Rava says [concerning] a thanks-offering that caused damage. Rovo here assumes the position that a Todoh offering that damages is liable. This position assumes that kodshim kalim-sacrifices of lesser sanctity are the property of their owners and not the property of the Most High. This of course follows the opinion of R’ Yosee Ha’Gleelee (earlier 12b). If we were to consider the Todoh as temple property, there would be no liability for damages. Earlier on 13a, Rovo disagreed with those who say that our Mishna follows the opinion of R’ Yosee Ha’Gleelee and says that when our Mishna speaks of ‘property that is not subject to m’eeloh violation’, it simply means that it is private property. Our Mishna is not an indication that kodshim kalim is considered private property. It seems that Rovo is not content with saying that our Mishna follows the opinion of R’ Yosee Ha’Gleelee, because this would then be a ruling that the halochoh is in accordance with his opinion. It seems that Rovo does not want to accept R’ Yosee Ha’Gleelee’s minority opinion as the halochoh. This is a bit ironic as Tosafot points out, because here Rovo is clearly following R’ Yosee Ha’Gleelee, while earlier it seems as if he was rejecting that opinion. Tosafot points out the difficulty.** Even though Rovo explained that our Mishna** when stating that a condition for liability is that the casualty be such property that has no m’eeloh violation, is excluding any property that has even the fundamental requirement for the m’eeloh violation, which is that it possesses any level of sanctity, even if it is only kodshim kalim, and one is liable only for damaging private property,and he does not interpret our Mishna as following R’ Yosee Ha’Gleelee, here, where Rovo is saying that a Todoh that damages is liable,we are compelled to say that this ruling of Rovo was said according to R’ Yosee Ha’Gleelee. According to the Rabonon a Todoh that damages is not liable because it is temple property.¹

footnotes: ¹ Tosafot points out the contradiction between the two statements of Rovo but does not tell us how it might be resolved. See Rosh 15, who says that when the Gemara earlier on 13a, remained with an unanswered question on Rovo’s explanation of our Mishna, Rovo retracted from his position. This argues the Rosh can be seen from our Gemara where Rovo’s is clearly following R’ Yosee Ha’Gleelee. See Rambam Hilchos Nizkay Momon 8, who also rules in accordance with R’ Yosee Ha’Gleelee. See לחם משנה there who points out that the Rambam’s ruling is based on Rovo’s ruling here. See אוצר התוספות note 2167, who suggest other approaches to understanding Rovo’s position about a Todoh that damages.

As it is stated: “And his owner was forewarned and [the ox] killed [a man].” On the surface it appears that R’ Y’hudoh is saying that the killer ox cannot be ownerless at the time of its trial, because the words ‘והועד בבעליו-and there will be testimony against the owners’, implies that at the time of the trial the shor must have an owner. This would be effective proof that if one relinquishes ownership or sanctifies the shor after it gored, there is no liability. Tosafot finds difficulty with this understanding of R’ Y’hudoh. Chronologically speaking, the verse והועד בבעליו, occurs prior to the event of והמית איש, because the verse והועד בבעליו is not a description of the testimony that is needed for a death sentence for the ox and its master’s liability for kofer after it kills, rather it refers to the warning of its owner that establishes the ox as a muad which occurs before the ox kills. The verse is not at all discussing the trial after the goring, but rather the process that renders him a muad. There is no indication in this verse that at the trial after the goring there must be an owner. נראה דלאו מוהועד קדריש It appears that R’ Y’hudohis not expounding the verse והועד – and there was testimony against the shor owner,because this verseוהועד is not speaking about the testimony which is done in orderto stone the ox after the goring.Rather, it is speaking of the testimony needed to warn the ox owner and establish thatthe ox is a muad and that his owner is liable for kofer. Tosafot offers an explanation: אלא מסיפא דקרא קדריש דכתיב והשור יסקל Rather, it is the end of the verse, ‘השור יסקל-the ox must be stoned’, that he, R’Y’hudoh,**is expounding.**¹ וכן משמע לישנא דפריך והא השור יסקל בגמר דין הוא דכתיב And this can be understood from the wording of the Gemara when it challenges the ruling that it is only required that there be an owner when the shor is brought to trial but not throughout the trial – but the words השור יסקל-the ox must be stoned are written about the conclusion of the trial? It is only after the conclusion of the trial that the verdict is carried out. We see that the Gemara refers to the words השור יסקל as the source of the ruling. If the Gemara was introducing a new source, it would have indicated that the words השור יסקל are also a source that must be considered. The Gemara’s reference to these words indicates that it is analyzing the original source, not introducing a new one, which proves that the original derivation was from the words השור יסקל.

