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Bava Kama, 18

18b

QUESTION: The Gemara concludes, according to Rava, that Rebbi Elazar and the Chachamim -- who argue whether the owner of a dog that ignites someone else's property with a "Chararah" pays Chatzi Nezek or Nezek Shalem -- both hold like Sumchus who says that one pays Nezek Shalem in a case of Tzeroros. They only argue in a case where the dog does an unusual act in the way that it ignites the property with the Chararah. Since there is a Shinuy, the act is a Toldah of Keren. The Chachamim hold that the owner pays Chatzi Nezek, like in any case of Keren, and Rebbi Elazar holds that he pays Nezek Shalem, because the dog damaged the property in the Chatzer of the Nizak, and Rebbi Elazar holds like Rebbi Tarfon that for damage of Keren in Reshus ha'Nizak one must pay Nezek Shalem mi'Gufo.

RASHI (DH Amar Lach) explains that when the Gemara says "d'Shani b'Tzeroros," that the dog did an unusual act, it means that the dog threw the firebrand with its hand onto the pile of straw (or other flammable material). The reason why Rashi explains that the dog *threw* the firebrand onto the pile is in order to make it a case of Tzeroros, so that it should not be a case where the dog caused the damage directly, which would be a normal case of Keren. Rashi explains that it is a case of Tzeroros because the Gemara relates the case to the argument of Sumchus and the Rabanan and says that the Tana'im of the Beraisa hold like Sumchus; if it would not be a case of Tzeroros, they would not have to hold like Sumchus, because one would pay Nezek Shalem for the damage done in the Chatzer ha'Nizak even without Sumchus, because of the Halachah of Keren.

Why, though, does the Gemara have to make this a case of Tzeroros altogether? If we are discussing a Machlokes of Rebbi Tarfon and the Rabanan whether Keren in Chatzer ha'Nizak pays Nezek Shalem or Chatzi Nezek, the Gemara should say simply that the case of the dog that damages a pile is where the dog simply placed the firebrand on the pile directly, with its mouth with a Shinuy (in an unusual manner), and the argument is whether normal Keren (which is not Tzeroros) pays Chatzi Nezek or Nezek Shalem when the damage is done in the Chatzer of the Nizak! Why do we have say that the case involves Tzeroros at all? (TOSFOS 18b, DH Bein)

In fact, Rashi himself (DH d'Dachik La Alma) explains that this is a way of explaining the Machlokes between Rebbi Elazar and the Chachamim in the Beraisa. They argue in a case where the animal puts the firebrand directly on the pile and burns it, such that no Tzeroros is involved! The question is whether the owner pays Nezek Shalem or Chatzi Nezek for the area that the firebrand burned ("Makom ha'Gacheles").

Also, when the Gemara first suggests that the Machlokes between Rebbi Elazar and the Chachamim is the same as the Machlokes between Rebbi Tarfon and the Rabanan, and the case is when the dog did an unusual act, Rashi (18a, DH Ela Kegon d'Shani) explains that the Shinuy was that the dog took the firebrand in its mouth and placed it on the pile! The Rishonim explain that when the Gemara there says "d'Shani b'Gacheles," it is the exact same answer that the Gemara here -- at the end of the Sugya, according to Rava -- is giving when it says "d'Shani b'Gacheles" (see Tosfos DH Bein, and see Chart, footnote #5). Why there does Rashi explain that the dog placed it on the pile, instead of explaining that the dog threw it, as he explains here?

From Rashi there it seems that the question does not involve Tzeroros, but rather a regular case of Keren, as he explains later (on 18b), and the Gemara is asking how much must the owner pay for the damage at the "Makom ha'Gacheles," the damage done to the place that the firebrand touched first.

Furthermore, in the same comment there (18a, DH Ela Kegon), Rashi continues and says that the Machlokes between Rebbi Elazar and the Chachamim *is* about Tzeroros with a Shinuy! Rashi says that there *is* Tzeroros involved, even though the Gemara explains that the Machlokes is the same as the Machlokes between Rebbi Tarfon and the Rabanan! Why does Rashi say, in the beginning of his comments, that the dog *placed* the firebrand on the pile, and then, in the end of his comments, he continues and says that the case is discussing *Tzeroros*, a case, seemingly, where the dog *throws* the firebrand onto the pile (like Rashi explains on 18b)? (See SHITAH MEKUBETZES in the name of GILYON, PNEI YEHOSHUA, MAHARSHA in Mahadura Basra, MAHARAM SHIF.)

