The verse equates a woman with a man. Most of the Torah is written in the masculine term. There are some verses where the Torah specifically addresses a man. Tosafot explains that the principle that we are presently discussing which teaches that women are equal to men in regard to all penalties of the Torah refers only to those verses that are written in the masculine term. However, where the Torah specifically mentions that it is speaking to a man, a special inclusion is needed to teach us that the mitzvah applies to woman as well.** This** rule that equates women to men as far as all penalties of the Torah is specifically when the passage is said in the masculine term. Where there is no explicit reference to a male we are to assume that the Torah is speaking to women as well, even though the verse is written in the masculine term. That is the lesson of our Gemara. Tosafot offers an illustration of his explanation that this rule applies when the verse is written in the masculine term:** כי ההיא דריש תמורה (דף ב:) דפריך אמאי איצטריך רבוי לענין תמורה לפי שהפרשה נאמרה בלשון זכר והא השוה הכתוב אשה לאיש As** can be seen fromthat Gemara at the beginning of Masechet T’muroh (2b),¹where the Gemara asks: why is it necessary to have a specific inclusion to include women in the matter of T’muroh? Since the passage was said in the masculine term, the question was asked: but the Torah equated a woman to a man for all penalties of the Torah? This is not so when the Torah specifically speaks of a “man”. However, where “man” is clearly written in the verse, there, we definitely require an inclusion to include women in the mitzvah. Tosafot offers proof that when the verse specifically mentions a “man” a special inclusion is needed to inform us that the rule applies to females: As we find in that Gemara in Perek Arba Meesos (Sanhedrin 66a) where the Gemara is discussing the negative commandment prohibiting cursing one’s parents: The verse (Vayikra 24, 15) reads: a man who will curse his father and his mother. The Gemara asks: I would only know that this applies toa man, from where do we learn that it applies to a woman? We see that in this case since “man” is specifically mentioned a special inclusion is needed to teach us that the mitzvah applies to women as well. We cannot make use of the general rule that women are equal to men for all penalties of the Torah. Based on this understanding, that when the Torah does not specifically mention “man” we utilize the general rule that equates women to men for all penalties of the Torah, we are faced with the following question: If you ask: later in Perek Shor Shenogach Arbo’oh vaChameeshoh (44b, and Tosafot ד"ה שור האשה) wherethe Gemara says the word shor is repeated seven times, to include among others the ox of a woman in regard to an ox that killed, the verse is teaching us that there is liability for a woman’s ox as well. Why is an inclusion needed, but there in that versethe word “man” is not written and we should utilize the general rule that includes women in all mitzvos of the Torah?And even though it is written in that verse “and also his owner will die” that is not a specific mention of “man”,² but merely a masculine term, where no special inclusion for women is needed.

Says Rabbeinu Tam: that the Gemara there 44a expounds³ that the word יגח is repeated in Shemot 21, 31, twice to apply the word נגיחה" – goring” to the verse that speaks of an oxkilling and to apply the wordנגיחה" – goring" to the verse that speaks of an oxdamaging. It is as if the Torah is telling us that whatever is true of one verse that discusses goring is true of any other verse that discusses goring,and we would derive from the verse that discusses damages, where the word “man” is written in the verse**(Shemot 21, 35): if the ox of a man will shove etc.** This would come to exclude a woman from liability,if not for the inclusion of the verse that repeated the word shor seven times to include the ox of a woman as well. Without the special inclusion of the repetition of shor seven times we would say that a woman is excluded from liability for her ox damaging as well as for her ox that kills. Now that we have that inclusion, a woman is liable for her ox that damages as well as for her ox that kills.

footnotes: ¹ The Gemara there says that the superfluous word in Vayikra 27, 10,-- וְאִם־הָמֵ֨ר יָמִ֤יר בְּהֵמָה֙ בִּבְהֵמָ֔ה וְהָֽיָה־ה֥וּא וּתְמוּרָת֖וֹ יִֽהְיֶה־קֹּֽדֶשׁ --teaches us that women are also included in this prohibition. ² See Rashi 44b ד"ה שור האשה. See also Tosafot Rabbeinu Peretz. ³ The word דמקשינן – literally - that we compare, appears in brackets in our Tosafot. Elsewhere in Sukoh 28b the word דדרשינן is used as is mentioned on the gloss.

