Jewish audio on Chabad.org. Today's שיעור will be מסכת בבא קמא דף ה'. We will start on דף ד' עמוד ב', eleven lines from the bottom of the עמוד. The גמרא starts: תני רב חייא, רב חייא learned, עשרים וארבעה אבות נזיקין, there are twenty-four אבות נזיקין. In the משנה we learned that there are ארבעה אבות נזיקין. There are four אבות נזיקין, which means four categories of damages that a person is responsible to pay for. And רב אושעיא before said that really there are thirteen אבות נזיקין. There are thirteen categories of payment that it's possible for a person to be חייב to pay. And here רב חייא says that really there are twenty-four אבות נזיקין, twenty-four kinds of payments that a person might be responsible to pay for. And he starts off: תשלומי כפל, if you have to pay double. This refers to a גנב, a person who stole, not a גזלן. A גזלן is a person who makes a hold-up, who steals openly. A גנב is somebody who steals while nobody sees. And the דין is that when a person is a גנב and he is caught, so he has to pay כפל. Not only must he pay back the principal that he stole, but he also must pay a fine, and the fine is that he must pay כפל, he must pay double of what he stole. So רב חייא says that this is called one of the אבות נזיקין, that if a person has to pay כפל, it is one of those אבות נזיקין.

Also, ותשלומי ארבעה וחמשה, if he has to pay four or five times as much, because there is a possibility for a person not to pay only כפל, but also to pay ארבעה וחמשה. And that is the case of טביחה ומכירה. If a person stole a שור or a שה, an ox or a sheep, and then he sold it, or he slaughtered it, he שחט it, so the דין is that this person has to pay four times as much for the שה, for the sheep, and five times as much for the שור, for the ox. So this is another one of those אבות נזיקין. וגנב, or a גנב, and this refers to a person who stole, but not the fine that he has to pay, but the principal he has to pay. So the first one he mentioned, which is תשלומי כפל, that referred to the fine, the קנס that he had to pay. Now he says that he also counts the גנב itself, the קרן that he has to pay, the principal that he has to pay, as one of the אבות נזיקין. וגזלן, or if a person is a גזלן, he is the one that steals openly, so he doesn't ever pay a fine, he doesn't pay קנס, כפל, but he does have to pay the קרן. So this is another kind of payment a person would have to pay.

ועדים זוממים, or עדים זוממים, עדים זוממים is the דין that when two people come to testify in בית דין that a certain person did something, and then other two witnesses come and say that 'how can you testify that you saw this person do whatever you said, when at that time you say you saw him do it, עמנו הייתם, you were with us?' So then the דין is ועשיתם לו כאשר זמם לעשות לאחיו, which means that you must do to the עדים who wanted to be מחייב the person whatever they wanted to, so then you have to make them do that. For instance, if they wanted to make a person pay money, so after they become עדים זוממים, so now they have to pay that amount of money they wanted to make that person pay. Or if they wanted to make a certain person be מחייב מיתה, to get death penalty, so the דין is that you have to kill the עדים זוממים. And the same applies to everything that the עדים זוממים wanted to make the other person do. So this is another one of the אבות נזיקין, עדים זוממים, that if two עדים testify that a certain person is חייב to pay a certain amount of money, and later they become עדים זוממים, so now they are obligated to pay that money. So this is another one of the אבות נזיקין.

והאונס, if somebody forces a woman to do an עבירה with her, so the פסוק says that you must pay חמשים כסף, fifty כסף as a fine, so that fine is also one of the אבות נזיקין. והמפתה, if you convince a woman to do an עבירה, to have relations with her, so the דין is also that you must pay the חמשים כסף, the fine that the תורה prescribes. So this is another one of the אבות נזיקין. ומוציא שם רע, if someone gives out a bad name on his wife, and this is a specific דין: if somebody marries a woman, he gives her קידושין, and later on he gives her חופה, he marries her, and after he marries her he comes to בית דין and he says that 'I did not find her to be a בתולה.' And he claims that she was מזנה, she did the עבירה between the קידושין and the נישואין, after she already received the קידושין from him, so she became an אשת איש, she is already a married woman... So if she was מזנה at that time, she was מזנה while she was married to him, and he brings witnesses that say that they saw her מזנה after the קידושין. So the דין is, if later on they find out that these witnesses were false, and this husband only gave out a bad name against her, and the way to find out is that the father of the woman would bring עדים that would be מזים the original עדים of the husband. So after they are מזים the original עדים of the husband, so we know that the עדים of the husband were false, so then the דין is that the husband must pay מאה כסף. He must pay a hundred כסף for the shame and for the bad name he gave out against his wife. So this is another possibility, another category of a נזק that a person caused to somebody that he is obligated to pay.