ANSWERS:

(a) TOSFOS answers that the Gemara (18b) explains that the Chachamim who argue with Rebbi Elazar hold like Sumchus and that the question concern Tzeroros of Keren and not just Keren, because the Chachamim in the Beraisa state simply that one pays Chatzi Nezek and they do not specify that one pays Chatzi Nezek only for the "Makom ha'Gacheles," the place that the firebrand touched and burned first. This implies that one pays Chatzi Nezek for the *entire* property that was burned.

However, the damage done to the rest of the field, besides the "Makom ha'Gacheles," is only damage of Tzeroros. Even if the dog placed the firebrand down onto field, when the fire spreads it should be considered Tzeroros, according to Rebbi Yochanan later (22a). Rebbi Yochanan and Reish Lakish there argue whether damage caused by one's flame is considered like "Chitzav," his "arrow" (Kocho), or whether it is considered his property (Mamono), just like a person's animal. According to Reish Lakish, any damage caused by the firebrand is like damage caused by normal Keren, like an animal that damages, and the owner is Chayav to pay like in a case of normal Keren, and not like in a case of Tzeroros. According to Rebbi Yochanan, though, the Gemara there explains that when a person shoots an arrow, he is Chayav for the damage done, but when an animal "shoots" an arrow, he is Chayav because of Tzeroros. Therefore, if the dog places the firebrand on the pile and it burns the rest of the field, when the rest of the field burns it is through "Kocho," or Tzeroros, of the dog, and one would not be Chayav to pay Nezek Shalem according to the Rabanan who argue with Sumchus and who maintain that for Tzeroros one pays Chatzi Nezek.

This is why the Gemara finds it necessary to explain that the case is one of Tzeroros of Keren, and not a case of regular Keren -- because of the implication of the Beraisa that there is Tzeroros involved, since the Beraisa seems to be discussing the rest of the field as well, which is certainly Tzeroros according to Rebbi Yochanan.

If Rashi agrees to this, then when he writes later that when the Gemara could have explained the Machlokes between Rebbi Elazar and the Chachamim to be discussing regular Keren and not Tzeroros of Keren, and they are discussing the "Makom ha'Gacheles" alone, the Gemara would be limiting the Halachah of the Beraisa, and the Gemara prefers not to limit it. Rashi later indeed explains the Beraisa in such a manner only because he was forced to do so -- in order to show that Rebbi Elazar might not hold like Sumchus, and that Rebbi Elazar in the Beraisa is not discussing a case of Tzeroros at all.

What about the words of Rashi (18a), who mentions that the dog took the firebrand in its mouth and placed it on the pile, and does not mention that the dog threw it, even though he is discussing the same case (of "Kegon d'Shani b'Gacheles")? The GILYON cited by the Shitah Mekubetzes explains that Rashi there indeed is explaining that the Machlokes involves only the "Makom ha'Gacheles." Why, though, does Rashi there explain in that manner? Perhaps he means to say what TOSFOS RABEINU PERETZ (in the Shitah Mekubetzes) says later -- that the Gemara at the end of the Sugya states clearly what this case (of "d'Shani b'Gacheles") is referring to, and it says that the Machlokes between Rebbi Elazar and the Chachamim, according to Rava, is when the dog did an unusual act in the way that it did damage with the firebrand, and the Gemara states that both of the Tana'im in the Beraisa hold like Sumchus.

Why does the Gemara not state this earlier (18a), when it first mentions this case (of "d'Shani b'Gacheles")? (In fact, Rashi on 18a, DH Ela Kegon, does state this there as well.) Tosfos Rabeinu Peretz explains that there, the Gemara was satisfied with explaining that the Machlokes involved the "Makom ha'Gacheles" alone, and did not involve the rest of the pile and field. Therefore, the Gemara did not have to say that it is a case of Tzeroros and explain that Rebbi Elazar and the Chachamim hold like Sumchus. Only later was the Gemara working with the Maskana of the Sugya, and not merely with a tentative answer, and thus the Gemara felt it necessary to give a more encompassing answer and to explain that Rebbi Elazar and the Chachamim argue not only with regard to the "Makom ha'Gacheles" but also with regard to the entire field. That is why the Gemara at that point says that both Rebbi Elazar and the Chachamim hold like Sumchus, and they are discussing a case of Tzeroros of Keren.

This might be the intention of Rashi when (on 18a) he explains that the Gemara is just discussing regular Keren, and here (18b) he explains that the Gemara is discussing Tzeroros of Keren.

However, this answer does not suffice to explain the words of Rashi. First, Rashi (18b) explains that what makes it Tzeroros of Keren is that the dog *threw* the firebrand onto the pile. Why does he not explain that the damage of the Tzeroros is, as we have explained, the damage done to the rest of the field, because of "Esho Mishum Chitzav?"