“[And these are the civil laws] that you shall set before them”; the verse equates a woman with a man. In Shemot 21, 1, the Torah states “and these are the laws that you shall place before them”. Who are “them”? In our Gemara which presents this verse as proof that the monetary laws of the Torah apply equally to men and women, it seems that the word “them” refers to the people in general. See Rashi ד"ה לפניהם: who says that all or included, men and women. Tosafot quotes a Gemara that says that “them” refers to judges. Women are excluded from being judges. It seems ironic that the very same word, which our Gemara uses as proof that women are included in the monetary laws of the Torah, is simultaneously referring to judges where women are excluded. This is bewildering! But לפניהם – “before them” is speaking only about those who are qualified to be judges?¹For that is how the Gemara expounds this verse in the last Perek of Gittin (88b) לפניהם – “before them” and not before commoners who are not ordained with s’meechoh. Tosafot is saying that because the verse is discussing those qualified to be judges, women are excluded, but how does Tosafot know that women are excluded from being judges? And a woman is disqualified from judging as we have learned in a Mishna in Perek Bo Simon (Needoh 49b): Whoever is qualified to judge is qualified to testify, and a woman is disqualified from testifying as the Gemara says in HaChovail (below 88b) and in Perek Sh’vuas Ho’Aidus (Sh’vuous 30a).² Since the Mishna says “whoever is qualified to judge is qualified to testify” and we know that a woman is not allowed to testify, it must be that a woman is not qualified to judge. Otherwise, the statement that whoever can judge can testify would be untrue, because a woman can judge but not testify. Tosafot retracts from his initial assumption that women are not qualified to be judges. We can answer: That the Mishna in Bo Simon (Needoh 49b) is speaking about a man. The Mishnameans: Any man who is qualified to judge is qualified to testify. If a man is qualified to be a judge he is certainly qualified to testify. If he is not qualified to testify, he cannot be a judge. This does not exclude women who are not qualified to testify but are qualified to be judges. Tosafot attempts to show how we might derive that women may be judges from a Biblical source, but then rejects this proof.And from that which is written about D’vorah (Shoftim 4, 4), “she judges Yisro’ail”, which definitely is proof that she was qualified to be a judge, we cannot bring proof that a woman is qualified to judge, because perhaps they accepted her upon themselves,³ even though she was not legally qualified to judge,because of the divine presence that was with her. If you ask: In Gittin (88b) we expound לפניהם – “before them” to exclude commoners who are not ordained, and here we expound the same word to include women?⁴ We can answer: That there in Gittin 88b, we exclude commoners who are not ordained because the word לפניהם – “before them” refers to the word אלהים – “judges” that is written many times throughout the passages ⁵ that discuss the monetary laws in Parashat Mishpatim. See Shemot 21, 6, and 22, 7, 8. Thus, the term לפניהם– “before them” is saying that the trial must be bought before judges as indicated in the word אלהים; the אלהים that is written in those passages does not exclude women. If the source of the ruling that s’meechoh judges are required is the word אלהים that is written through out the passages, why is the word לפניהם needed?⁶ If you ask: without the word לפניהם – “before them” we can elicit that s’meechoh judges are required from the word “אלהים– judges”, which means experts? Tosafot explains that there is something new that is derived from the word לפניהם.We can answer; That לפניהם – “before them” is needed to teach us that for all matter of coercion of those who do not want to follow Torah law even though it is not a judgment, i.e. if a person refuses to do a mitzvah such as take the four species on the first day of Sukos, the court will force him to do so. No ‘judgment’ is required. It is very clear that the Torah requires one to take an esrog and lulov and that this individual is refusing to do so, even so s’meechoh judges are required to institute the process of coercion. And so is it evident in the first Perek of Sanhedrin (7b) wherethe Gemara expounds from the words that precede לפניהם in the verse, אשר תשים – “that you shall place” the Gemara asks: the verse should read “that you shall teach them”? The Gemara then answers: The word תשים – “place” refers to the apparatuses of the judges needed to coerce those who refuse to obey the court.