והמטמא, or somebody makes טמא someone else's object, so automatically that object is not worth as much as it was before. So then he is obligated to pay for that. והמדמע, or somebody who mixes תרומה into someone else's חולין, and this is also considered a damage, because when you mix תרומה into someone's חולין, so that חולין must be eaten as תרומה. And תרומה is cheaper than חולין, because תרומה has less customers than חולין. חולין could be eaten by everybody, תרומה could only be eaten by a כהן. So therefore, since there are less customers for the תרומה, the תרומה is sold at a cheaper price. So if you mix תרומה into someone's חולין, so now that חולין must be sold for the price of תרומה. So this is a loss that you cause to that person, so you must pay for that loss. So this is another one of the אבות נזיקין. והמנסך, when you pour someone's wine for עבודה זרה, the דין is that wine that was poured for עבודה זרה is אסור בהנאה, you cannot have any use from it. So this is a loss that you cause to that person. The truth is that in the גמרא of גיטין, there is a מחלוקת what this המנסך could mean. It could mean or that you actually take someone's wine and you pour it to עבודה זרה, or it could mean that you mix someone else's כשר wine with wine that was not כשר, meaning wine that was poured for עבודה זרה, so you take a little bit of that wine and you mix it with someone else's wine. But רש״י here says that he learns the פשט in the גמרא here that it means that you actually poured someone else's wine for עבודה זרה, because he says if it would mean that you poured some of the non-כשר wine, some of the יין נסך into someone else's wine, then there is really no loss, רש״י says. Because the דין is that you're allowed to sell that wine, the only thing is you're not allowed to charge him for the יין נסך that's mixed in. For instance, if you have ten gallons of wine and someone mixed in a gallon of יין נסך, so now you have eleven gallons. You're allowed to sell all the eleven gallons, but you're only allowed to charge for ten. So then you don't have any benefit, any pleasure, any הנאה from that extra gallon which is יין נסך. So if the פשט would be that you mixed יין נסך into someone else's wine, then רש״י says there is no loss at all. So therefore רש״י here learns that the פשט in המנסך is that you actually took someone's כשר wine and you poured it for עבודה זרה, so now you caused that person the loss of his wine. So this is another one of the אבות נזיקין. So

here we have already eleven אבות נזיקין, והני תלתסר, and the other thirteen that רב אושעיא mentioned, so together we have הא עשרין וארבע, so we have twenty-four. Then the גמרא asks, ורב אושעיא, מאי טעמא לא תני הני? Why didn't רב אושעיא also mention these? Why did he only say his thirteen? Why didn't he want to consider the other eleven of רב חייא also as אבות נזיקין? And the גמרא answers, בממונא קמיירי, בקנסא לא קמיירי. רב אושעיא, when he mentions אבות נזיקין, he is only talking about those אבות which are ממון, that the money you have to pay for it is not a fine, it is actually the money for the damage that you caused. But if it is considered a fine that you have to pay, not that you really caused a damage, but it is a fine that the תורה is מחייב you to pay, so those he does not consider as אבות נזיקין. But then the גמרא asks, but גנב וגזלן דממונא הוא ליתני! One of those אבות נזיקין that רב חייא mentioned that רב אושעיא didn't is גנב, and the other one is גזלן, and that is ממון, not קנס. Why doesn't רב אושעיא mention that? Because the גנב that we're talking about here is not the כפל, the double, the fine that the גנב has to pay, we're talking about the principal he has to pay, and that is ממון. You caused the loss to your friend, you stole his money, so you have to make that up by paying him back the amount of money that you stole. And the same with a גזלן, a גזלן doesn't pay כפל at all. So the גמרא's שאלה is, why doesn't רב אושעיא mention גנב וגזלן, since we said the reason רב אושעיא does doesn't mention the ones of רב חייא is because he doesn't talk about קנס, but he does talk about ממון. This happens to be ממון, and still he doesn't mention it. Why? The גמרא answers, הא קתני לה, really, he did learn it,