Second, as we pointed out in the question, Rashi (18a) contradicts himself. Although he first mentions that the dog placed the firebrand on the pile, later he adds that the damage was done in the manner of Tzeroros of Keren, and that Rebbi Elazar and the Chachamim hold like Sumchus, even though he is still explaining the answer of the Gemara at the beginning of the Sugya! Obviously, Rashi is not explaining like Tosfos Rabeinu Peretz.

(b) The MISHNAS KEHUNAH (cited in footnote 174 in the new printing of the Shitah Mekubetzes) asks how could we explain (on 18b) that the Tzeroros is the spreading of the fire to the rest of the pile and field, like Rebbi Yochanan's opinion? The Gemara there is discussing *Rava*, and TOSFOS in Sanhedrin (77a, DH Sof) writes that Rava holds like *Reish Lakish* who says "Isho Mishum *Mamono*" and not like Rebbi Yochanan! According to Rava, therefore, the burning of the rest of the field would *not* be a case of Tzeroros!

Perhaps Rashi was bothered by this question, and that is why Rashi here (18b) explains that the case is one of Tzeroros in that the dog *threw* the firebrand onto the pile. However, Rashi earlier (18a) explains that the dog simply *placed* the firebrand on the pile, and the Tzeroros is that the fire spread to the rest of the field (because "Esho Mishum Chitzav" is considered Tzeroros, like Rebbi Yochanan), because at that point the Gemara was not discussing Rava, and therefore there was nothing wrong with explaining the Gemara according to Rebbi Yochanan. (M. Kornfeld)

(c) Perhaps there is more to the words of Rashi earlier (18a). A careful reading of the words of Rashi shows that there are two separate comments combined into one. Rashi first explains the words of the Gemara, "Ela Kegon d'Shani b'Gacheles," and explains that the dog placed the Gacheles on the pile, and then Rashi begins again with a new comment (with the words "Ela Ba'ayan m'Hacha Lo Tifshot...," with the word "Ela" being the "Divrei ha'Maschil") and he explains the Gemara again, with a different explanation. Perhaps there are, in fact, two versions in the explanation of Rashi which correspond to the two versions in Rashi later (on 18b), as follows:

Rashi (on 18b, DH Amar Lach Rava) asks why the Gemara insists that if the Machlokes between Rebbi Elazar and the Chachamim revolves around the question of Keren in Chatzer ha'Nizak, then they both hold like Sumchus. Perhaps they both hold like the Rabanan, and still one pays Nezek Shalem for damage done by Keren in Chatzer ha'Nizak! (Tosfos and other Rishonim write that according to the Rabanan of Sumchus, one would not pay Nezek Shalem in the Chatzer of the Nizak, even according to Rebbi Tarfon, since Rebbi Tarfon only learns his Halachah from a Kal v'Chomer: if one pays Nezek Shalem for Shen and Regel in Chatzer ha'Nizak even though one is exempt for Shen and Regel in Reshus ha'Rabim, then certainly for Keren, for which one is Chayav in Reshus ha'Rabim, one must pay Nezek Shalem in Chatzer ha'Nizak. According to the Rabanan who argue with Sumchus, one would never pay Nezek Shalem for Shen and Regel which are done through Tzeroros, similar to the Keren which we are discussing which was done through Tzeroros, even in Chatzer ha'Nizak. Therefore, the Gemara had to explain that Rebbi Elazar and the Chachamim hold like Sumchus, so that Rebbi Tarfon could hold that one is Chayav to pay Nezek Shalem for Keren in Chatzer ha'Nizak. Rashi here, however, is consistent with his own view and does not accept this, since later on the Daf (DH d'Dachik Lah; see following Insight) Rashi writes that either one must pay Nezek Shalem for Tzeroros of Shen, or that there is no such thing as Tzeroros of Shen; in either case, one will always be Chayav to pay Nezek Shalem for Shen in Chatzer ha'Nizak, and one will never pay only Chatzi Nezek. Therefore, the Kal v'Chomer is still valid according to the Rabanan who argue with Sumchus -- they can make a Kal v'Chomer from Shen: if one pays Nezek Shalem in the Chatzer ha'Nizak even though one is exempt from Shen in Reshus ha'Rabim, then certainly one should have to pay Nezek Shalem for Keren, and Tzeroros of Keren, in Chatzer ha'Nizak. We cannot say that Tzeroros of Regel should refute the Kal v'Chomer, since one pays Chatzi Nezek for Tzeroros of Regel in the Chatzer ha'Nizak, since we cannot ask a Pircha from a Halachah that is known from a Halachah l'Moshe mi'Sinai.)