footnotes: ¹ Tosafot proves from the Gemara in Gittin 88b that the word לפניהם refers to judges. He then proves that women are disqualified from judging. At this point the commentators are puzzled as to what exactly Tosafot is asking. If Tosafot is asking how the verse can be speaking about qualified judges and also at the same time about the people to be judged, the question remains unanswered. Tosafot eventually answers that women are eligible to judge, but this does not explain how the verse can be speaking about two different subjects. It seems that Tosafot was unconcerned about the fact that the same verse is interpreted in Gittin as speaking about judges and in Bovo Kamo about the people to be judged. Why not? פני יהושע suggests that the verse is definitely speaking about judges. The Gemara here assumes that women are eligible to judge, and if so, whoever is eligible to judge certainly can be judged. Tosafot then asks: But women are not eligible to judge as indicated in Needoh 49b? Tosafot answers that they definitely can judge and he shows how Needoh 49b is not discussing women at all. What emerges according to פני יהושע is that the verse לפניהם is speaking only about judges and we learn via kal v’chomer that whoever is eligible to judge, certainly can be judged. See Tosafot HoRosh in Gittin 88b who says that the word לפניהם can refer to two different subjects, judges and those to be judged. According to his approach Tosafot may be asking: How can the two subjects have differing halochohs? The subject ‘judges’ exclude women and ‘those to be judged’ including women. Tosafot then answers that women are also included in the subject of judges. ² In Bovo Kamo 88b, the Gemara mentions in passing that women are disqualified from testifying. In Sh’vuos 30a the Gemara cites the source in D’vorim 19, 17, “and the two men shall stand” this refers to the witnesses. ³ In matters of monetary law when both sides agree, they may go to a judge that is not qualified to rule by Torah law. See Mishna in Sanhedrin 24a. For example two disputants may decide to bring their dispute before ‘three cowherds’ who are not well versed in Torah law. Once they agree to go, the decision is binding. This may have been the system through which D’vorah was empowered. Initially the people agreed to go to her to adjudicate their differences because of her intimacy with the divine presence. They felt that because of her sanctity they would receive a proper decision. She never had the authority to force people to come to her because a woman is unqualified to judge. ⁴ See note 1. On the surface this seems like a repetition of Tosafot first question. פני יהושע explains: Initially Tosafot understood a our Gemara as saying that the Gemara assumed that women can judge and via kal v’chomer we learn that they can be judged. Tosafot is now revisiting the initial verse on this subject לפניהם – before them. Who are ‘them’? Rashi in Masechet Gittin says that this word refers to the ‘seventy of the elders of Yisro’ail’, mentioned in the verse at the end of Parashat Mishpatim 24, 9. Those are the members of the Great Sanhedrin and must definitely be men, as the verse states in Bamidbor 11, 16, in reference to the Great Sanhedrin “seventy men of the elders of Yisro’ail”. If so Tosafot asks: The reference of לפניהם is to a group that definitely excludes women. How can we learn via kal v’chomer that women can be judges? ⁵ See notes 1 and 4. According to פני יהושע Tosafot is saying that the word לפניהם is not referring to the ‘seventy elders’ but to the many times that the word ‘אלהים – judges’ appears in the Parsha. That word does not exclude women and thus we can learn via kal v’chomer that women who may judge can certainly be judged. ⁶ If לפניהם refers to ‘seventy elders’ we could say that it is needed to exclude women judges. The verse would be teaching us that only judges such as the ‘seventy men of the elders’ are to adjudicate monetary law. But now that we say the verse is not referring to the ‘seventy men’, but rather to the ‘judges’ mentioned throughout the verses dealing with monetary law and we are not excluding women, why is the verse needed at all?

“And it killed a man or a woman.” In Shemot 21, 25, the Torah says: “and if an ox gores a man or a woman”. In the very next verse Shemot 21, 26, the Torah says: “and it will kill a man or a woman”. Our Gemara is clearly referring to verse 26. Tosafot wonders: why doesn't the Gemara quote the earlier verse 25? This is bewildering! For the previous verse “if an ox will gore a man or a woman” should have been cited here as proof that women are equated to men when they are victims of a goring. The second verse is used to derive another ruling: For from verse 26, “and he will kill a man or a woman”, the Gemara expounds in Shor Shenogach Arbo’oh va’Chameeshoh (below 42b): just as the payment for a man’s damages passes to his heirs etc. so too the damages payment of a woman passes to her heirs and not to her husband. Tosafot quotes the Gemara there on 42b: And this is what the Gemara says there: “and he, the ox,will kill a man or a woman”, R’ Akiva says: what does this come to teach us? Perhaps that one is liable for the death of a woman as he is for the death of a man? The verse already says “if an ox will gore etc. a man or a woman. We already know that one is liable when his ox kills a woman. Rather, the verse is needed to compare a woman to a man in regard to the recipient of the post death payment, just as a man’s damages are paidto his heirs etc., so too, a woman’s damages are paid to her heirs.

For all deaths. ‘For all deaths’ can be understood as follows: that just as a man is liable for capital punishment, so too when a woman commits a capital offense she is also liable for capital punishment. Tosafot explains that this is not the meaning of this derivation. The Gemara means to say: That one is liable for capital punishment or for kofer upon killingthem, women, just as one is liable for killinga man, for that is what the verse “and he, the ox,will kill a man or a woman” is speaking about. It is clear that the reference of ‘man or woman’ is to a victim of the goring not to the perpetrator. The words can be translated as “and a man or woman will kill”, but that is taking the sentence out of context. In the Torah the subject usually precedes the verb. In this verse the subject is ‘and he will kill’, he, is the ox, that is mentioned earlier in the verse. Tosafot offers further proof:And in the next Gemaraas well, the Gemara says: because of the loss of hersoul, the Merciful one had pity on her.¹ This is reasonable if we are discussing a woman who is a victim. The Torah requires the perpetrator to pay in order to motivate him to be careful and secure his ox so that it should not gore a woman. This is what is meant by ‘the Merciful one had pity on her’. But if the derivation from this verse is that a woman who is responsible for the death of another should be liable for capital punishment; that is hardly taking pity on her soul. And the Gemara is not speaking about a woman who murdered, and sayingthat she should be liable for capital punishment just as a man is liable for capital punishment.²

