[There is] a stringency that applies to ox, as opposed to fire. Here again Tosafot wants to know why the Braita did not mention the chumros used by our Mishna. The reason that the Braita does not mention that the shor is alive, is because that is included in the chumro that if one hands over an ox to a deaf mute, an idiot or a minor he is liable. For the exemption for handing over an aish to a minor depends on this fact that the aish is not alive.****¹

footnotes: ¹ This is very problematic. It seems that Tosafot holds the reason one is exempt when handing over an aish to a minor is because the aish is not alive. Actually, one is liable for putting a minor in charge of a bor even though the bor is not alive. Some answer that there is an essential difference between a bor and a fire. The bor in a public domain is initially a damager and should be stuffed. Even though it is not alive one is liable for putting a minor in charge of the bor. An aish is not initially a damager; it may initially serve a constructive purpose. If it were alive one would be liable as one is liable for handing over a live ox to a minor. It is precisely because it is not alive that one is exempt when handing it over to a minor.

[He] omitted a concealed [item]. The source for the exemption of hidden items that are burned is in Sh’mos 22, 5. The Torah mentions among the things that are destroyed by fire, או הקמה or a standing crop. Our Rabanan understand that this comes to teach us that just as a standing crop is visible, so too, one is liable only for the destruction of items that are visible. In regard to bor the Torah speaks of the victims as an ox and a donkey. The Gemara expounds the verse as follows: an ox- and not a person, a donkey- and not vessels. When vessels are damaged by a bor the bor owner is exempt. Rashi and Tosafot disagree about what the exclusion of vessels encompasses. The Tano of the Braita did not mention the rule of hidden object for which one is exempt when damaging them by aish and liable when damaging them by shor and bor. And Rashi explained how a shor and a bor might damage a hidden object.For example, an ox kicked a sack full of utensils and broke them and so too if a sack full of wheat fell into a bor and was destroyed**,** the shor and bor owners are liable. Rashi when discussing shor speaks of a sack of utensils. He undoubtedly changed the scenario for bor and speaks of a sack of wheat, because bor is not liable for utensils in any case. Rashi therefore said that a sack of wheat fell into the bor. Rashi is saying that ordinarily bor is liable for wheat. It is only in this instance that the wheat is hidden that the bor is not liable for damaging the wheat. Tosafot disputes Rashi on this ruling. And Rashi was not precise, because all things that are not alive are excluded from the word donkey in the verse of bor, just as utensils are excluded from that word. The exclusion applies to anything that is not alive as the donkey is alive. This excludes vessels and all things that are not live. Tosafot offers proof of his ruling that a bor is always exempt when it damages wheat. The Mishna on 47b discusses one who brings his ox into another person’s premises. The ox falls into a bor and pollutes the water; the ox owner must pay for the water. On 48b the Gemara comments that this is only true if the ox polluted the water as it fell into the bor, but if it pollutes the water after it fell, the ox owner is exempt. The Gemara explains that the body of the ox in the pit is considered a bor and when it damages the water it is exempt because the water is the equivalent of vessels. As the Gemara says at the end of haporoh (48b) in regard to an ox that fell into a bor and polluted the water, if the water was polluted only after the ox fell in and not as it fell in, the ox owner is exempt. The Gemara there explains because the ox as its body lies in the wateris a bor and the water that was polluted is the equivalent of vessels, and we do not fin that one is ever liable for damaging vessels by a bor. We see that the Gemara says that water is also excluded from bor because of the same exclusion as vessels. Obviously any object that is not alive is excluded by expounding the verse, a donkey and not vessels.

