The Gemara answers that Tzeroros is a Toldah of Regel because one must pay
"Min ha'Aliyah." Even though Rava expressed doubt about this Halachah of
"Min ha'Aliyah" for Tzeroros, Rav Papa maintains that one must pay "Min
ha'Aliyah" and that is why he said that Tzeroros is a Toldah of Regel.
The Gemara continues and says that according to Rava, who is in doubt
whether or not Tzeroros pays "Min ha'Aliyah," Tzeroros is nevertheless a
Toldah of Regel because of the exemption from damages caused in Reshus
ha'Rabim.
There are a number of difficulties with the Gemara, especially in light of
Rashi's comments.
1. Why does the Gemara not answer that Tzeroros is considered a Toldah of
Regel because it is Mamon and not Kenas (because of the Halachah l'Moshe
mi'Sinai), as Rashi explains? In contrast, a Keren Tamah that pays Chatzi
Nezek is a Kenas! (GILYON in Shitah Mekubetzes; see MAHARSHAL.)
3. Why does the Gemara not answer that Tzeroros is a Toldah of Regel because
the damage is caused by the foot? (HAGAHOS CHAVOS YA'IR on the Rif)
2. Rashi implies that had there been no Halachah l'Moshe mi'Sinai, Chatzi
Nezek of Tzeroros would be a Kenas just like the Chatzi Nezek of Keren
Tamah. This is true, however, only according to the opinion that holds that
Chatzi Nezek of a Keren Tamah is a Kenas (15a). But it is Rav Papa himself
there who maintains that Chatzi Nezek of all forms of Tam is *Mamon* and not
Kenas! (GILYON in Shitah Mekubetzes, PNEI YEHOSHUA)
4. Why does the Gemara insist that Rav Papa calls Tzeroros a Toldah of Regel
because one must pay for Tzeroros "Min ha'Aliyah?" Perhaps he, too, agrees
with Rava that it is a Toldah of Regel because one is exempt from the damage
of Tzeroros in Reshus ha'Rabim! (RASHBA, PNEI YEHOSHUA)
5. Why would we have considered Tzeroros to be a type of Keren, had the
Halachah l'Moshe mi'Sinai not taught that it is Mamon? The Gemara later
(18a) clearly seems to learn that Tzeroros is a form of damage that comes
about through the normal conduct of an animal ("Orchei"), just like Regel.
It should be Mamon even without the Halachah l'Moshe mi'Sinai! (TOSFOS
SHANTZ in Shitah Mekubetzes)
(a) RASHI explains that the Halachah l'Moshe mi'Sinai teaches us that the
payment of Tzeroros is not Kenas but Mamon. It is clear from Rashi that,
logically, we would have thought that Tzeroros is a Toldah of Keren because
it is not something that happens through the normal conduct of an animal. It
seems that Rashi had the Girsa cited by the Tosfos Shantz and others, in
which the Gemara includes the words, "Hilchesa Gemiri Lah *d'Mamona Hu*."
Why, then, does the Gemara ask what makes Tzeroros a Toldah of Regel? The
Gemara just stated that it is Mamon like Regel and it is not Kenas (as we
asked in our first question)!
Our second question answers this question. Rav Papa himself does not hold
that every payment of Keren is Kenas. Rather, he holds that every payment of
Keren is Mamon. Hence, this quality of being Mamon does not make Tzeroros
more similar to Regel than to Keren, since the payments of both Regel and
Keren are Mamon. Therefore, according to Rav Papa, the Halachah l'Moshe
mi'Sinai must be teaching us that Tzeroros is similar to Regel with regard
to a different Halachah. The Gemara concludes that it is similar to Regel
with regard to paying "Min ha'Aliyah." When the Gemara said that the
Halachah l'Moshe mi'Sinai teaches us that it is Mamon, it meant that
according to those who hold that Keren is normally Kenas, this is what the
Halachah l'Moshe mi'Sinai is teaching (i.e. that Tzeroros is Mamon and not
Kenas). This answers the first and second questions.
Regarding the third question, why did the Gemara not say that Tzeroros is a
Toldah of Regel because it is done by the Regel, the answer is that there is
another reason to compare Tzeroros to *Keren*. Tzeroros is similar to Keren
in that it is not "Orchei" to cause damage in this manner, like Keren.