footnotes: ¹ The words חס רחמנא עלה do not appear in our Gemara in reference to the verse dealing with comparing woman to man for all deaths in the Torah. In our Gemara this phrase is used to explain why a woman might be included in the verse that speaks of her obligation to offer a sacrifice for atonement. Perhaps Tosafot understood that placing the liability for kofer on one whose ox kills a woman is a function of ‘pity’ on her, because this will cause the would be perpetrator to be more careful when his ox is in the proximity of a woman. If he knows that even if his ox killed a woman, he would not be liable, he may be negligent about guarding his ox. Thus the liability for kofer when an ox kills a woman is an expression of Hashem’s pity on her. ² Tosafot is saying that this is not the source for ruling that a woman who murders is liable for capital punishment. See Rashba for a discussion about how we do in fact know that a woman is liable for capital punishment when she murders. See also אוצר מפרשי התלמוד to our Tosafot, notes 74 and 75, who quotes a מכילתא that according to the text of the Gro specifically says that a woman who murders is liable for capital punishment. One might ask: Why is this not included in our Gemara where all the sources for the liability of women are mentioned?

Because [a woman needs] atonement, the Merciful One had pity upon [her]. The first verse that equates women to men is speaking about the obligation to bring a sacrifice that will atone for a sin. The Gemara says that in the absence of other verses that include women, I might say that the equality of women may be limited only to this verse that speaks of the ability to achieve atonement via a sacrifice. In fact the Gemara is saying that we learn from this verse that women are liable for all punishments, this includes all sins that carry with them any form of ‘punishment’. Without this verse they would not be liable for these sins. Is the liability for women who commit these transgressions a form of compassion? Wouldn’t they be better off if they were not liable at all? If you ask: Since this verse is the source for women’s liability in all mitzvos of the Torah that carry with them punishments, if they would not have been compared to menas relates to punishments at all, certainly that would have been a greater ‘pity’ on them. Women would not be liable for any of the negative commandments of the Torah and because there would be no punishment, she would not need atonement at all? We can answer: That the verse is needed to provide women with an opportunity for atonement for those punishments that are written clearly in the Torahfor women, such as prohibited family relations. That they can be atoned by bringing a sacrifice is the pity that Hashem is showing them.¹

footnotes: ¹ If we only had the verse dealing with atonement, we would say that the sole purpose of this verse is to grant women atonement. The fact that we say that she is liable for all ‘punishments’ of the Torah is derived from the combination of all three verses, where we see that the Torah treats women as men in many other area as well as for atonement. She is also treated as man as far as all punishments are concerned.

[The mishna’s statement] is necessary only with regard to [the] diminishing [value] of the carcass. The Mishna says that the damager and his victim ‘share’ in the payment of damages. This makes sense according to Rav Papa who holds that half payment of a tam is a compensation payment. The victim should receive full payment; he receives only half, so he ‘shares’ in the payment. But according to Rav Huno son of R’ Y’hoshua who holds that the tam’s half payment is a fine, by right the victim should receive nothing. How can his receipt of half payment be thought of as ‘sharing’ in the payment of damages when he should actually not be paid at all? The Gemara answers: That the term ‘the damager and the victim share in the payment’ refers to the rule that when the carcass deteriorates after the goring, that loss is absorbed by the victim. This is the ‘share’ of the victim in the payment of damages. A careful analysis of this rule will show that the Gemara’s initial problem with Rav Huno son of R’ Y’hoshua is not truly solved. See Artscroll note 28. Even though the victim is still receiving that which is not his, because according to Rav Huno son of R’ Y’hoshua he is entitled to nothing and he is receiving half payment minus the deterioration of the carcass, which is a great deal more than he is entitled to,in any case, since the Merciful one gave him the benefit of allowing him to collecthalf of the damages,¹we consider him as ‘sharing’ in the payment for the amountthat the carcass deteriorated between its death as the result of goring and when he sold it.² And he, the victim,cannot say to the damager the reason for the deterioration of the carcass is that the horn of your ox is buried in him, the victim ox**, as we explained earlier (10b, תוספות ד"ה לא נצרכא).** There is good reason to hold the damager liable for the deterioration since the deterioration of the carcass is ultimately a result of the goring. Had his ox not gored the victim there would be no carcass and no deterioration. Tosafot explained earlier that since the victim had the option of selling the carcass as soon as it died, the damager cannot be held responsible.