[A fire] scorched [another person’s] plowed field or singed his stones. Rashi does not say here how fire licking one’s plowed field or singeing one’s stones is not applicable to bor. Tosafot cites Rashi’s explanation later about a similar situation. Later in our Gemara in regard to the Gemara’s discussion of an ox is liable for trampling on a plowed field when the Gemara says that this is not so of bor Rashi explains that it is not possible for a bor to damage land since the bor cannot move to where the land is. It seems that here as well in regard to licking plowed fields and scorching stones Rashi wants to explain the phrase that this is not so of bor, that the bor cannot damage a plowed field or stones. Although it is definitely true that a bor cannot damage a field or stones, Tosafot finds this explanation faulty. And this is difficult. For if it was so, that the phrase means that bor cannot damage a plowed field or stones, the Gemara might have mentioned many damages that aish does to a stationary object such as burning one’s house and other stationary things. If the crux of the issue is that bor cannot damage stationary objects, the Gemara did not have to single out a plowed field or stones which are relatively unusual. The Gemara could have spoken about burning a house which is far more common.¹ Tosafot offers a radically different explanation of the phrase “that is not so of bor”. Rather, one can say, The Gemara is showing the contrast between aish and bor by pointing out that aish is liable for licking one’s plowed field even though it is not usual for aish to damage a plowed field or stones at all. Aish is liable even when it damages in an uncommon way.That is not so of bor, it is not liable when damaging in an unusual manner, for when the bor is less than ten tefachim deep, bor is exempt for the death of an animal**,** since it is unusual for a bor to cause death when it is less than ten tefachim deep. The contrast between aish and bor is not that aish can damage stationary objects and bor cannot. It is that aish is liable for the unusual and bor is not.

footnotes: ¹ Rashi might hold that the Gemara singles out this example of damage to stationary objects, because this the example used later on 60a when the Gemara says שדה למה לי? לאתויי לחכה נירו וסכסכה אבהיו. Why does the Torah use the word שדה when describing the objects that fire damages? To teach us that aish is liable for damage it causes by licking a plowed field or scorching stones. Since that example is used to teach us that aish is liable for damaging land the Gemara quotes that example here.