Rashi answers that it was necessary to explain that Rebbi Elazar and the Chachamim hold like Sumchus because if we say that they hold like the Rabanan, then why do the Chachamim say that one must pay Chatzi Nezek for Tzeroros of Keren? There is a Gemara later in which Rav Ashi asks that perhaps one must pay only a *quarter* of the Nezek for Tzeroros of Keren. Since we do not want to get involved with Rav Ashi's question, we therefore say that they hold like Sumchus, who certainly holds that one pays Chatzi Nezek for Tzeroros of Keren, just like for normal Keren.

This answer of Rashi, however, only seems appropriate according to the second Lashon of Rashi, in which he explains that the question of whether or not an animal that damages through Tzeroros can become Mu'ad (which was discussed earlier in the Gemara) is a question involving all cases of Tzeroros and not only Tzeroros of Keren. Accordingly, it is possible that Rava -- even if he holds that for Tzeroros of Keren one pays a quarter of the Nezek -- could still ask what is the Halachah in the case of normal Tzeroros of Regel; does the animal become Mu'ad, obligating the owner to pay Nezek Shalem, after it damages through Tzeroros three times? It is possible that for Tzeroros of Keren one pays a quarter of the Nezek the first three times, and then pays Chatzi Nezek, while for Tzeroros of Regel one pays Chatzi Nezek the first three times and then pays Nezek Shalem. The Halachah l'Moshe mi'Sinai states simply that we delay the obligation of normal restitution until after the animal has damaged in this manner (Tzeroros) three times. That is why Rashi can say that Rava, who was in doubt whether Tzeroros can become Mu'ad, might possibly hold like Rav Ashi who says that perhaps one pays a quarter of the Nezek for Tzeroros of Keren.

(It is true that the Gemara later, beginning of 19a, says that if Rava would hold "Yesh Shinuy l'Tzeroros l'Revi'a Nezek," it would be clear to him that Tzeroros could *not* become a Mu'ad. Nevertheless, Rashi on 18b is explaining that even if Rava holds "Yesh Shinuy... l'Revi'a Nezek" it is still possible that he does question whether Tzeroros can become a Mu'ad in the case of Tzeroros of Regel. There is a logical way to explain that approach as well, in contrast to the Gemara's approach on 19a.)

However, according to the first Lashon of Rashi, the question whether Tzeroros can become Mu'ad is specifically referring to Tzeroros of Keren. If the Gemara wants to explain the Machlokes between Rebbi Elazar and the Rabanan in the Beraisa according to Rava -- who questions whether or not one pays Nezek Shalem for Tzeroros of Keren -- then obviously we cannot question whether for Tzeroros of Keren one pays *Revi'a* (a quarter) Nezek! The two questions are mutually exclusive: if we say that for Tzeroros of Keren one pays Revi'a Nezek, then after three times he cannot pay more than Chatzi Nezek. On the other hand, if Rava is asking whether for Tzeroros of Keren one pays Nezek Shalem or Chatzi Nezek, then, obviously, he does not entertain the possibility that for Tzeroros of Keren one pays Revi'a Nezek. Why, then, would the Gemara have to say that Rebbi Elazar and the Chachamim hold like Sumchus, and that the Chachamim hold that for Tzeroros of Regel one pays Nezek Shalem and for Tzeroros of Keren one pays Chatzi Nezek? Even if the Chachamim would hold like the Rabanan who argue with Sumchus and say that for Tzeroros of Regel one pays Chatzi Nezek, for Tzeroros of Keren one would also pay Chatzi Nezek, according to Rava who questions whether one pays Nezek Shalem or Chatzi Nezek for Tzeroros of Keren after it damages three times! Rava clearly would hold that after the first time, one does pay Chatzi Nezek for Tzeroros of Keren; we cannot say that Rava wanted to avoid the question of Rav Ashi, because by definition his question already takes sides with Rav Ashi's question and is assuming that Tzeroros of Keren Tam does pay Chatzi Nezek and not Revi'a Nezek.

Therefore, we must explain the Gemara differently. Why does the Gemara explain that Rebbi Elazar and the Chachamim both hold like Sumchus? (TOSFOS HA'ROSH and TOSFOS RABEINU PERETZ cited by the Shitah Mekubetzes ask a similar question on Rashi's explanation of why the Gemara has to say that they hold like Sumchus.)

The answer to Rashi might be what TALMIDEI RABEINU PERETZ cite in the name of "Yesh Metartzim." They explain that the Gemara does not mean that Rebbi Elazar and the Chachamim hold specifically like Sumchus. Rather, it means that they *even* could hold like Sumchus. The Gemara is saying that it makes no difference whether they hold like Sumchus or the Rabanan, since they are not discussing Tzeroros of Keren! They are discussing a case of *normal* Keren, and the case is where the dog placed the firebrand on the pile, and they are only discussing the "Makom ha'Gacheles" according to Rebbi Yochanan, or the entire pile and field according to Reish Lakish. That is what the Gemara means, and it does not mean that they are discussing Tzeroros of Keren.