footnotes: ¹ See אוצר התוספות note 2339 who quotes שיטה מקובצת to Masechet Ketubot who offers the following parable. A person lost one hundred dollars. A kind person gives him a gift of fifty dollars. If he loses any of the fifty dollars, it is considered a loss. So too, he lost his ox because it was gored by a tam ox. The Torah gave him half of the loss. If you take away any of that gift, it is a loss. We may add that this should not be thought of as if the gift was initially half payment minus the deterioration of the carcass, because not always is there a deterioration of the carcass and sometimes he will collect a complete half payment. ² Rosh disagrees with Tosafot explanation that this should be thought of as a loss. He says that in fact our Mishna (14b) that speaks about ‘the damager and the victim share in the payment’ is speaking about a muad ox where the liability is compensation and not a fine. The previous Mishna (9b) that speaks of חבתי בתשלומי נזקו is speaking about a tam. There is an inherent difficulty with Rosh’s explanation. The Mishna there continues with במיטב הארץ – I must pay from the finest land. This is true only of a muad and not of a tam. Perhaps this argument compelled Tosafot to explain the ‘sharing of payment’ as he does.

If [one claims that this is an omission] due to [the fact it omits that the owner does not pay] half of the ransom, this is not an omission. A short review of the Talmudic system as it relates to ‘the Tano taught and left out’, is in order: A) The Gemara will often ask: If a given statement is true, why when a Mishna or Braita discusses this issue and lists related laws is this detail not included? B) The Gemara may answer: The Tano listed only some of the relevant information, but not all. This is an acceptable answer, but with one proviso. C) The Tano will never leave out only one detail or one characteristic. There must be at least two details or characteristics that he left out. The Gemara will always ask: What other detail or characteristic was left out? D) The Gemara will answer: That there is a second detail that was also left out. E) Subsequently there may be a disagreement whether that second detail should have been listed at all and can be considered ‘left out’ or perhaps it doesn't belong on that list altogether. F) As long as the second detail can be thought of as a legitimate detail belonging on the list, the answer ‘the Tano taught and left out’ is upheld. G) If the second detail does not belong on the list, the answer ‘the Tano taught and left over’ is rejected. In our Gemara Rav Huno son of R’ Y’hoshua answers: That the Tano could have said that a difference between tam and muad is that muad will pay if the owner confesses and tam will not. However, the Tano taught some differences between tam and muad and left out others. (B) The Gemara then asks: What else did the Tano leave out? (C) The Gemara answers: He left out the rule of half kofer. A muad pays full kofer and a tam does not pay kofer at all. (D) At this point the Gemara may proceed to (E) and argue that the second detail does not belong on the list at all and cannot serve as a second detail that was ‘left out’. Indeed, after only a casual look at our Gemara it would seem as if this is what the Gemara is doing when it says that the second detail, half kofer cannot be thought of as ‘left out’, because R’ Yosee HaG’leelee holds that a tam does in fact pay half kofer and this does not belong on a list of the differences between tam and muad. This approach to the Gemara is extremely difficult, because there is no reason to say that the Tano must hold like R’ Yosee HaG’leelee in the matter of half kofer and therefore the rule of half kofer cannot serve as a second detail and that the Mishna which does not mention that tam does not pay by his own confession is a contradiction to Rav Huno son of R’ Y’hoshua. (G) Certainly, in defense of Rav Huno son of R’ Y’hoshua we can make the argument that the Tano does not hold like R’ Yosee HaG’leelee and he did indeed leave out the ‘second detail’ of half kofer from the list of differences and the argument that the Tano ‘taught and left out’ is legitimate. (F) Tosafot therefore explains that when the Gemara says that ‘the rule of half kofer cannot be viewed as a second detail’ because the Tano holds like R’ Yosee HaG’leelee, this is not a classic attack on the legitimacy of half kofer as a ‘second detail’ addressed to Rav Huno son of R’ Y’hoshua. (E, G) Rather it is a defense of the opposing view of Rav Papa who holds that half damages are compensation. If we are compelled to say that half kofer is a ‘second detail’ that the Tano left out, Rav Papa has a severe problem: what is the ‘first detail’? The ‘second detail’ left out proves that there must be a ‘first detail’. The ‘first detail’ must be that a tam owner who confesses is exempt and a muad owner who confesses is liable, thus contradicting Rav Papa who holds that half payment is compensation and a tam owner who confesses is also liable. In defense of Rav Papa the Gemara is saying that we are not compelled to say that half kofer must be a legitimate ‘second detail’ (F) that proves the existence of a ‘first detail’. The Gemara says that half kofer must not perforce be a legitimate second detail that was ‘left out’. The explanation of the Gemara’s statement is: That if half kofer was a legitimate ‘second detail’ this would be a difficulty to the one, Rav Papa,who holds that half damages are compensation: What is the ‘first detail’ thatwas left out, that precedes this ‘second detail’ that was left out? For the Tanoonly left out the differenceof half kofer, what difference is there between tam and muad that is the ‘first detail’? It must be the difference of payment by confession. But according to Rav Papa there is no difference between tam and muad, they both pay by confession. The Gemara is saying that we are not compelled to say that half kofer is a ‘second detail’ that was left out, because we can say: That this Mishna on 16bfollows the opinion of R’ Yosee HaG’leelee who holds that a tam does pay half kofer, thus the Tano ‘left out’ nothing. Rav Papa may learn that the Mishna follows R’ Yosee HaG’leelee and there is nothing ‘left out’. Certainly Rav Huno son of R’ Y’hoshua may hold that the Mishna does not hold like R’ Yosee HaG’leelee and half kofer is a ‘second detail’ left out together with the ‘first detail’, the difference between tam and muad as far as payment by confessions is concerned. Although as we said earlier, a casual look at the Gemara would indicate that this is a classic attack on the legitimacy of the ‘second detail’, the explanation that this is actually a defense of the opposing opinion, Rav Pops, is not uncommon. For there is this sort of give and take in the Gemara **in Perek Sh’loshoh Minim (Nozir 38b)**¹ **and in Perek HaCholil (Sukoh 54b).**²