That one is liable [if his ox damages an] ox [that is in the category of] disqualified consecrated [animals]; this is not so with regard to [damage caused by] a pit. As the Gemara expounds from the verse “and the carcass shall belong to him” (Sh’mos 21, 33), the verse is speaking of a carcass that belongs to him, its owner. This exclude an ox that was an unfit sacrifice, for although one may slaughter it and eat it, once it is an unslaughtered carcass the owner may not benefit from it. Thus it no longer belongs to him. We see that the Gemara understands that any thing from which one may not derive any benefit after its death is though of as if it does not belong to its owner and is excluded from being a victim of bor. Earlier we learned of the exclusion of a person as the victim of bor from the teaching, “shor” can be a victim of bor- but a person cannot be a victim of bor. And if you ask: why do I need the teaching, “shor” can be a victim of borbut not a person. That a person cannot be a victim of bor should be derived from the verse, “and the carcass shall belong to him” which indicates that the carcass must belong to its owner, as we exempt the ox that is an unfit sacrifice because it no longer belongs to its owner since it is forbidden to benefit from it**. For it is** also prohibited to benefit from a human corpse, as the Gemara expounds a textual similarity of the words שם that appears in the Torah at the death of Miriam (Bamidbar 20, 1), and from the שם that appears in the Torah about the decapitated calf (D’vorim 21, 4)¹in perek Ain Maameedin (Avodoh Zoroh 29b). Just as it is prohibited to benefit from the decapitated calf, so too, it is forbidden to benefit from the body of a dead person. Now that we know that one may not benefit from a human corpse, the same source for excluding an unfit sacrifice should be used to exclude a person. Tosafot suggest a possible solution to his question. Perhaps it is not totally forbidden to benefit from a human corpse? And if you should argue that it is because benefiting from the hair of a human corpse is permitted as the Gemara says in the first perek of Arochin (7a), and that usability of the hair satisfies the condition that one must have ownership of the corpse, so too, it is permissible to benefit from the hair of an ox that isan unfit sacrifice as the Gemara says in the third perek of B’choros (25a), and even so, since the primary part, the body,is prohibited it is considered as a carcass that does not belong to him. So too, a human corpse, although the hair may be used, since the primary part, the body, is prohibited it should be considered as not belonging to its owner. It should be excluded by means of the verse “and the carcass shall belong to him”. And we can answer: that the verse “and the carcass shall belong to him” is discussing an ox as it is written in the verse “and it will fall into it an ox or a donkey, and a person cannot be excluded from that verse. Since the verse itself only stipulates this condition of ownership of the carcass in reference to an animal we may not draw the conclusion that the same condition would apply to a human.² Tosafot offers proof that the conditions required for an animal are not necessarily required for a human. The phrase “and the carcass shall belong to him” appears in the Torah in two places, once in regard to shor and once in regard to bor. The Gemara says that the one that is mentioned by shor teaches us that the carcass belongs to the victim and the shor owner need only pay the difference between the value of the ox when it was alive and when it was killed. The verse that is written about bor teaches us that the bor owner is not liable for an unfit sacrifice that is killed by his bor. I will prove this to you,³ from the Gemara’s question in Haporoh (53b). The Gemara concluded that the verse dealing with shor teaches us that the carcass is the property of the victim’s owner and the verse dealing with bor teaches us that bor is not liable when its victim is an unfit sacrifice. The Gemara asks: And allow me to reverse the understanding of the two verses “and the carcass shall belong to him”, the explanation: the verse**“and the carcass shall belong to him”** that is written aboutshor, we will expound to teach us that the carcass must belong to the owner of the victim shor. The Gemara entertained this suggestion. Tosafot will analyze the ramifications of this suggestion in order to prove his point, that the requirements for a victim shor are not necessarily the same conditions as a victim person. And how could the Gemara possibly say so, that the condition of a victim shor is that the carcass must belong to its owner, for shor when killing a personmust pay kofer, even though the corpse does not belong to its owner. If you insist that the conditions of an animal carcass and a human corpse are the same, that if their owner cannot benefit from them they do not qualify as victims of shor, we have an inherent contradiction to the Gemara’s suggestion that “and the carcass shall belong to him” comes to teach us that an unfit sacrifice cannot be a victim of shor because it does not belong to its owner. The fact that shor does pay kofer for killing a person even though one may not benefit from the corpse proves that the Gemara’s suggestion that one must be able to benefit from the corpse of the shor is incorrect. It is clear that shor pays for killing a person even though one may not benefit from the victim’s corpse. Rather, you are compelled⁴ to conclude that we are not concerned with this difficulty, that the human corpse cannot satisfy the requirement of belonging to its owner and even so there may be a requirement for an animal carcass that the owner must be able to benefit from it. The reason is as we have explained, that the requirement that one must be allowed to benefit from the carcass refers exclusively to shor and we do not say that the conditions for a human victim are the same as the conditions of an animal victim. Although Tosafot is convinced of the truth of his answer to the original question, why do we need a teaching of shor and not a person, Tosafot now tells us that the original question can be deflected in another manner. And even without this answer, the original difficultyis not a difficulty at all, according to what we explained earlier, (Tosafot 9b ד'ה מה שאין כן בבור) that shor and not a person is needed to excludea slave and a gentile who is owned by a Jew who fell into a bor, for that slave or gentile’s corpse is permitted for benefit and certainly satisfies the condition that the victim’s corpse belong to its owner.⁵

footnotes: ¹ When a corpse is found between two cities, the city closest to the corpse must bring עגלה ערופה a calf that is decapitated as atonement for possible negligence on the part of the city elders who did not provide food and drink for the wayfarer. It is possible that because he had no food he attacked another person and was killed by his intended victim. ² Why is there a difference between a human and an animal? Why do we not apply the system of בנין אב and learn that just as one is required to be allowed to benefit from the animal carcass in order to be a victim of bor, so too, he must be allowed to benefit from the human corpse? Some say that there is an essential difference between an unfit sacrifice and a human corpse. The unfit sacrifice is prohibited for benefit because his owner sanctified it as a sacrifice. While it is alive one may benefit from it by slaughtering and eating it. When the animal dies unslaughtered it reverts to the previous situation of being prohibited because its owner sanctified it as a sacrifice. The fall into the bor and its subsequent death is not the reason that it is prohibited from benefit. When a person falls into a bor and dies, it is precisely the bor that caused it to be prohibited from benefit. There is no previous condition that causes the prohibition. If anything that is even more reason to make the bor owner liable, because he caused that the corpse should be forbidden. It is because of this essential difference that we cannot derive that a person cannot be a victim of bor from the fact that an unfit sacrifice cannot be a victim of bor. ³ Translation follows the intent of the phrase. Literally תדע means you should know. ⁴ Translation follows the intent of the phrase. Literally על כרחך means against your will. ⁵ There are many contradictions surrounding this ruling that a slave’s or gentile’s body is permitted for benefit. The Shulchan Aruch rules that all corpses are prohibited from benefit. Perhaps a gentile’s corps is only forbidden by Rabbinic law. The verse shor and not a person is referring to the situation before the Rabbinic law came into effect.