because he mentioned שומר חנם והשואל. Since amongst the אבות נזיקין of רב אושעיא are the four שומרים, שומר חנם, for instance, and שומר חנם is possible to pay as a גנב. Because as רש"י explains, there is a concept which is called טוען טענת גנב, that if someone is a שומר, someone watches something for somebody else, and then the owner comes and asks for it, and he tells him it got stolen. And normally, the דין would be by a שומר חנם, that if it got stolen, and you swear that it was stolen, the שומר חנם is פטור from paying. If, later on, you find out that, really, he kept it for himself, so then, under many circumstances, the דין is that the one that kept it, the שומר himself, he becomes like the גנב, and he has to pay the כפל to the owner. So, since רב אושעיא mentions שומר חנם already, and by שומר חנם, there is a possibility of the שומר חנם himself becoming a גנב in the case of טוען טענת גנב, in the case where he claims it was stolen and later we find out that he stole it, so in the case of שומר חנם is already included the דין of גנב, and therefore, רב אושעיא doesn't have to mention it. And the truth is, as רש"י says, when the גמרא mentions here that רב אושעיא already mentioned שומר חנם והשואל, this word "השואל" is extra, because a שואל is the one that borrows, and we do not find by a שואל the דין of a גנב. And therefore, when the גמרא wants to explain here why רב אושעיא doesn't mention גנב, because it's included in one of the other אבות נזיקין, so all the גמרא meant was, it's included in שומר חנם. And even though the גמרא mentions שואל too, this is just אגב, because we mention שומר חנם, the גמרא went and mentioned שואל, which goes together with שומר חנם. But, really, the גמרא only meant שומר חנם, that in שומר חנם we have the possibility of him becoming a גנב, and therefore, the אב of גנב is included in the דין of שומר חנם. And the גמרא asks, ורבי חייא נמי, so if so, רב חייא, too, הא תני לה שומר חנם והשואל. Didn't רב חייא mention שומר חנם והשואל? Since amongst the 24 of רב חייא are the 13 of רב אושעיא, and amongst the 13 of רב אושעיא is שומר חנם, so רב חייא, too, mentioned שומר חנם already. So, why does רב חייא have to mention separately גנב and גזלן? Aren't they included in the שומר חנם that רב חייא mentioned? And the גמרא answers, תני ממונא דאתי לידיה בהיתרא, וקתני ממונא דאתי לידיה באיסורא. רב חייא would want to divide it into two categories. He wants to separately learn the case of a גנב concerning the case where the money came to him בהיתר, and he wants to learn a separate case, a separate category, a separate אב in the case of a גנב when the money came to him באיסור. The case of שומר חנם, even though he could be turned into a גנב, but still it's a case where he got the money בהיתר. The money came to him because he became a שומר. So, he received the money בהיתר. It's later on, that when he was supposed to return it, he said it was stolen, and then he turned into a גנב. While a regular גנב, the money came to him לכתחילה באיסור, he stole the money. So, רב חייא wants to learn two categories within גנב itself, the category of גנב the way it's part of שומר חנם, which is the case of אתי לידיה בהיתרא, when it came to him בהיתר, and the case of גנב, a regular גנב, when it came לידיה באיסורא. Then the

גמרא asks, עדים זוממין דממונא הוא, לישני? One of the אבות נזיקין that רב חייא mentions is עדים זוממין. Why doesn't רב אושעיא mention that, too? The reason we said before that רב אושעיא does not mention those of רב חייא is because he only speaks about ממון, not about קנס, עדים זוממין is ממון, as the גמרא feels now, why doesn't רב אושעיא mention that? And the reason the גמרא feels that עדים זוממין is ממון, not קנס, as רש"י explains, because קנס is one of the two, or when you pay more than the amount of money that you damaged, or when the תורה gives you a fixed amount that you have to pay. For instance, when a גנב has to pay כפל, you have to pay double, that is called קנס, because it is more than he damaged. Or when you have to pay ארבעה וחמשה, you have to pay four or five times as much, that is called קנס. Or אונס ומפתה, מוציא שם רע, that they have to pay a fixed amount that the תורה says, that is called קנס. But anything else is not called קנס, but ממון. Therefore, the גמרא feels that עדים זוממין is not קנס, but ממון, since עדים זוממין does not pay more than the damage. Because עדים זוממין, as we said before, means that they wanted to cause the damage to the person, when they testified that that person owes money, for instance, they want To make the person pay that amount, so therefore, now that they became זוממין, they have to pay that. So they do not pay more than the amount of money they damaged, nor do they pay a fixed amount, so therefore the גמרא feels that it's ממון. And that's the גמרא's קשיא: since עדים זוממין is ממון, why doesn't רבי אושעיא mention עדים זוממין, too? And the גמרא answers, סבר לה כרבי עקיבא. רבי אושעיא holds like רבי עקיבא, דאמר that he says, אין משלמין על פי עצמן, that עדים זוממין do not pay on their own. The rule is that by קנס, if the person who did the damage that normally you would have to pay קנס for, if he admits on his own, then he is פטור from קנס. As the לשון is מודה בקנס פטור. For instance, if someone stole, if he is brought to בית דין through witnesses, then he is made to pay כפל, then he pays the קנס, too. If he himself would come to בית דין and admit that he stole, then he would only have to pay the principal, but the קנס, the extra money which is the fine, he would not have to pay. And the same applies to every קנס. So רבי עקיבא says that if עדים זוממין would admit themselves in בית דין, they would be פטור from paying. That shows that רבי עקיבא holds that עדים זוממין is קנס. And that's what the גמרא says, that רבי אושעיא holds like רבי עקיבא that עדים זוממין is קנס, and therefore he does not mention it. But one might ask, how is it possible for עדים זוממין to be מודה themselves? עדים זוממין means that they testified in בית דין, and then other two witnesses came and they said that, "How could you testify what you said when עמנו הייתם, you were with us at the time you claim you saw that person lend the money or whatever it was?" So how is it possible that עדים זוממין should be מודה themselves? And רש״י explained that the case was that after they became עדים זוממין, in other words, after the second set of עדים were מזימם them, before the person that they have to pay the money to had a chance to call them to בית דין, to ask them to pay the money that they now owe to him, they went away to a different בית דין and they said, "We were just מוזם in the other בית דין, and we were made to pay this certain amount of money." So the דין in that case would be, according to רבי עקיבא, that since they admitted themselves, that they would be פטור from paying because he holds it's קנס, and מודה בקנס פטור. And this is what the גמרא says, that רבי אושעיא also holds that it's קנס, and therefore he does not not mention it amongst his אבות נזיקין. But then the