footnotes: ¹ Tosafot’ explanation is a bit perplexing. How can we see in the words השור יסקל that the stoned ox has an owner? See אבן האזל פ'ח מהלכות נזקי ממון who explains that Tosafot means that the ruling cannot be derived from והועד בבעליו alone. We must also have the verse השור יסקל. Since the Torah placed the words השור יסקל adjacent to the words והועד בבעליו it is indicating that at the time of stoning which can take place only after a trial there must be an owner. Tosafot may also mean that we must look at the end of the verse which reads וגם בעליו יומת. This teaches us that the master is liable for death by Heaven. This judgment can be redeemed by kofer. The owner is referred to as ‘his, the shor’s owner’. This indicates that there must in fact be an owner.

[Regarding] a courtyard [of two] partners [one of them is] liable [for damage caused by] eating or trampling. The Gemara presents what seems to be a dispute between Rav Chisdo and R’ Elozor about a jointly owned courtyard. Rav Chisdo says that there is liability for shain and regel and we do not say that since both partners have the right to be here it is equivalent to a public domain where shain and regel are exempt. R’ Elozor holds that a jointly owned courtyard is treated as a public domain and shain and regel are exempt there. During the give and take of the Gemara on 14a, the Gemara will present a Braita that clearly says that there is liability for shain and regel in a jointly owned courtyard. This is clearly a refutation of R’ Elozor. R’ Elozor defends himself by introducing another Braita that says that shain and regel are exempt in a jointly owned courtyard. It is at this point in the Gemara that there are two different texts in the position of R’ Elozor. (A) In our text the Gemara is saying that R’ Elozor holds that these two Braita are disagreeing with each other and that his opinion follows the second Braita. Subsequently, the Gemara shows how Rav Chisdo is of the opinion that the Braitas do not necessarily contradict each other. What emerges according to this text is that R’ Elozor holds that in all cases of a jointly owned courtyard one is exempt for shain and regel. Rav Chisdo differentiates between a jointly owned courtyard where both parties may bring oxen and fruits and a courtyard where they may only store fruit. In the latter there is liability for shain and regel, because one does not have the right to bring his animals into that courtyard. When both have the right to bring their oxen into the courtyard, there is no liability for shain and regel. According to the variant text R’ Elozor is defending himself by saying: there are in fact two Braitas on the subject. (B) Do you think that they disagree with each other? Certainly they do not, and he shows us how to resolve the two Braita by explaining that one Braita is speaking about a courtyard where they can only store fruits and vegetables. In this case we rule that one is liable for shain and regel, because neither partner had the right to bring an animal into the courtyard. The second Braita is speaking of when both partners have the right to bring their oxen and produce into the courtyard. It is then that they are exempt for shain and regel since they had the right to bring their animals into the courtyard. Since R’ Elozor is saying that they are exempt from shain and regel only when both have the right to bring their animals into the courtyard, Rav Chisdo who is arguing with R’ Elozor must be saying that even when both partners have the right to bring their animal into the courtyard, they are liable for shain and regel. It is Rav Chisdo according to this text who believes that the Braita cannot be resolved. At the beginning of our Gemara, in addition to presenting the differing opinions the Gemara shows how each of the disputants will explain the sentence of the Mishna that speaks of a domain that is designated for both the damager and the victim. Rav Chisdo said that it is to be understood as saying: ורשות הניזק והמזיק that a jointly owned courtyard is different than a domain of the damager and when damaging there כשהזיק חב המזיק one is liable for shain and regel. R’ Elozor says that the Mishna is to be understood as follows: ורשות הניזק והמזיק and a jointly owned domain is also like the domain of the damager and one is exempt for shain and regel. The next statement of the Mishna כשהזיק חב המזיק is independent and teaching us about liability for keren. Tosafot will now explain the Gemara according to both texts. The jointly owned courtyard that they, Rav Chisdo and R’ Lozor, argue about is to be used exclusively for produce and not for oxen, as is evident at the end of the Gemara, where the Gemara says: That they are arguing about the question of R’ Zeira, who wondered how even a courtyard where the damager only has the right to store produce can be called ‘another’s field’and the response of Abaye, who answered that since he is not allowed to bring in his oxen, it is considered ‘another’s field. R’ Elozor holds like