Bava Kamma - Daf 5
- מניינא דרבי חייא למעוטי מוסר ומפגל
After presenting Rebbe Oshaya’s list of thirteen avos and Rebbe Chiya’s list of twenty-four, the Gemara explains that our Mishnah’s mentioning a number of (four) avos is intended to exclude Rebbe Oshaya’s additional avos, and Rebbe Oshaya’s number is intended to exclude Rebbe Chiya’s additional avos. Rebbe Chiya’s number is למעוטי מוסר ומפגל – to exclude an informer (who causes someone’s possessions to be confiscated), and one who makes someone’s korban piggul. He did not list מפגל because he does not discuss damages specific to kodashim. He did not list an informer, because this damage is inflicted through speech alone, ובדיבורא לא קמיירי – and he does not discuss damage inflicted through speech. Although he did list מוציא שם רע – one who slanders his wife (accusing her of adultery), דיבורא דאית ביה מעשה הוא – its damage was speech that also involved an act (i.e., relations with her, without which he is not liable). Although עדים זוממים is listed, which involve only speech (their testimony), רחמנא קרייה מעשה – Hashem called it an action, as it says: ועשיתם לו כאשר זמם לעשות לאחיו – and you shall do to him as he plotted “to do” to his brother.
- כולן כאבות לשלם ממיטב
The Gemara asks that although the term avos in our Mishnah is understandable, because the four primary damagers all have תולדות – subcategories, but according to Rebbe Oshaya and Rebbe Chiya, who list avos which do not have any tolados, in what sense are they called “avos”? Rebbe Abahu answers: כולן כאבות לשלם ממיטב – They are all like avos, in that they must pay from superior grade land. The Gemara explains the source that all forms of damages pay with superior land, although it was only written regarding shein and regel: אתיא תחת נתינה ישלם כסף – it is derived with a gezeirah shavah from the words tachas, nesinah, yeshalem, and kesef. Rashi explains that these terms appear in pesukim about the four avos of our Mishnah, which all require paying from superior land (as derived from shein and regel). All damages listed by the other Baraisos include one of these four terms and are derived from the four avos to pay from superior land.
- Avos can be derived from בור and one other, and they were written להלכותיהן
Although the Mishnah taught that no av can be derived from any other, Rava says: וכולהו כי שדית בור בינייהו – and all of [the avos], if you put bor among them (i.e., if the Torah had taught bor, which is uniquely stationary, and any other av), אתיא כולהו במה הצד– all [others] could be derived from those two with the rule of “common characteristic,” לבר מקרן – except for keren, which could not be derived from them, שכן מועדין מתחילתן – because they are all mu’ad from the beginning, as opposed to keren. He adds that there is an opinion that even keren could be derived. The reason they were all written separately, although they could have been derived from a צד השוה, is להלכותיהן – to teach their unique laws:
Keren has a distinction between a tam and a mu’ad. Regel and shein are exempt for damages inflicted in a public domain. Bor is exempt from paying for utensil damages, or (according to Rebbe Yehudah, who disagrees), for a person who dies there. Fire is taught to exempt it from טמון – hidden items destroyed by it, or (according to Rebbe Yehudah, who disagrees), to obligate it for scorching a plowed field or stones.