If this is correct, then it is clear that according to the first Lashon of Rashi, the Gemara does not have to be talking about Tzeroros of Keren, but rather just about Keren. That is why Rashi (on 18a) explains that the Machlokes between Rebbi Elazar and the Chachamim according to this answer -- which says that it depends on the Halachah of Keren in Chatzer ha'Nizak -- involves *normal* Keren (where the dog placed the firebrand there with its mouth) and not Tzeroros. When Rashi continues and says that the answer is discussing *Tzeroros* of Keren, he is following the second Lashon that he writes later (on 18b). According to that Lashon, as we have explained, the Gemara specifically wants to say that the Machlokes is according to Sumchus and is not according to the Rabanan.

(The SHITAH MEKUBETZES cites the GILYON who even has this as his Girsa in the words of Rashi on 18a, which reads that the Machlokes between Rebbi Elazar and the Chachamim is *not* according to Sumchus specifically, but that it is according to the Rabanan who argue with Sumchus, or, as we have explained, according to the Rabanan of Sumchus and *even* according to Sumchus.)

This also explains what Rashi (18b, DH d'Dachik) means when he says that when Rava answers that Rebbi Elazar and the Chachamim both hold like Sumchus, "he is just pushing off the answer." Rashi is saying that the Gemara does not mean that Rebbi Elazar *must* hold like Sumchus, but rather that Rebbi Elazar could *even* hold like Sumchus. (This answers the question of the RASHASH here.)

When Rashi (18b) says that the dog *threw* the firebrand, that is the same version of Rashi that explains that the Gemara is saying that Rebbi Elazar and the Chachamim *only* hold like Sumchus. That comment of Rashi is according to the second Lashon, and that is why he writes that the dog *threw* the firebrand and that it is a case of Shinuy (an unusual act) of Tzeroros (i.e. Tzeroros of Keren), and not just regular Keren. (M. Kornfeld)

(A general point in understanding how to relate to the first Lashon and the second Lashon of Rashi, and the many contradictions in the Sugya, is as follows: It seems that Rashi wrote a commentary on the Sugya, and later changed his mind. When he changed his mind, he added the new way that he learned. The new way that he learned is the *first* Lashon, for that seems to be the commentary of Rashi after he changed his mind. Even though Rashi writes in the *second Lashon* "so I have heard and that is the Ikar," that does not mean that this is how Rashi himself holds. Rather, either he wrote that before he changed his mind, or he means that this is how most people learn the Sugya. This is evident from the fact that Rashi himself immediately asks a question on the second Lashon, showing that the first Lashon is Rashi's preferred one.

We find such occasions of different, conflicting Leshonos in Rashi in other places (see Rashi 16a, DH Lo Kasha). In general, the rule is that the first Lashon is the one that Rashi prefers. He puts it first in order for us to learn the Gemara according to that explanation. The second Lashon is included out of respect for his teachers, or because that is how he wrote the commentary on the Gemara originally when he relied on the explanation of others, until he learned the Sugya again and decided to change his commentary. That is why, in our Sugya, Rashi inserts this first Lashon before the second Lashon -- it is his conclusive explanation of the Sugya (that it is discussing Tzeroros of Keren when it asks whether Tzeroros can become Mu'ad). When Rashi added his new explanation, he also reviewed the Sugya and, in many places, in the beginning of a comment that discusses a point that is related to something that changed according to his new explanation, Rashi inserted a few words to explain the Gemara according to his new explanation, and this is, once again, always at the beginning of his comment (for example, in the comment that we have explained on 18a, DH Ela Kegon). However, the old explanation still remains in the text of Rashi, since he did not take out the second Lashon. That is why we find, in many comments of Rashi, that Rashi seems to contradict himself, switching back and forth between the first Lashon and the second Lashon, such that the MAHARSHAL finds it necessary to erase many words at certain points or to point out the variances (for example, in Rashi 18b, DH l'Keren, and DH O Dilma, and at the end of 19a; see Insights there). In general, as we mentioned above, the new explanation that Rashi adds is usually in the beginning of his comments.

However, Rashi did not re-write his comments in every single place that must be changed (slightly or considerably) based on his new, conclusive explanation. Therefore, we find in a number of places that Rashi's commentary still clings to the second Lashon, meaning his original explanation, and he does not correct it. He just corrects his comments at the primary places which affect the Sugya. An example of this is on 6b, in DH Shor Re'ehu, where we find that Rashi offers two explanations, and he explains the Sugya on 7a according to his second explanation, as we pointed out in the Insights there. Nevertheless, his conclusive explanation does seem to be his first explanation (that we derive the Petur of Hekdesh from Keren to all of the other Mazikin), since we see that Rashi writes this explanation again in the Mishnah on 9b (DH Nechasim). That is why Rashi inserted it in the beginning of his comments, as the first explanation in the Sugya (and Rashi in Gitin writes *only* that explanation, as we mentioned in the Insights to 7a). Nevertheless, Rashi did not change his entire commentary on the Sugya on 7a, since he just recorded the new, conclusive explanation in the place where it was most central and relevant to the Sugya.)