גמרא asks, אי סבר לה כרבי עקיבא, if רבי אושעיא holds like רבי עקיבא, ליתני תרי גווני שור, why also doesn't he mention two categories of שור? One of the אבות נזיקין that רבי אושעיא mentions is שור, he also mentions the four of the משנה, and one of them is שור. But if he holds like רבי עקיבא, why doesn't he divide that into two, two categories of שור? ליתני שור דהזיק שור, וליתני שור דהזיק אדם. Let him learn the case of a שור that damaged another ox, and the case of an ox that damaged a person. Because according to רבי עקיבא, there are two different דינים. And if he holds like רבי עקיבא concerning the case of עדים זוממין, so then probably he holds like רבי עקיבא in other cases, too. So we would assume that he holds like רבי עקיבא that there is a difference between a שור that is מזיק a שור and a שור that is מזיק a person. So according to that, why doesn't רבי אושעיא also divide that into two? What is the difference between a שור that was מזיק a שור or a שור that was מזיק a person? דתנן, because we learned in the משנה, רבי עקיבא אומר, רבי עקיבא says, אף תם שחבל באדם ישלם במותר נזק שלם. That if a שור תם, which means a שור that did not do it three times yet, and he damaged a person, so he has to pay the difference in נזק שלם, in complete נזק. Really the case is when a שור was מזיק a person, and at the same time, the person was מזיק the שור. So then the person is responsible for the damage that he caused to the שור, he has to pay that to the owner of the שור, while the owner of the שור has to pay for the damage that the שור did to the person. Now, if the damage the שור did to the person was more than the damage the person did to the שור, so that difference has to be paid by the owner of the שור. And the משנה says that רבי עקיבא said that he has to pay the difference of נזק שלם, that even though he is a תם, and normally the דין is that when a תם causes damage, you only pay חצי נזק, half of the נזק, in the case where the תם caused damage to a person, you have to pay נזק שלם. And therefore, in a case like this, where the שור caused damage to the אדם and the אדם to the שור, we have to evaluate the damage of the אדם to the שור and the שור to the אדם, but we have to evaluate it based on נזק שלם. In other words, the תם pays נזק שלם. So here we see that there is a difference between A שור that is מזיק a person and a שור that is מזיק a שור. So the question is, why doesn't רבי אושעיא, who holds like רבי עקיבא, why doesn't he also divide the נזק of שור into two? And the גמרא answers, חתבריה רבי עקיבא לגזיזיה, רבי עקיבא already broke his own fist. In other words, according to רבי עקיבא himself, he himself says something which tells us that really they are not two categories. דתניא, because we learn in a ברייתא, רבי עקיבא אומר, רבי עקיבא says, יכול, I would think, תם שחבל באדם ישלם מן העלייה, that if a תם causes damage to a person, you pay מן העלייה, because as we know that the difference between a תם and a מועד is first of all that a תם only pays חצי נזק and a מועד pays נזק שלם. Another difference is that a תם pays מגופו and a מועד pays מן העלייה, which means that a תם only pays based on the amount of money he is worth. In other words, if the amount of money that his owner owns, owes for the damage is more than the whole מזיק, the whole שור המזיק is worth, you do not pay. While if it is a מועד, then even if it's worth more than the whole שור, the owner still would have to pay. So רבי עקיבא says, I would think that a תם that caused damage to a person, you have to pay מן העלייה, even if it's more than the worth of the שור, you

still have to pay, תלמוד לומר, the תורה says, יעשה לו, מגופו משלם ואינו משלם מן העלייה. You should do to him, that means that you pay מגופו, you only pay based on how much he is worth, but you do not pay מן העלייה. So here we see, and תוספות explains that even though if a תם causes damage to an אדם, he has to pay נזק שלם, while if he causes damage to a שור you pay חצי נזק, nevertheless we cannot consider them as two separate categories, because even a תם that damages an אדם still only pays מגופו. And as רש״י explains, it comes out that sometimes he wouldn't pay more than חצי נזק. If the שור himself is not worth more, חצי נזק that is owed, then you do not pay more than חצי נזק. And therefore, even according to רבי עקיבא, we cannot consider שור דאזיק אדם and שור דאזיק שור as two separate אבות נזיקין. Then the גמרא continues, האונס והמפתה והמוציא שם רע, דממונא הוא, ליתני. We're still on the question against רבי אושעיא. Why doesn't רבי אושעיא mention אונס ומפתה ומוציא שם רע? And at this point the גמרא feels it's ממונא. And so if we said before, the reason he doesn't learn the אבות of רבי חייא is because he doesn't learn קנס, but this is ממונא. And the ליתני, therefore the גמרא asks, let it say. And the גמרא answers, ממה נפשך. What are we talking about? אי נזק, if we mean, when we say that אונס ומפתה ומוציא שם רע is ממונא, we refer to the נזק, the damage that you have to pay for, because when you are an אונס ומפתה or מוציא שם רע, you cause damage to the person, because before that, this person was worth a certain amount of money, now she is worth less, so that is actually damage. So if you are referring to the damage, תנא ליה, he did learn damage. One of the אבות נזיקין of רבי אושעיא is נזק. אי צער, if you mean the money that you have to pay for the pain that you caused her, תנא ליה, he learned that too. אי בושת, if you're referring to the money that he has to pay for the embarrassment he caused her, תנא ליה, he learns that too. אי פגם, if you're referring to the פגם, which means the blemish that he caused her, in other words, that now she is worth less than before, היינו נזק, that is the same as נזק. In this case, this is the damage that you caused her, and damage he already learned. מאי אית לך למימר, so what other thing are you asking? In other words, which thing did you mean that רבי אושעיא did not learn and you're asking, why didn't he learn it? You mean the קנסא, the קנס that you have to pay in the case of אונס ומפתה ומוציא שם רע, we just said, בקנסא לא קמיירי, that קנס רבי אושעיא doesn't talk about. And therefore, there is no reason for רבי אושעיא to mention אונס ומפתה מוציא שם רע. Then the