R’ Zeira’s question and cannot see how one can be liable for shain and regel in a jointly owned courtyard when he has the right to store his produce there and Rav Chisdo says one is liable, because he may not bring his oxen into the courtyard. The question of R’ Zeira and response of Abaye is relevant only to a courtyard where one may store his produce and not bring his oxen. This courtyard must be the subject of their disagreement. When the courtyard is designated for both produce and oxen, Rav Chisdo agrees that there is no liability for shain and regel. It now emerges that Rav Chisdo agrees that there is a jointly owned courtyard where there is no liability for shain and regel and that is when it is designated for produce and oxen. And according to this understanding of Rav Chisdo’s position, that he does in fact agree that there does exist a jointly owned courtyard where one is not liable for shain and regel,Rav Chisdo could have explained the Mishna as R’ Elozor explained it. And he will explain that the words ורשות הניזק והמזיק-and the domain of the victim and the damager, are a continuation of the previous statement that one is not liable for shain and regel in a jointly owned courtyard, when it is designated for produce and oxen, where Rav Chisdo admits that one is exempt and the words כשהזיק חב המזיק are a new sentence that teaches us about the liability of keren as the Gemara explained according to R’ Elozor.¹ See (A) in our introduction. And our text below (14a) is: R’ Elozor could answer: and if you analyze this properly, aren’t the Braitas disagreeing on this subject. R’ Elozor is not attempting to reconcile the Braitas. It is his opinion that they disagree and he personally follows the second Braita. The resolution that appears in the Gemara is the opinion of Rav Chisdo. R’ Elozor, however, holds that in all cases of a jointly owned courtyard one is exempt for shain and regel. Tosafot now introduces the variant text. See (B) in our introduction. ומיהו לספרים דגרסי לקמן ותסברא מתניתין מי פליגי However, there are manuscripts that emend the Gemara later (14a) as follows: and upon proper analysis, are the Braitas arguing? ובסוף גרסי אלא כי תניא ההיא וכל זה מדברי רבי אלעזר And towards the end, after citing R’ Shimon ben Elozor’s Braita which says that one is exempt for shain and regel in a jointly owned courtyard, they emend ‘אלא כי תניא ההיא’ – ‘rather, what that Braita is saying’ which indicates a reconciliation of the two Braitas, and all this is the words of R’ Elozor, who is reconciling the Braitas. According to this text, it is R’ Elozor who holds that there are two types of jointly owned courtyards. When the courtyard is designated for produce alone, he agrees that one is liable. It is only when it is designated for both produce and oxen that he holds that one is exempt. Perforce, Rav Chisdo who argues with R’ Elozor, must be saying that even when the courtyard is designated for oxen as well, one is liable for shain and regel, for it is only in that case that R’ Elozor holds one exempt. And we must say that they, Rav Chisdo and R’ Elozor, argue about a courtyard that is designated for produce and oxen and even in this case where the damager has the right to bring his oxen into the courtyard, Rav Chisdo holds that he is liable. And this is the explanation of the variant text: And upon analysis do they, the Braitas argue etc. about this matter? Rather, they definitely do not argue and that which it teaches etc. [that they are exempt is when the courtyard is designated for oxen as well and they are liable when it is designated for produce only.] According to Tosafot approach in the variant text, until almost the very end of the Gemara the dispute is about a courtyard designated for produce and oxen. At the very end the Gemara will change its position. And according to this varianttext, the beginning of this passage will not be the same as the conclusion, where the Gemara saysthat they, Rav Chisdo and R’ Elozor,argue about the question of R’ Zeira and the response of Abaye. As explained earlier R’ Zeira asked how can a jointly owned courtyard where the damager has the right to keep his produce be thought of as ‘another’s field’. Abaye answered: that since he may not bring his oxen into the courtyard, it may be considered ‘another’s field. This question and answer is obviously discussing a courtyard which is designated for produce only. There is a clear statement by the Gemara that the dispute is about this courtyard and not about a courtyard that is designated for oxen as well. This contradicts the beginning of the passage where it seems that the dispute is only about a courtyard designated for both.

footnotes: ¹ Tosafot does not tell us why Rav Chisdo chose to say that the Mishna is speaking of a courtyard where one is liable for shain and regel as opposed to a courtyard where one is exempt. Perhaps Rav Chisdo is more comfortable with the words כשהזיק חב המזיק as the end of a sentence, rather than as an independent superfluous sentence.