OPINIONS: The Gemara discusses the Halachah of Tzeroros of Regel: the owner of an animal that does damage through Tzeroros of Regel pays Chatzi Nezek because of a Gezeiras ha'Kasuv. What, though, is the Halachah of Tzeroros of *Shen*? The Gemara discusses only Tzeroros of Regel and Tzeroros of Keren (in which the Tzeroros were kicked up in an unusual manner, as Rashi mentions at the beginning of 18b, and as the Gemara says at the end of 19a, according to the first Lashon of Rashi). However, Tzeroros of Shen is not discussed. Is there a Halachah of Tzeroros for Shen?

On one hand, the Gemara (17b) mentions as an example of Tzeroros a "Chazir sh'Hayah Nover b'Ashpah" -- a swine that was shoving around with its snout in the garbage in order to find food, and it kicked out Tzeroros. The Gemara says that the owner, in such a case, must pay Chatzi Nezek. This seems to imply that Tzeroros of Shen is the same as Tzeroros of Regel.

On the other hand, when the Gemara earlier (3b) has a lengthy discussion in which it searches for cases of Toldos which are not similar to their Avos, the only case that it finds is that of a Toldah of Regel -- that case being Tzeroros of Regel, for Tzeroros is a Toldah which is not similar to the Av. The Gemara does not mention Tzeroros of Shen, which should also be a case of a Toldah which is not similar to its Av. This implies that there is no such Halachah of Tzeroros of Shen.

(a) RASHI (DH d'Dachik Lah Alma) points out that the Gemara here gives as an example of Tzeroros the case of "Hetilah Gelalim l'Isa" (the animal released its waste upon someone's dough), whereas the Gemara earlier (3a) taught that "Tinfah Peros l'Hana'asah" (the animal derived pleasure out of soiling someone's fruit) is a Toldah of Shen and pays Nezek Shalem. The case of "Tinfah Peros l'Hana'asah" seems to be a case in which the animal eliminated on the fruit and thereby ruined it; why, then, should that be different from the case of our Gemara, which is a case of Tzeroros in which the owner pays only Chatzi Nezek?

In his first answer, Rashi explains that, indeed, if the animal would have derived pleasure from leaving its waste upon the dough, its owner would have had to pay Nezek Shalem, like a normal Toldah of Shen. However, in this case, the animal derived no pleasure from its act (the animal was ill and the waste came out by itself), and therefore the damage is not a Toldah of Shen. Rather, it is a Toldah of Regel, and that is why the owner must pay only Chatzi Nezek.

It is clear from Rashi that any Toldah of Shen pays Nezek Shalem even if it damages via "Kocho," in a way similar to Tzeroros, rather than through direct contact between its body and the item that it breaks. It is only with regard to Regel that we find that one must pay Chatzi Nezek for Tzeroros when the animal damages through "Kocho." Why, though, should that be so? The Gemara (3a) taught that Shen and Regel are exactly the same with regard to obligating one to pay for damages! How, then, could their Halachos be different with regard to Tzeroros? The Halachah of Tzeroros should apply to both of them!

The answer is that the Halachah that Tzeroros pays Chatzi Nezek is a Halachah l'Moshe mi'Sinai. The Halachah l'Moshe mi'Sinai was given only with regard to Regel, and not with regard to Shen. Therefore, for damage caused by Shen, one pays Nezek Shalem, since there is no Halachah l'Moshe mi'Sinai to teach that one pays any other amount. In addition, the Halachah of Shen cannot be derived from Regel through a Binyan Av, because we do not apply a Binyan Av, or Kal v'Chomer, to a Halachah taught by a Halachah l'Moshe mi'Sinai (even if there would be no Pircha). Why, then, does the Gemara discuss whether there is Tzeroros of *Keren*? The Gemara discusses whether an animal that causes damage, three times, through Tzeroros of Keren becomes a Mu'ad or not; according to Rashi's first Lashon, the Gemara is asking whether the Halachah l'Moshe mi'Sinai -- that says that one pays Chatzi Nezek for damage of Tzeroros -- apply to Keren? From the Gemara later (19a) it seems that the question is whether the Halachah l'Moshe mi'Sinai was also given with regard to Keren or only with regard to Regel. If it was given with regard to Keren as well, then even after three times one will pay only Chatzi Nezek. (See Insights to 19a.) If, however, the Halachah l'Moshe mi'Sinai does not apply to Shen, then why should it apply to Keren?