The last one is liable. When the Rabanan of the Braita say that the last one, who added the tenth tefach is liable,**** this refers also to damages and the first one who dug nine tefachim is exempt from everything, death and even damages that occur to animals that fall into the bor. Why should this be so? After all, the first digger who dug nine tefachim created a hazard that could cause damage if not death to animals that fall into the bor. Why should he not be liable for damages that his bor caused to passerby animals? His labors certainly contribute to the damage of the animals. And in perek Haporoh (51a) the Gemara explains the reason for the exemption of the first digger. For it is written (Sh’mos 21, 33), “if a man will dig” this implies that one man who digs is liable for the damage his bor causes and two people are not liable for the damage that their bor causes. This comes to make the last one liable and not the first one. For that very verse says “and the carcass shall belong to him” which shows us that the verse is defining he who dug an amount that causes death is the one who is liable. It is the last one who added the tenth tefach that made the bor into a potential killer. He alone is liable for any damage that the bor causes. Rashi there explains that it is not necessary to have a verse to teach me that the one who made the last tefach is liable for death caused to the animal. The first digger who only dug nine tefachim is not a partner in the killing that the bor does, since he only dug nine tefachim which cannot kill. It is only to teach me that he alone is liable for damages that the bor causes that a special verse is required. As far as damages are concerned there is every reason to believe that the first digger should be equally liable, because he dug a potential damager. The verse teaches me that even so the first digger is exempt and the last digger liable.

But are there no more [cases]? The Braita gave an example of what is meant by the statement “I caused some of the damage and I am liable as if I caused all the damage”. The example is a person who added one tefach to a nine tefachim bor. Logically he should be considered a partner to the damage, but he is treated as if he caused the entire damage himself and he alone must pay. The Gemara then asks: are there no other such cases that a person does part of the damage and is liable as if he did the entire damage? The Gemara proceeds to reject all the cases that were suggested. Tosafot is concerned about the question. And if you ask: granted that there are many other such cases, is the Tano like a salesman who must continuously list all his wares. One example should be sufficient to illustrate the law. And we can answer: that the reason the Gemara is searching for another illustration is because the Gemara resorted to an awkward solution, to set up the Mishna a way that it is not in accordance with Rebbe or as Rav Popo suggested that the Mishna is discussing**** when the bor cause the death of the animal and not when it damages the animal. And according to the suggestions now proposed by the Gemara, the Mishna could be set up to be speakingabout damages as well**.** The Braita’s use of this awkward solution indicates that perhaps there are no other applications of this rule. That is why the Gemara asks; are there no alternatives to the example offered by the Braita? And if you ask: and let the Gemara set up the Mishna, for example when there is no foul air¹that can cause death and no foul air that can cause damages, which is when the width of the bor is greater than its depth.² And another person came and plastered and engraved pictures on the wall, by adding the plaster he minimized the width of the bor and it is now deeper than wider and the foul air can even cause death. For in this case Rebbe agrees that the last one, who added the plaster,is liable for both death caused to the animalsand for damages as Rav Popo says in perek Haporoh (later 51a). And we can answer: that this is not a case of causingpartial damage, for the last one who plastered the walls and caused the foul air to gather in the bordid all the damage. The first one who dug a bor that was wider than deeper caused no damager whatsoever. The bor’s capability to cause damage and death is solely the work of the last one who added plaster and engraved pictures on the plaster.

footnotes: ¹ The Gemara says later on 50b: אמר רב: בור שחייבה עליו תורה – להבלו ולא לחבטו Rav says the bor for which the Torah holds one liable is because it’s foul air and not because of the concussion it causes. Shmuel who disagrees with Rav there does agree that foul air can also cause death and damages. Tosafot exchange here is based on that opinion. ² See Gemara there 51b.