footnotes: ¹ See Tosafot there ד"ה שייר בל יחל who explains that Gemara as Tosafot does here. ² See Tosafot there ד"ה אי משום.

[This braita] is [in accordance with] Rabbi Yosei HaGelili, who says [that when] an innocuous [ox kills a person, one] pays half the ransom. A cursory glance at this sentence would convince one that it is clearly stated in some Mishna or Braita later that R’ Yosee HaG’leelee holds that one is liable for half kofer when a tam kills a person. As we will see in the course of learning this Tosafot, this is hardly the case. Tosafot will discuss why this position is not attributed to other Tanoim, and eventually why and if R’ Yosee HaG’leelee is the most logical choice. Much of the controversy surrounds the interpretation of the words ‘ובעל השור נקי’ – ‘the shor owner is free’ (Shemot 21, 28), what is he free of? There are many interpretations of this verse as we will see in the course of learning this Tosafot. If one would say that the verse is teaching us that the tam shor owner is free from paying half kofer, he would obviously hold that this too is a difference between tam and muad. But we will see as we progress through the Tosafot, that it is possible to hold that these words teach us some other halochoh and even so one may be exempt from half kofer. We must constantly keep in mind that whatever is derived from**‘ובעל השור נקי’– ‘the shor owner is free’ must be weighed against the fact that it is not mentioned in the Mishna on 16b, and if we are to say that it was ‘left out’, we must have a viable ‘second detail’ that was also left out. Before we embark on this journey Tosafot will explain why the very fact that a tam pays half kofer and a muad full kofer is not considered a difference between tam and muad. And the fact that one of the differences between tam and muad is that muad pays complete kofer and tam only pays half kofer, does not qualify as a ‘second detail’ that was left out, because the Tano has alreadytaught that tam pays half damages and muad pays full damages, and** the disparity in kofer payments is included. We already know that a tam pays damages from its body. Only the value of the body of the damaging tam ox can be collected from the tam owner. His owner is not liable for damages that exceed the value of the tam ox. The same is true of the kofer payment of a tam; it must be made only from the body of the tam ox. However, in the case of kofer payment this presents a major difficulty. When a tam kills a person the ox is stoned and one may not have any benefit from its flesh. Obviously, if the payment is to be made from the now stoned body of the tam ox, his victim will receive nothing because it is prohibited to benefit from its flesh. There is always the possibility that the Tam will pay half kofer in instances when the tam ox is not stoned, i.e. when it killed unintentionally. This option will be discussed soon. What we now see is that even if we hold that a tam is liable for half kofer, there are certainly times when the half kofer will be uncollectible, whereas in the case of a muad the full kofer is always collectible. If you ask: The Tano canstill teach another difference between tam and muad, that muad pays kofer even when the ox is stoned, because the payment for a muad is not limited to its body,and a tam when it is stoned is exempt from any paymenteven according to R’ Yosee HaG’leelee because the tam owner can argue to the victim who is claiming payment: bring him, the stoned ox, to court and they,¹ the court,will pay you. Since the stoned ox is prohibited from benefit, there is nothing with which to pay you! See below 41b. We can answer: That this difference between tam and muad is included in the ruling that a tam pays half damages from its body. Once we know that payment from a tam is limited to the value of its body, it is obvious that when the tam is stoned there will be no payment of half kofer. When the Gemara said that the rule of half kofer is a ‘second detail’ that was left out, the Gemara argued that it is not so, because the Tano of the Mishna may hold like R’ Yosee HaG’leelee that tam does in fact pay half kofer and this cannot be listed as a difference between tam and muad. It seems that the only way to deflect the argument that half kofer is a ‘second detail’ that was left out is to attribute the Mishna to R’ Yosee HaG’leelee who holds that one is liable for half kofer. Tosafot will now show us that even if we hold like R’ Akiva that a tam does not pay half kofer there was no need for this to be specifically mentioned by the Mishna as a difference between tam and muad because it is in fact implied in the Mishna.