The answer seems to be that, according to our understanding of Rashi here, indeed the question of the Gemara is not just with regard to Keren, but with regard to Shen also -- the Gemara is asking whether there is a Halachah of Tzeroros for either Keren or for Shen. The Gemara phrases this question with regard to Keren and asks whether one must pay Nezek Shalem after damage is done by Tzeroros of Keren three times. The same question, though, applies to Shen -- does one pay Chatzi Nezek for Shen, like one pays for Regel, when it damages through Tzeroros, or not? Since Rashi at this point is explaining according to the Gemara's proposition that perhaps Tzeroros of Keren is like a case of a normal Keren and it can become Mu'ad after three times, he wants to explain that Tzeroros of Shen is also like a case of a normal Shen, just Tzeroros of Keren is like a case of a normal Keren. However, according to the other view that Tzeroros of Keren cannot become Mu'ad and the Halachah of Tzeroros applies to Keren, it will apply to Shen as well, and the owner will pay Chatzi Nezek.

The Gemara earlier (3b) that says that the only case of Tzeroros that we know of is Tzeroros of Regel is also avoiding the question of whether Tzeroros can become Mu'ad, meaning whether Tzeroros applies to things like Shen and Keren, and not just to Regel, and that is why it mentions only Toldah of Regel.

According to this explanation of Rashi, how are we to understand the Gemara (17b) that says that a "Chazir sh'Hayah Nover b'Ashpah" is considered Tzeroros? It should be a Toldah of Shen, since the animal does damage by making Tzeroros through the process of eating, and therefore the owner should have to pay Nezek Shalem! The answer is that Rashi will have to explain that in that case, too, when the animal was shoving around in the garbage for food, it was not deriving pleasure from its act, and therefore the damage it caused is a Toldah of Regel.

(b) Rashi continues and cites another way to differentiate between the Sugya earlier (3a) discussing "Tinfah Peros" and our Sugya, which says that "Hetilah Gelalim" is Tzeroros, and he writes that this is the correct explanation. Rashi writes that "Hatalas Gelalim" is always pleasurable for the animal ("l'Hana'asah"). The reason why the Gemara here does not consider "Hatalas Gelalim" to be a Toldah of Shen is because one of the defining factors of Shen is that the animal has physical contact with the object that it damages. It cannot be considered Shen when the animal damaged the item merely by pushing something else that then pushed the object and damaged it (which is the case of "Hatalas Gelalim"). Therefore, any time the animal damages through its "Ko'ach" and not through direct contact with the item, it will always be a Toldah of Regel and, by definition, cannot be a Toldah of Shen, because part of the definition of Shen is that the animal had pleasure from the object that it damaged through direct contact. This seems to be the way Rashi explains earlier (3a, DH Nis'chachah, and 17b, DH Tzeroros Ki Orchaihu). Why, then, does the Gemara question whether Tzeroros of Keren has the Halachah of Tzeroros or not? Keren should also be the same as Shen; it should only be considered Keren when the animal damages through direct contact and not through Tzeroros! Whenever it damages through Tzeroros, it should be considered a Toldah of Regel!

The answer might be that Shen is a damage that is done through the Hana'ah that the animal derives. That Hana'ah is not evident in the object that the animal pushes when it damages through Tzeroros. When the animal leaves its waste on an item, the animal's Hana'ah is only at the moment that the waste exits its body. Afterwards, when the waste damages someone's item, it has nothing to do with the Hana'ah of the animal. Therefore, it is only Shen when the animal damages through direct contact with the object that it damages, such that the object that it damages is related to the Hana'ah that the animal derives at the time that it damages.

In contrast, the defining factor of Keren is that the animal acted in an unusual manner. Thus, even when the animal pushes an object in an unusual way, what the object then does is also related to something unusual. The object normally would not be flying through the air in this manner, since the animal normally does not kick it. Therefore, the object that is damaged through Tzeroros ("Kocho") of Keren might also be considered a Toldah of Keren, since the change in the normal manner is evident in the Tzeror (the rock that was kicked by the animal) itself. That is why the Gemara questions whether there is a Halachah of Tzeroros of Keren or that perhaps all cases of Tzeroros are a Toldah of Regel, since it is not damaging through direct contact.

According to this explanation of Rashi, it is also clear why the Gemara (3b) does not suggest that the case of a Toldah that is not like its Av is a case of Tzeroros of Shen, since there is no such thing as Tzeroros of Shen. The Gemara there does not mention Tzeroros of Keren because whether or not there is such a thing as Tzeroros of Keren is a question in the Gemara later.