When one causes damage, the one liable for the damage is obligated; [this clause serves] to add [that this includes] goring. According to R’ Elozor the words כשהזיק חב המזיק, are an independent superfluous sentence. Shmuel holds that it is needed to teach us about the liability of keren, while Rav holds that it comes to teach us about the liability of an ox deposited with a guard as presented by a Braita that explains these words of the Mishna. Rav Chisdo said that these words are the conclusion of a sentence that begins with the discussion of shain and regel in a jointly owned courtyard. It is not a superfluous sentence. If you ask: And according to Rav Chisdo, who says that these words are the conclusion of a sentence and not superfluous, how from where does he know to include keren according to Shmuel, who says that keren was not mentioned earlier in the Mishna,and all these rulings mentioned in the explanatory Braita according to Rav? Rav said that keren was mentioned earlier in the Mishna. כשהזיק חב המזיק is not needed to teach us about keren. It comes to teach us all of the rulings in the explanatory Braita. And furthermore, even if we should find an allusion to teach us about keren and the other rulings of the Braita, the Braita that teaches that כשהזיק חב המזיק is superfluous to include all these rulings, is a contradiction to Rav Chisdo. The Braita is clearly saying that כשהזיק חב המזיק is an independent superfluous sentence, while Rav Chisdo says it is the conclusion of the previous sentence? Tosafot answers: And one can answer: That according to him, Rav Chisdo,there is also a superfluity in the text of the Mishna, for the Mishna could have said: and in a common domain of the victim and the damager, one is liable. It did not have to say ‘when it damages the damager is liable’. That superfluity is sufficient to teach us the liability of Keren according to Shmuel and all the rulings of the explanatory Braita. There is one point that remains difficult: But this is difficult, that the Braita is a difficulty to Shmuel. The Braita, whose function is to explain the words כשהזיק חב המזיק, does not mention that it comes to teach us about the liability of keren.

For example, where [he] undertook the responsibility of safeguarding the body of [the ox]. The Gemara quoted an explanatory Braita that says כשהזיק חב המזיק, comes to teach us that when an ox is deposited with one of the guards, there is liability. The text of the Braita is very vague. It is not at all clear if the deposited ox was the damager or the victim. The Gemara analyzes all the possibilities. It asks: If the borrowed ox damages an ox belonging to a third party, it is the borrower who is liable. When he borrows an ox, he is not only responsible for damages to the ox, but for damages done by the ox. If so, when it damages the borrower’s ox, why should the lender be liable? The Gemara answers: The Braita is speaking of when the borrower accepted the responsibility of damages that might happen to the borrowed ox but not for the damages that the borrowed ox might cause. Therefore, even when the victim of the borrowed ox is the borrower, the lender is liable, because the responsibility for the ox’s damages remains with him. Tosafot speculates about another situation that the Gemara might have offered as a solution to the problem of the Braita: The Gemaracould not have said that the Braita is speaking ofthe reverse situation.For example: the borrower’s ox damaged the lender’s ox and the borrower accepted responsibility for damages that the ox might do, but did not accept responsibility for harm that might befall his, the ox’s,body. In this case the borrower would not be liable for full payment, because he did not assume responsibility for guarding the ox from being damaged. He would remain liable for half-payment if his ox is a tam, just as he would be liable if his ox damaged any other ox. The reason the Gemara does not consider this possibility is, because it is an unlikely situation. Usually, when one lends his ox to another person he might be lenient about damages that the ox does, but he will insist that the borrower be liable for damages that happen to his ox. Tosafot points to a Gemara that seems to contradict this statement: And even though the Gemara at the end of Shor Shenogach Arbo’oh Va’Chameeshoh (below 45b) says that when the proposed guardwas aware that he, the shor,regularly gored, generally, in this type of situation, the guard accepts upon himself responsibility that he, the shor,will not go and damage others. The guarddoes not accept upon himself responsibility for others that might come and damage him. It is evident that there are situation where one accepts the responsibility for damages that an ox might do to others but not for what might be done to the ox. If so, why doesn't our Gemara consider this possibility as a way of explaining the Braita? Tosafot explains: our Braita is dealing with a borrower, whereas the Gemara on 45b is speaking of other guards. When the guard is a borrower, it is not feasible to say that we are speaking of such a case, because usually a borrower accepts complete responsibility for what might happen to the ox that he borrowed. One might refuse to accept responsibility for what the ox might do to others, especially if the ox has a reputation for goring, but since when borrowing he is the sole beneficiary, he almost always would assume responsibility for what might happen to the ox.