גמרא continues, המטמא והמדמע והמנסך, דממונא הוא, ליתני. If a person makes טמא someone else's thing, or he mixes תרומה into someone else's חולין, or he pours someone else's wine for עבודה זרה, so those are three אבות mentioned by רבי חייא. This is ממונא, this is actually money that you have to pay for the damage you caused, why doesn't רבי אושעיא mention those? And the גמרא answers, ממה נפשך, אי היזק שאינו ניכר שמיה היזק, הא תנא ליה נזק. אי היזק שאינו ניכר לאו שמיה היזק, הוה ליה קנסא, ובקנסא לא קמיירי. We find a מחלוקת in the גמרא whether היזק שאינו ניכר שמיה היזק or לאו שמיה היזק. If a היזק that you caused somebody, but it is not recognizable, whether that is considered a היזק. In other words, whether you have to pay for that מן הדין. And if If you hold that היזק שאינו ניכר is not considered היזק, then מן הדין you really wouldn't have to pay for מטמא ומדמע ומנסך, because when you make someone else's object טמא, really you cannot see that it's טמא. You cannot see that there was a damage caused to that object. Or if you mix תרומה in someone else's חולין, or if you pour someone wine's for עבודה זרה, there was really no damage that was caused to the object that you could see. And therefore, if you hold היזק שאינו ניכר is not considered היזק, you really would not have to pay for these three. And if you would have to pay, it would only be a קנס that you would have to pay. And therefore, the גמרא says like this: that when we asked why רב אושעיא doesn't mention מטמא ומדמע ומנסך, so the גמרא says, if you hold היזק שאינו ניכר שמיה היזק, that it is considered היזק, then לכתחילה there is no question why he doesn't mention them, because it's included in the נזק that he said. He said you have to pay for נזק, and this is also a נזק, so therefore he doesn't have to mention them separately. And on the other hand, if you hold that היזק שאינו ניכר לא שמיה היזק, in other words, this would not be considered a היזק, and the only reason you would have to pay is because it's a קנס, so we know why he doesn't mention it, because בקנסא לא קמיירי, because he doesn't mention anything that has to do with קנס. Then the

גמרא goes on the other hand, לימא, so let us say, קסבר רבי חייא היזק שאינו ניכר לא שמיה היזק. So it comes out that רבי חייא, who does mention it, probably holds that היזק which is not recognizable is not considered היזק. ואי שמיה היזק, if רבי חייא would hold that היזק שאינו ניכר is היזק, הא תני ליה נזק, didn't he learn נזק? Why does רבי חייא have to mention המטמא והמדמע והמנסך? He mentions the thirteen of רב אושעיא too, and one of those is נזק. So, there is already נזק mentioned in the אבות of רבי חייא. Why does רבי חייא have to mention separately המטמא והמדמע והמנסך? So that proves that he holds really that these three are not a נזק. And therefore, it's not included in נזק. And the reason he mentions it because, as we said before, רבי חייא does mention קנס, and therefore he mentions these three because they are קנס. So it seems from here that we could prove, the גמרא says, that רבי חייא's opinion is that היזק שאינו ניכר לא שמיה היזק. And the גמרא says no, it's no ראיה. It's possible that רבי חייא holds היזק שאינו ניכר שמיה היזק. אי, the question was, why does he have to mention these three separately when he already wrote נזק? Because תני היזקא דמינכרא ותני היזקא דלא מינכרא. He learns היזק that is recognizable, and he separately learns, as a separate אב, היזק which is not recognizable. In other words, he divides that into two categories: a separate category is a היזק that you could recognize, and separate category is a היזק that you cannot recognize. Then the

גמרא continues: בשלמא לתנא דידן, ממילא we understand according to the תנא of our משנה, תני מניינא למעוטי דרב אושעיא. The reason he starts off by saying ארבעה אבות נזיקין, that there are four אבות נזיקין, and לכאורה there is no reason for him to mention the number. If he would just say אבות נזיקין, that there are אבות נזיקין, and mention השור והבור והמבעה וההבער, we ourselves would be able to count it and see there are there is four. What is the reason he mentions the number ארבעה? So that makes sense: למעוטי דרב אושעיא. He stresses to be ממעט, to exclude the אבות of רב אושעיא, to show that he holds that there are only four אבות נזיקין, and not thirteen as רב אושעיא. Also we know רב אושעיא תני מניינא למעוטי דרבי חייא. The reason רב אושעיא mentions a number is to exclude the אבות of רבי חייא. אלא מניינא דרבי חייא למעוטי מאי? Why does רבי חייא mention a number? What does he come to exclude? And the גמרא says: למעוטי מוסר ומפגל, comes to exclude two more types of damages that we could have thought are also אבות נזיקין, and he excludes them.