Also, according to this explanation, it is also clear why a "Chazir sh'Hayah Nover b'Ashpah" (17b) is considered a Toldah of Regel and not a Toldah of Shen. Damaged caused through "Kocho" and not through direct contact cannot be considered a Toldah of Shen, as Rashi himself writes.

TOSFOS SHANTZ and TOSFOS RABEINU PERETZ (3a) also seem to hold that there is no Tzeroros of Shen when an animal leaves its waste on food, but for a different reason. They explain that in order for something to be a Toldah of Shen, the animal must receive Hana'ah from the damage that was done to the object. In the case of "Hatalas Gelalim," it makes absolutely no difference to the animal whether its waste falls upon the food or upon the ground; where it falls has nothing to do with the Hana'ah that the animal derives. The same would be true in most other cases where an animal causes damage through an indirect act ("Kocho") which gives it Hana'ah; the Hana'ah that it gets is not from the object which eventually becomes damaged from something that the animal pushed. Rather, the Hana'ah that it gets is from pushing the first item. Therefore, they explain, "Hatalas Gelalim" is not considered a Toldah of Shen.

In fact, these Rishonim also do not explain that the case of "Tinfah Peros" (3a), which is a Toldah of Shen, is where the animal rolled on food, as Rashi explains. Perhaps they explain it differently because it makes no difference to the animal whether it rolls on food or on the ground -- it simply likes to roll on its back. Therefore, that case should also not be considered a Toldah of Shen. Rather, they explain that the case of "Tinfah Peros l'Hana'asah" means that the animal sat down on the fruit either because the fruit was cold and the animal was able to cool itself off by sitting on the fruit, or because the fruit was soft and the animal wanted to rest on something soft. That is why the case of "Tinfah Peros" is a Toldah of Shen.

Hence, according to their explanation as well, it is clear why the Gemara (3b) does not mention Tzeroros of Shen as a case of a Toldah which is not similar to its Av. Similarly, the case (17b) of a "Chazir sh'Hayah Nover b'Ashpah" is also a Toldah of Regel according to their explanation.

(c) TOSFOS (17b, DH Nover, and 18b, DH Bein), however, does mention the concept of Tzeroros of Shen. He clearly holds that Tzeroros can apply equally to any of the Mazikin -- Keren, Shen, and Regel, and a "Chazir sh'Hayah Nover b'Ashpah" is a Toldah (Tzeroros) of Shen.

How does Tosfos understand the case of "Tinfah Peros" (3a), in which the owner pays Nezek Shalem? Why is he not obligated to pay only Chatzi Nezek, like Tzeroros, when the animal damages through "Hatalas Gelalim?" Tosfos will have to explain that the case there is when the animal damages in a way that is not Tzeroros, either because the animal rolled on the fruit (like Rashi), or that it sat on the fruit (like the Rash mi'Shantz), or, like the RI MI'GASH explains (cited by the Shitah Mekubetzes on 19a), that the animal was ill and its waste was a continuous flow that came directly from the animal to the fruit that it damaged, and, therefore, it is not similar to a pebble that shoots out from the animals foot, since the waste is still touching the animal at that the time that it damages the object.

Why does the Gemara (3b) mention only Tzeroros of Regel as a Toldah that is dissimilar to its Av? What about Tzeroros of Shen and Keren? The SHITAH MEKUBETZES and the TALMID HA'RASHBA V'HA'ROSH (2a) both cite RABEINU YONAH who explains that the Gemara there brings the example that is most common. Tzeroros of Regel is the most common case of Tzeroros, and that is why the Gemara mentions it. It is true, though, that there are also cases of Tzeroros of Shen and of Keren which are cases of a Toldah that is not similar to its Av. In fact, the Shitah Mekubetzes points out that this is why Rav Papa did not simply say that "there is *one* case of a Toldah that is not similar to its Av," but rather he said that "there are *some* Toldos that are not similar to their Avos;" he was alluding to the Toldos of Keren, Shen, and Regel which are not like their Avos, since Tzeroros applies to all three types of Nezikin.

According to Tosfos, why does the Gemara (18b and 19a) discuss whether the Halachah of Tzeroros applies to Keren? It should be obvious that it applies to Keren, just like it applies to Shen! The answer is that Tosfos explains those Gemaras differently, in accordance with his explanation here. Tosfos (DH b'Mu'ad) explains like the second Lashon of Rashi (on 18b), and he learns that the question of whether or not Tzeroros of Keren can become Mu'ad is not whether or not Tzeroros applies to Keren altogether, but rather it is a question concerning Tzeroros of Regel. Similarly, the Gemara (on 19a) is discussing Tzeroros of Regel when it questions whether one is exempt in Reshus ha'Rabim or not, and it is not discussing specifically Tzeroros of Keren.