ד'ה אבל במחוברת
If we only had a verse that spoke of an unattached horn, we would say that the difference of tam and muad applies only to an unattached horn,
but when goring with an attached keren , I would sayit is totally, (1) even the first time, a muad,
Tosfos tells us the practical difference that would result from what I might have thought:
That one must pay full payment even the first time.
This requires some explanation. At this point in the G’moro full payment for an attached keren is not mentioned in the Torah. That I might have thought that there is reason to pay in full, is not an adequate reason to require full payment. There must be some means of deriving a new rule, to require a payment that is not mentioned in the Torah. As we have already seen in Tosfos (2a ד'ה ולא) the G’moro later (5b) discusses the possibility of learning one av from the other. It is that G’moro that Tosfos uses to search for a source for the new ruling that an attached keren must make full payment.
The G’moro there concludes that all of the avos could be known, had the Torah only written bor and one other av. The G’moro there goes on to explain why the Torah did in fact write all of the Avos. There is one exception, keren, which may not be able to be derived from bor and one of the others. The G’moro says that the derivation of keren depends on a dispute among the amoroim. One holds that we could not learn keren from the other avos because all the others are initially muodim, it is usual for them to damage, whereas keren is not. It is therefore less likely to be liable, and we therefore cannot derive keren from the others. There is a second opinion there, that keren is more likely to be liable than the other avos, because of all the avos, it is the only one that harms intentionally. This amoro views the characteristics of keren as more likely to be liable than the others, so the others can be used as a source for keren. Tosfos will now show us how our G’moro which says that I would think that an attached keren should initially be a muad should be viewed in light of the G’moro on (5b).
And if you ask: From where would we derive that an attached keren makes full payment?
Tosfos suggests two possible sources for the attached keren, first:
if from the unattached keren by a kal v’chomer and say that if the unattached keren is liable then the attached keren should certainly be liable? Then it should be sufficient (2) to give it the rule of an unattached keren and it should only pay half.
The second possible source for an attached keren:
If you want to learn attached keren from the other avos, as the G’moro says on (5b) that all the avos could be derived from bor and one of the others, that makes sense according to the one who says that keren is stronger than the other avos and is more likely to be liable, because keren has intent to destroy, and even keren can be derived from the other avos, as Rabainu Tam has explained that the opinion referred to on (5b) as saying keren is stronger, is actually the one who is mentioned later on (15a) as the one who holds that half payment of keren is a financial obligation, for he holds that ordinary oxen are not assumed to be guarded. That means that we cannot assume that they will not gore others and that there is no need to take measures to prevent them from goring. Rather, we must anticipate the possibility that they might gore, and one is responsible to prevent them from doing so. When he does not take those measures, he is liable for not fulfilling his responsibility.
According to this opinion the likelihood of attached keren damaging is no less that the other avos and we could derive the attached keren from the other avos.
However, according to the one who says that half payment is a fine, (3) because he holds that ordinary oxen are assumed to be guarded, and it is not necessary to take precautions to prevent oxen from goring, an attached keren cannot be derived from the other avos, as the G’moro says later on (5b), if you put bor together with any one of the other avos, the other avos could be derived from the combination, (4) with the exception of keren, because one can refute the attempt to learn it from the other avos by arguing that it is not a fair comparison, since all the other avos are initially muodim, which means that it is the norm for them to cause damage as opposed to keren, which is assumed to be guarded, and not likely to cause damage.
We are now faced with the problem of understanding how according to the one who holds that half payment is a fine, our G’moro says that I would say that an attached keren is fully liable? There seems to be no source for such a conclusion.
Tosfos question is based on the understanding that when the G’moro says “I would say” that attached keren pays in full, is that the conclusion would be correct. Thus, Tosfos has attempted to show why that conclusion would in fact be correct. In Tosfos solution, he will say that this understanding of “I would say” is not necessarily so. “I might say” can mean that I might erroneously say.
And one can answer: That according to the one who says half payment is a fine, and that ordinary oxen can be assumed to be guarded, that which the G’moro says:but as a far as an attached keren, I might say that it is initially a muod and pay in full even the first time it damages, does not mean to say that a special verse is actually needed to teach me that attached keren is not a muod, and that if not for the verse I would correctly conclude that an attached keren is required to make full payment.
If one were to follow the regular systems of deriving one av from another, one could not logically reach the conclusion that an attached keren must make full payment, as we have already explained in Tosfos question.
Rather, what is meant is the Tanno needed to teach us by citing proof from a verse, that an attached keren as well is included in the term “goring”, so that you might not erroneously conclude that the term “goring” is limited to only an unattached keren, such as the iron horns of Tzidkiyoh, but with an attached keren, it is initially the norm for an ox to damage,and we could learn from bor and one of the other avos that attached keren is initially liable for full payment. To avoid making such an error the Braiso cited the verse of “the horns of a r’aim are his horns”, with them he shall gore etc. This shows that goring with an ordinary attached keren is included in the term goring. There is no room for a possible error.
(1) Totally is the literal translation. Here it is used in reference to time. It is always a muad.
(2) One of the rules of kal v’chomer we will learn about later in the Maseches is dayo דיו, it is sufficient to establish a new financial obligation with the kal v’chomer, but we cannot create a greater financial obligation based on a kal v’chomer that uses a lesser obligation as its source. For example in the case we are discussing, if we were to learn attached keren from unattached keren, which pays only half, we cannot conclude that an attached keren should pay more than half. That would be creating a greater payment from a lesser payment and kal v’chomer cannot do that.
(3) As opposed to a financial obligation because of his negligence of not guarding his oxen to prevent them from goring. The one, who holds that half payment is a fine, believes that essentially one need not take precautions to prevent oxen from goring. The torah’s insistent on half payment is a fine, not a financial obligation. The differences between the nature of the obligation, financial or fine will be discussed later in the G’moro.
(4) See Tosfos 2a, ד'ה ולא, note 1, for an explanation of how any of the avos can be derived from a combination of bor and one of the others.
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