Bava Kamma - Daf 25
- Machlokes if keren in private property pays נזק שלם
In the next Mishnah, Rebbe Tarfon says that keren damages inflicted in the ניזק’s property are liable to pay in full, even for a tam. The Chachomim say he pays half-damages, like normal keren. Rebbe Tarfon proves his position from a kal vachomer: If shein and regel are exempt in רשות הרבים, yet pay in full in רשות הניזק, then keren, which pays half-damages in רשות הרבים, certainly should pay in full in רשות הניזק!? The Chachomim respond: דיו לבא מן הדין – it is sufficient for the law derived from the kal vachomer (keren in רשות הניזק) להיות כנדון – to be like the source law (keren in רשות הרבים). Since keren in רשות הרבים only pays half-damages, we cannot derive to pay fully in רשות הניזק. Rebbe Tarfon responded by restructuring the kal vachomer to derive keren in רשות הניזק from regel in רשות הניזק: If keren is more stringent than regel, that it pays in רשות הרבים where regel is exempt, than in רשות הניזק, where regel pays full damages, certainly keren should pay that amount!? The Chachomim respond that we still say "דיו", that keren cannot be derived to be stricter than its base law in רשות הרבים.
- The source of דיו: Miriam waiting for seven days
The Gemara wonders if Rebbe Tarfon can disagree with the entire principle of דיו, since its source is in the Torah. A Baraisa teaches the source for kal vachomer when Hashem said regarding Miriam’s tzaraas: ואביה ירק ירק בפניה הלא תכלם שבעת ימים – if her father had spit in her face, would she not be humiliated for seven days?! ק"ו לשכינה ארבעה עשר יום – This would indicate, through a kal vachomer, that one admonished by the Shechinah, which is more severe, should be quarantined for fourteen days. Yet, she quarantined for only seven days, which teaches: דיו לבא מן הדין להיות כנדון – it is sufficient for the law derived from the kal vachomer to be like the source law and does not exceed the seven days of the source. How can Rebbe Tarfon disagree? The Gemara answers that he agrees to the principle of דיו but holds it does not apply היכא דמפריך ק"ו – where the kal vachomer would be nullified. Regarding Miriam, the kal vachomer teaches to quarantine for seven days, and דיו prevents it from being fourteen days. Regarding keren in רשות הניזק, since we would know it pays half-damages without a kal vachomer, then applying דיו would stop the kal vachomer from teaching anything!? Therefore, Rebbe Tarfon does not apply דיו here.
- The source that a mat contracts tumah from a מת
Rav Acha of Difti asked Ravina that a Baraisa does not apply דיו even where it would not nullify the kal vachomer: A Baraisa derives that a mat (which is not container) can contract tumah from a corpse, based on a kal vachomer: ומה פכין קטנים שטהורים בזב – if small earthenware jars, which are tahor regarding zav (because earthenware only contracts tumah through its airspace, and this jar’s neck is too narrow for a zav’s finger to be inserted. This also excludes it from contracting through "היסט", moving), מטמא במת – yet it does contract tumah from a corpse when they are under one roof, then a mat, which contracts tumah from a zav (because it is included in "משכב", something made for lying on), should certainly become tamei from a corpse!? Here, דיו can be applied without nullifying the kal vachomer: we can derive that the mat contracts tumah until evening (as it does from a zav), and דיו would prevent it from becoming tamei for seven days (like normal corpse tumah). Still, the Tanna did not apply דיו!? Ravina answered that Abaye taught that this Baraisa is not deriving tumah from a corpse, but tumah from a sheretz, which is only until evening.