One is מוסר, if someone is an informer, and he gives over another Jew's money to the government, and he causes that damage to the other ייד. And מפגל is if a כהן has the wrong intentions while he brings the קרבן of a ייד, so that קרבן becomes פסול. So here the כהן caused a היזק to the other ייד. So he comes to exclude these two. That's why he mentions that there are twenty-four אבות נזיקין. But then the גמרא asks, וליתנינהו, let him learn it! Why טאקע doesn't רבי חייא learn these? בשלמא מפגל, and the גמרא says, ממילא we understand why he would not learn מפגל, because בקדשים לא קמיירי, because he is not talking in the case of קדשים, he is only talking about damages which were done in חולין. אלא מוסר, מאי טעמא לא תני? But when it comes to מוסר, why doesn't he learn that? That is not קדשים! And the גמרא answers, שאני מוסר דדיבורא. מוסר is different, because the damage that is caused from through the informer is caused swers that דיבורא דאית ביה מעשה הוא. This is a speech that comes along with an action. Because as רש"י says, the only time there is a דין of מוציא שם רע is if it comes after he had בעילה with her, after he had relations with her. So then this is a דיבור that comes along with a מעשה. Or as תוספות brings another opinion, that this דין of מוציא שם רע is only if the husband hired the witnesses, so this too is a דיבור that comes through an action. But then the גמרא asks, והא עדים זוממין דיבורא דלית ביה מעשה הוא? He mentions עדים זוממין amongst his אבות נזיקין, and that is also a damage caused through their speaking, and there is no action involved. So we see that רבי חייא mentions a היזק that is caused through דיבור. And the גמרא answers, התם, there, אף על גב דלית ביה מעשה, even though truth is there is no action involved in the עדים זוממין, רחמנא קרייה מעשה, the תורה calls it a מעשה. דכתיב, because it says, ועשיתם לו כאשר זמם לעשות לאחיו, you should do to him as he wanted to do to his brother. So we see that the תורה refers to it that he wanted to do something to his brother. The תורה refers to it as a מעשה. Then the גמרא continues, בשלמא לתנא דידן, according to the תנא of our משנה, תני אבות מכלל דאיכא תולדות, he learns and he calls them with the title אבות that show there are תולדות. As we said before, that all of these אבות of the משנה have תולדות. אלא לרבי חייא ולרבי אושעיא, but according to רבי חייא and אושעיא, אבות מכלל דאיכא תולדות, they also referred to them as אבות. That would prove that they have תולדות. תולדותייהו מאי נינהו? Which are the תולדות of these אבות of רבי אושעיא and of רבי חייא? אמר רב אבהו, so רב אבהו said that no, these are אבות that do not have תולדות. Now the question is, why are they called אבות? כולן כי אבות לשלם ממיטב. They all are like אבות that you have to pay מיטב. Because as we learned before there is a דין by נזקין that if you want to pay for the damage you caused with property, then you must pay with עידית, with the best of your property. So that's what they say, that these נזיקין that רבי אושעיא and רבי חייא mention are also like אבות נזיקין that if you want to pay for them with property, you also must pay with מיטב. מאי טעמא? What is the reason? In other words, how do we know that for these you also must pay with מיטב? אתיא, we learn it out through a גזירה שוה of the four words: תחת, נתינה, ישלם, and כסף. Since in every one of these it says one of these four words, or the word תחת, or the word נתינה, or the word ישלם, or the word כסף, and we find by the אבות נזיקין, the four אבות נזיקין, we find these four words. So just like by the four אבות נזיקין, when you pay with property you must pay with מיטב, so we learn out through this גזירה שוה that all the other אבות נזיקין, when you pay for them with property, you also must pay with מיטב. And רש"י goes through all the details, telling us which פסוק of the אבות נזיקין has the word תחת, which פסוק of which of the אבות נזיקין has the word נתינה, which one has ישלם, and which one has כסף. Then the גמרא continues, quotes from the משנה, it said in the משנה, לא הרי השור כהרי המבעה, שור is not like מבעה. And the גמרא asks, מאי קאמר? What does the משנה mean? The משנה says שור is not like מבעה, and then the משנה continues and מבעה is not like שור. What is the משנה trying to tell us? אמר רב זביד משמיה דרבא, so רב זביד said in the name of רבא, הכי קאמר, this is what he means: ליכתוב רחמנא חדא, let the תורה only write one of them, ותיתי אידך מינה, and I would learn out the other one from it. הדר אמר, so then the משנה continues and says, חדא מחדא לא אתיא, one from one we couldn't learn out. In other words, if it would just say שור we wouldn't know מבעה, because there is a חומרא in שור over מבעה, as we learned before, and if it would just say מבעה, we wouldn't know שור because there is a חומרא in מבעה over שור. And the reason why the גמרא all of a sudden here asks what the משנה means, so תוספות says, because the לא הרי of the משנה here is different than the לא הרי of other places in the ש"ס. As תוספות explained on the first עמוד of this מסכתא that usually in the ש"ס, whenever it says לא הרי one thing like the other thing, usually it means that there is a חומרא in the second thing over the first. Here in the משנה it means just the opposite, that there's a חומרא in the first over the second. In other words, when it says לא הרי השור כהרי המבעה, it means there's a חומרא in שור over מבעה. And that's why the גמרא thought maybe here the words לא הרי השור כהרי המבעה mean something else. And therefore the גמרא asks, מאי קאמר? And the גמרא answers, no, this This is what the משנה meant, that let it say just שור and we wouldn't need מבעה, and the answer is no, that we couldn't learn out מבעה from שור because of a חומרא in שור. And the same is לא הרי המבעה כהרי השור, that there's a חומרא in מבעה that שור doesn't have. Then the גמרא continues, it said in the משנה ולא זה וזה שיש בהן רוח חיים, that these two, שור and מבעה, are not like אש because they have a רוח חיים and אש doesn't. So the גמרא also asks, מאי קאמר? What does he mean that these two are not like אש because they have a רוח חיים? אמר רב משרשיא משמיה דרבא, so רב משרשיא said in the name of רבא, הכי קאמר, this is what he means: ליכתוב רחמנא תרתי, let the תורה just write these two, שור and מבעה, ותיתי אידך מינייהו, and I would be able to learn out the other one, which in this case is אש, from it. הדר אמר, so then the משנה says, חדא מתרתי לא אתיא. One out of the two we couldn't learn out. In other words, if the תורה would just write שור and מבעה, we would not know אש, as the משנה says, because שור and מבעה have a חומרא of רוח חיים, while אש does not have the חומרא of רוח חיים. Then the גמרא continues,