** If you ask: If so, for this reason** that the tam does not pay half kofer when it is stoned, because it pays only from its body, and that is specifically mentioned in the Mishna, why doesn't the Gemara interpret the Mishna even according to R’ Akiva who exempts a tam from half kofer? There are two possibilities for liability: A) When the tam ox will be stoned as is clearly stated in the Torah. B) When the tam ox will not be stoned for a reason that we will soon learn. Tosafot elaborates on possibility A): For when the ox is stoned it is not necessary to teach us that the owneris exempt from paying half kofer, for the Mishna already taught us that a tam pays from his body, and since he pays only from his body, the half kofer cannot be extracted from the tam owner because he can argue to the victim:bring him, the tam ox,to court and they will pay you. Since the ox is prohibited from benefit, there will be no payment. Possibility B): And when the ox is not stoned, for example, by the testimony of only one witness or when the owner admits that his ox killed somebody,both a tam and a muad are exempt from kofer by the rule of Rabbah, who says in Perek Shor Shenogach Es Haporoh (below 43a): an ox that killed a free man unintentionally is exempt, as it says, (Shemot 21, 29,) the ox shall be stoned and also his owner will be put to death. The very next verse establishes that kofer is to be paid in place of the death penalty. The Torah speaks of the stoning of the ox together with the liability of Kofer. From this we learn: Whenever the ox is stoned the owner pays kofer and whenever the ox is not put to death, such as by the testimony of only one witness or the owners admission that their ox killed, the owner does not pay kofer. This applies equally to a tam and a muad. In summation: according to R’ Akiva in both cases a tam does not pay kofer. A) When the ox is stoned because payment cannot be taken from his body. This is indicated in the Mishna when it says that a tam pays from its body. B) When the ox is not stoned there is no liability for kofer at all and there is no difference between a tam and a muad. The Mishna on 16b that does not say that a tam pays half kofer may be following the opinion of R’ Akiva who holds that tam does not pay half kofer and there is a difference between a tam and a muad when the ox is stoned, but that difference is indicated in the Mishna, which says that tam pays only from its body. This does not qualify as a ‘second detail’ that was left out, because it is in fact mentioned in the Mishna. Tosafot concludes: If we would only consider the rule of half kofer, we could have said that the Mishna does indeed follow R’ Akiva, but there is another consideration. We can answer: That it is truly so, that according to R’ Akiva as well the rule of half kofer is not ‘left out’, because it is implied in the Mishna that a tam does not pay half kofer because it is only paid from its body and the body is prohibited from benefit. And the reason that the Gemara does not say about the Mishna on 16b: This is the opinion of R’ Akiva as we have asked, because he expounds the verse**** ובעל השור נקיin Shor Shenogach Arbo’oh vaChameeshoh (below 42a): he, the tam owner,is free from paying the value of a slave. When we absorb this information we become aware that saying the Mishna follows R’ Akiva would create another problem. And if it, the Mishna on 16b,follows the opinion of R’ Akiva the Mishna should teach that a tam is exempt from even half the money paid for killinga slave. And if you answer that the Tano did not list everything and left out this difference what is the ‘second detail’ that has also beenleft out that would justify that this first difference was indeed left out? See introduction to previous Tosafot B) and C). For if we are to accept the value of a slave as ‘left out’ because he also left out half kofer which can serve as the ‘second detail’, that does not qualify as a ‘second detail’ that was left out, because we have learned in the Mishna that a tam pays half damages from its body. In fact, that there is no payment of half kofer has not been left out, as Tosafot has explained earlier. We cannot attribute our Mishna to R’ Akiva because the difference between tam and muad in regard to the payment of the thirty sh’kolim for killing a slave is not mentioned and we have no ‘second detail’ that was also left out. As we mentioned in the introduction, there is no Mishna or Braita where we find that R’ Yosee HaG’leelee clearly states that a tam pays half kofer. Tosafot wonders why our Gemara assumes that this is his opinion. If you ask: How does the Gemara know that R’ Yosee HaG’leelee holds that a tam pays half kofer? If it is because he later (42a)expounds the verse**** ובעל השור נקי as saying that the tam owner is free from paying for the value of fetuses when the tam causes their mother to abort, (Shemot 21, 22), and he does not expound the verse to indicate that the tam is free from paying half kofer, which implies that he holds that a tam is truly liable for half kofer. Perhaps he actually holds that a tam owner is exempt but a special verse is not needed to teach us this. For in possibility A) when the ox is stoned, the owner is exempt from half kofer because it would have to be paid from the tam’s body and the tam owner can say: bring him to court and they will pay you. Since this is not possible because the flesh is prohibited from benefit, no payment will be made. And in possibility B) when the ox will not be stoned because we only have the testimony of one witness or the owner’s admission, the tam owner is exempt by Rabbah’s rule, that kofer is paid only when the ox is stoned. It is entirely possible that R’ Yosee HaG’leelee also holds that a tam does not pay half kofer, but he needs no special verse to derive this. Tosafot concedes that this argument is in fact correct. The Gemara does not mean that R’ Yosee HaG’leelee definitely holds that tam pays half kofer. It means that he could hold that tam pays half kofer.