכתיב בהו נפש בנפש וצ"ל דאפילו אם העידו על שור תם שהזיק או העידו פלוני חייב לפלוני מנה דדינו בזיבורית דמשלמי במיטב דאם רצו לחייב אחרים ממיטב לא צריך קרא דמכאשר זמם נפקא דיתחייבו ממיטב:

**Tosafot, Translated by Jan Buckler.:**
**In place of giving, etc.** Rashi **ד"ה תחת נתינה** in a lengthy exposition of all the words and avos shows how we can derive that each av pays from the choicest. The derivation of **בושת -embarrassment** is a bit vague. Rashi says it may be included in the **תחת** mentioned in the Torah in the verses dealing with a rapist or in the verses dealing with one who wounds another. Tosafot brings to our attention that there is another source that he feels is more reasonable.
**In Sifrei we learn that embarrassment** is paid from the choicest from the verse in D’vorim 25, 12, “**you shall cut off her hand**¹**and you shall not show pity”.** In that verse we see that one is liable for embarrassing another person **and he learns from the zom’mim witnesses where it is** also **written** in D’vorim 19, 21, “**and you shall not show pity”** that just as the zom’mim witnesses pay from the choicest, so too, embarrassment is paid from the choicest.
 **And it should not be said that this is a regular “common word”** method of learning, **because the Gemara here does not say that we learn** that avos pay from the choicest from תחת, נתינה and עיניך.
Since our Gemara does not include the word **עיניך** among the four words of the “common word” method, it seems that our Gemara does not hold that this derivation is a proper “common word”.²
**And** as far as the **zom’mim witnesses** themselves, **Rashi says** that we learn that they pay from the choicest **because it is written about them נפש בנפש “a life for a life”,** even though the word תחת does not appear in that verse, the meaning of the verse is understood as if תחת was written in the verse and that is sufficient for the “common word” method.
Zom’mim witnesses present an interesting dilemma. They usually pay exactly as they planned to cause their victim to pay. If so, why do we need to learn that they pay the choicest, let us see what the victim would have paid?
**And we must say that even when they testify** falsely **about a tam** ox**that damaged** that does not pay from the choicest, **or they testified that p’lonee owes p’lonee**³**a moneh,** one hundred zuz,**whose law is to pay from the poorest,**⁴ the zom’mim witnesses **pay from the choicest,** even though this not what they planned to do to their victim.
Tosafot is basing his conclusion on an obvious question. Why is it necessary to have a verse teach us that zom’mim witnesses pay the choicest? **For if they sought to make their victims pay from the choicest, we would not need a verse** to teach us that they pay from the choicest, **because we would learn from כאשר זמם** that we do to them **as they planned,** **that they are liable to pay from the choicest.** Just as they planned that their victim would pay from the choicest, so too, they must pay from the choicest. The additional verse is necessary to teach us that even when they did not plan that their victim should pay from the choicest; the zom’mim witnesses still pay from the choicest.

footnotes:
¹ Our Rabbis teach that this verse is not to be taken literally. It means that she must pay for the embarrassment she inflicted on her husband’s opponent.
² Tosafot’ understanding of this situation is a bit puzzling. Tosafot obviously disagrees with Rashi who offered another exposition to learn that embarrassment is paid from the choicest. That is why he presents the Sifrei’s method of learning this law and infers that our Gemara concurs with Sifrei. He also says that this is not a proper “common word”. If so, what is it? Some suggest that the common word system is limited to one word in a sentence. Since the verse dealing with embarrassment and the verse dealing with zom’mim witnesses are exactly the same “and you shall not show pity”, this goes beyond the “common word” system and may be used to derive laws from one to the other even when the rules governing a “common word” derivation would not be satisfied. Rashi understands that our Gemara does not subscribe to the Sifrei precisely for the reason that Tosafot suggests. Since our Gemara does not list עיניךas one of the words of the "common word" method,it does not subscribe to that derivation and he therefore offers other sources.
³ This is the Gemara’s way of saying, somebody owed somebody.
⁴ By biblical law a creditor is paid from the poorest. By Rabbinic decree he is paid from the medium quality. Some correct our Tosafot to reflect the rabbinic ruling.


###### Tosafot on Bava Kamma 5a:18:1
[Tosafot on Bava Kamma 5a:18:1](https://torahapp.org/share/book/Tosafot%20on%20Bava%20Kamma/r/5a:18:1)

מאי קאמר - משום דלא מצי לפרושי האי לא הרי כשאר לא הרי שבש"ס קמתמה מאי קאמר:

**Tosafot, Translated by Jan Buckler.:**
**What is [the Mishnah] saying?** The comparisons of subjects by the term לא ראי are legion. The Gemara never seems to have a problem understanding them. Why does the Gemara here suddenly need to ask; what does he mean?
**Because this לא הרי cannot be explained**¹ **as the all other לא הרי that** appear throughout**the Talmud, the Gemara wonders, what was meant?**

footnotes:
¹ Tosafot 2a ד"ה לא הרי השור explains that in our Mishna the term לא הרי means that the leniency of shor is not as great as the leniency of bor. Elsewhere the term usually means that the stringency of (a) is not as great as the stringency of (b).