אמר רבא, רבא says, כולו כי שדית בור בינייהו אתיא כולו במה הצד. The truth is, רבא says, that if the תורה would write just בור and one other one of the אבות נזיקין, the תורה would not have to write the rest because we would be able to learn out all the rest from these two במה הצד. A מה הצד, or sometimes it's called a מה מצינו, refers to a case where we want to learn out a דין in a certain case from another case. And there is a חומרא in that other case, and because of that we couldn't learn out the second case from the first, because we're always able to say, you know why the דין in the first case is so and so, because of its חומרא, while case number two that doesn't have the חומרא, maybe does not have the same דין? And what do we do? We have to find a third case which also doesn't have the חומרא, and nevertheless has the same דין as the first. And then we say that you cannot say that the reason the first case has this דין is because of that specific חומרא, because here you see the third דין also doesn't have the חומרא, and nevertheless it still has the same דין. And that shows that that חומרא is not the reason why the דין is so and so, and we're able to learn out דין number two from the second case. But then we can ask, so why do we need the first? Let's learn it out directly, דין number two from דין number three. Because sometimes there's a different חומרא that the third case has that the second doesn't. So we can't learn out the second case from the third because we're always able to say that maybe the reason why the דין is so and so in the third case, because of its חומרא. So then what do we do? If we're able to say that the first case does not have the חומרא of the third, so then that shows that the חומרא of the third is not the reason for the דין. And what we do is we go back and forth. We say like this: Let's learn out from the first, but we can't because of its חומרא. Then we have this third case יוכיח, the third case proves that the חומרא is not the cause for the דין. But then we ask a קושיא that the third case also cannot be the source of the לימוד because it has a different חומרא. And then we go back to the first and we say, look, the first doesn't have that חומרא either, and nevertheless the דין is so and so. And we go back and forth and back and forth. We're מוכיח, we prove from the first that the חומרא of the third is not the cause; we prove by the third that the חומרא of the first is not the cause. And then we say that מה מצינו, we find in both of these two one common point, which is similar to the second, and therefore, since we see that the חומרא of each is not the cause, nevertheless there is one thing that they do have in common, so if דין number two has the same thing in common as דין number one and דין number three, then we're able to learn out from דין number one and דין number three that the same thing would apply to דין number two. And that's what the גמרא is saying here, that if the תורה would just write בור and one more, one other אב, we would be able to learn out all other אבות from these two with a מה הצד. When we try to learn it out from the first and we'll say we can't learn out from the first because of a חומרא, we'll say, look at the second, it doesn't have the חומרא and still the דין is that you're חייב. Then we'll ask, but the second one has a different חומרא, so we'll say, well look, look at the first, it does not have that חומרא and nevertheless you're חייב. So from these two together, we say that we see that either of the חומרות is not the reason. On the other hand, it has a מה הצד, an equal common point in both, and from these two we could learn out any other of the אבות. And רש״י goes through the details to tell us exactly how we're able to learn out every single אב from בור with any other of the אבות. But the גמרא says that if we would have בור and any other of the אבות, we would know them all with a מה הצד, this is only לבר מקרן, except קרן. קרן we couldn't learn out, because משום דאיכא למיפרך, we're able to ask a קשיא, מה לכולם שכן מועדין מתחילתן? Because there is a חומרא that all others have, בור and the rest of them have, that קרן doesn't have. And therefore, whichever way we're going to want to learn out קרן, we'll always be able to say that you know why those are חייב? Because of the חומרא they have, while קרן doesn't have the חומרא. And what is the חומרא? The חומרא is שכן מועדין מתחילתן, that all of them are a מועד from the beginning. And the way רש״י learns, seems to be learning the פשט, is that means that by all מזיקין there is no such thing as a תם. There is no such thing as the first, second, or maybe third time you only pay חצי נזק. You pay נזק שלם from the beginning, it is a מועד from the beginning. While by קרן there is this קולא that קרן has a תם in the beginning, and later turns into a מועד. So whichever, whichever combination we're going to make of any two אבות and want to learn out קרן from it, to say that just like in those two אבות you're a חייב, so too you're חייב by קרן, we'll always be able to ask and say, you know why you're חייב by those? Because they have the חומרא of being a מועד from the beginning. While קרן doesn't have the חומרא because you are not a מועד from the beginning, so maybe there is no חיוב by קרן, and therefore we could not learn out קרן. But on the other hand, the גמרא says, ולמאן דאמר אדרבה, קרן עדיפא, but according to the מאן דאמר that holds that קרן, on the other hand, is more חומראדיק, has a greater חומרא than the rest of the אבות נזיקין, because שכוונתו להזיק, because קרן has the characteristic that it is מזיק with intentions to be מזיק, so then, אפילו קרן נמי, we're also able to learn out קרן, because we cannot say that the rest of them have a חומרא over קרן, because on the contrary, קרן has a חומרא over all of them, that קרן has כוונתו להזיק. Before we continue further, it is important to note that רש״י explains that when the גמרא says that if you will put בור and one more, then that would be enough to learn everything out, except קרן, the גמרא didn't really mean