² We can answer: That which the Gemara says that R’ Yosee HaG’leelee holds that tam pays half kofer is not because we have heard from a definite source that he holds this position,rather, the Gemara means to say: That he could hold that a tam pays half kofer in case B)**** when the ox is not stoned, and he will not hold like Rabbah that when the ox is not stoned there is no liability for kofer, as R’ Tarfon holds later in the end of Kaitzad HoRegel (26a): That even tam pays full kofer ³ This cannot be in possibility A) because the ox is stoned and cannot pay from its body. It must be in possibility B) when the ox is not stoned. He cannot hold of Rabbah’s rule that when the ox is not stoned there is no kofer. R’ Yosee HaG’leelee might hold that tam pays half kofer as Tosafot has explained, but what if he does not? How will we explain why the Mishna does not mention this difference between tam and muad, that tam does not pay kofer and muad does?** And even if R’ Yosee HaG’leelee holds that tam does not pay half kofer because of Rabbah’s rule** that one is liable for kofer only when the ox is stoned, that does not qualify as a difference that was ‘left out’, which would prove that something else was also ‘left out’, as we explained. In case A) tam does not pay half kofer because it cannot be collected from its body. This information is mentioned in the Mishna in the sentence “that a tam pays from its body”. In case B) when the ox is not stoned and kofer is not paid, there is no difference between tam and muad. There is another opinion among the Tanoim that does not derive fromובעל השור נקי that the tam is not liable for half kofer. According to Tosafot’ reasoning he too may hold that a tam is liable for half kofer. And it is also true that the Gemara could have said that this Mishna on 16b follows the opinion of R' Shimon ben Zomo, who expounds the verse ובעל השור נקי there as saying: He, the tam owner, is clean from the value of the hide, it is no longer his and he has been cleaned out. He too, may hold that tam is liable for half kofer.⁴ And according to him as well kofer does not qualify as a difference**‘left out’.** Either because a tam does in fact pay half kofer when it is not stoned, and that is indicated in the Mishna when it says that tam pays half damages and kofer is included, (B) or even if it does not, it is already stated in the Mishna that a tam does not pay kofer when the ox is stoned (A) by saying that a tam pays only from its body. The primary intent of Our Gemara that says the Mishna on 16b follows R’ Yosee HaG’leelee is to make the point that it does not follow R’ Akiva who holds that a tam is exempt from the payment of killing a slave since this difference between tam and muad is not mentioned in the Mishna. We cannot say that it was ‘left out’; because that would necessitate saying that there is a ‘second detail’ left out. The only possibility for a ‘second detail’ is the difference of payment by confession and this would present a problem to Rav Papa who holds that half damages is compensation and is paid by confession.

footnotes: ¹ See Rashi 41b ד"ה אמר לו ר' עקיבא where he clearly says that the court will pay you. Obviously, Rashi has a difficulty with the word וישלם which refers to the ox itself. The ox will not pay in any case. Perhaps in Rashi’s text the word is וישלמו – and they will pay. ² In the context of our Tosafot where the we must only answer why the rule of half kofer is not something that has been ‘left out’ of the Mishna, it is not necessary to be able to definitely say that this is the position of R’ Yosee HaG’leelee. It is sufficient to say that this may be the position of R’ Yosee HaG’leelee and we have no contradiction to Rav Papa who holds that half damages is compensation as opposed to a fine. ³ See Maharsho who wonders why the Gemara does not attribute the Mishna on 16b to R’ Tarfon who clearly holds that a tam pays kofer. He suggests that since it is never clearly stated that R’ Tarfon holds that a tam pays half kofer, but that he pays full kofer in the domain of the victim, the Gemara does not want to attribute the payment of half kofer to him. ⁴ The loss of the value of the hide is the same for a muad as for a tam.