Therefore, Tzeroros has elements of both Regel and of Keren. We must
therefore search for another quality that makes it similar to Regel, so that
it will be more similar to Regel than to Keren. (See MAHARAM, and GILYON
cited by Shitah Mekubetzes.)
This answers the fourth question as well, regarding why Rav Papa does not
agree with Rava who says that the reason Tzeroros is a Toldah of Regel is
because one is exempt for it in Reshus ha'Rabim. Even though Tzeroros is
similar to Regel with regard to its exemption in Reshus ha'Rabim, it is also
similar to Keren in another way -- it pays only Chatzi Nezek and not Nezek
Shalem. Since it is similar to Regel in two ways (the damage is caused by
the foot, and it is exempt in Reshus ha'Rabim), and it is similar to Keren
in two ways (it is not "Orchei," and it pays only Chatzi Nezek), there is no
reason to relate it to Regel more than to Keren. Rav Papa, therefore, must
hold that Tzeroros pays "Min ha'Aliyah," and thus it is more similar to
Regel than to Keren. Rava, on the other hand, holds that Chatzi Nezek of
Keren is normally a Kenas and not Mamon, and yet the Halachah l'Moshe
mi'Sinai of Tzeroros teaches that its payment of Chatzi Nezek is *Mamon*, as
we mentioned above. Therefore, even if Tzeroros does not pay "Min
ha'Aliyah," it is more similar to Regel than to Keren. (A similar
explanation is offered by the TALMIDEI RI in the Shitah Mekubetzes.)
Regarding the fifth question, how does Rashi understand the Gemara later
(18a), it seems that Rashi learns that the Sugya here differs with the Sugya
there over this point. Our Gemara maintains that Tzeroros is not considered
"Orchei," and therefore it learns that the Halachah l'Moshe mi'Sinai teaches
that Tzeroros is considered Mamon and not Kenas, even though it is not
"Orchei," while the Gemara later maintains that Tzeroros *is* "Orchei."
(According to the Gemara on 18a, it would be obvious why Tzeroros is called
a Toldah of Regel and not a Toldah of Keren.)
(b) TOSFOS (DH l'Fotro) and the ROSH and other Rishonim explain that
Tzeroros is damage done while the animal is behaving in its normal manner,
"Orchei," and therefore logically it should be a Toldah of Regel. The
Halachah l'Moshe mi'Sinai does not teach that it is Mamon but rather that it
pays Chatzi Nezek and not Nezek Shalem. (See also TOSFOS SHANTZ in the
Shitah Mekubetzes.)
RASHI himself takes this approach to the Halachah l'Moshe mi'Sinai of
Tzeroros in Shevuos (33a) and Kesuvos (41b). As we explained above, Rashi
maintains that the Sugyos argue with regard to what the Halachah l'Moshe
mi'Sinai is teaching.
This explanation conforms with the statement of the Gemara later (18a), as
we pointed out, and it thus answers four of the five questions that we
asked. The Gemara does not contrast Tzeroros with Keren by calling it
"Mamon," because Chatzi Nezek of Keren is also Mamon according to Rav Papa.
The reason the Gemara does not say that Tzeroros a Toldah of Regel due to
the fact that it is "Orchei" is because this similarity is countered by the
fact that it pays Chatzi Nezek (like Keren) and not Nezek Shalem.
The only question that remains is why the Gemara did not suggest that Rav
Papa calls Tzeroros a Toldah of Regel for the reason that Rava gives -- that
it is exempt in Reshus ha'Rabim. The RASHBA answers that the Gemara had a
tradition that for damage caused by Tzeroros, one pays "Min ha'Aliyah" and
therefore it attributes this opinion to Rav Papa, since we have no previous
knowledge that he questions or argues with this Halachah (in contrast to
Rava).
MAHARI KOHEN TZEDEK (cited by the Shitah Mekubetzes) explains that the
Gemara understood Rav Papa's statement to mean not only that some Toldos are
similar to their Avos and some are dissimilar to their Avos, but that the
Toldah of Tzeroros itself is in some way similar to its Av and in some way
dissimilar. Since Rav Papa does not mention that he was in doubt regarding
some of the Halachos of Tzeroros, we may infer that the only way in which
Tzeroros is dissimilar to its Av is that it pays Chatzi Nezek. With regard
to paying Min ha'Aliyah and all other Halachos, Tzeroros is similar to
Regel, since the Halachah l'Moshe mi'Sinai deals only with paying Chatzi
Nezek and not with any of the other Halachos.