only בור. The truth is, any two that the תורה would say, as רש״י explains in detail, we could learn out most of them. The only thing is, that if it would say בור with one more, then we would learn out the most, while if it would say other two, then there would be probably two that we couldn't learn out, as רש״י explains in detail. Now the גמרא continues: אלא למה הלכתא כתבינהו רחמנא? If so, that we established that if the תורה would just write בור and one more, we could learn out all the אבות נזיקין, so why did the תורה write them all? Why wasn't it enough for the תורה to just write בור and one more, and then the תורה would not need to write the rest, because we would know them ourselves? The גמרא answers, להלכותיהן, for their הלכות. In other words, since each one of the אבות has its own הלכות, therefore if the תורה would just write בור and one more, and we would just learn out the other אבות on our own, then we wouldn't know those specific הלכות that apply to each one of the אבות. And the גמרא goes through mentioning the specific הלכות that apply to each one of the אבות.

קרן, which specific הלכה applies to קרן? לחלק בין תם למועד, to make a difference between תם and מועד. If the תורה would not write specifically the דין of קרן, we would not know that there is a difference between a תם and a מועד, because we would learn out קרן from בור and one more, and we would say, just like בור and the other one are חייב נזק שלם right from the beginning, so קרן would be חייב נזק שלם from the beginning. So therefore the תורה has to mention קרן to tell us that there is a difference between תם and מועד. שן ורגל, the reason why the תורה must write שן ורגל, לפטור ברשות הרבים, to show that they are פטור in רשות הרבים, because there is a specific דין by שן ורגל that if this was done, this damage was done in the רשות הרבים, the public domain, then the owner of the ox that did it is פטור from paying. As we learn it out from the פסוק, ובער בשדה אחר, that the only time you are חייב for שן ורגל if the ox went into the domain, the רשות of the ניזק, and he damaged him there through שן ורגל. But if it was done in the רשות הרבים, the owner is פטור. So if the תורה would not write the דינים of שן ורגל specifically, and we would just learn it out from בור and another one, then we would not know this דין that שן ורגל are פטור in רשות הרבים.

בור, why does the תורה have to write בור? לפטור בו את הכלים, to tell us that if כלים broke in the בור, vessels broke in that pit, you are פטור from paying. And as רש״י explains, really the גמרא didn't have to give a reason why the תורה writes בור, because as we said, בור and one more would have to be written The whole קשיא is, why did the תורה have to write the rest? Why wasn't it enough for בור and one more? So בור definitely had to be written, so there was no reason for the גמרא to mention the specific הלכות of בור, since there is no קשיא on בור to begin with. But אגב, since he mentions the הלכות of the others, he mentions the הלכות of בור also. And he mentions the הלכה is that if כלים broke in the בור, you are פטור. But then the גמרא asks, ולרבי יהודה, according to רבי יהודה, דמחייב על נזקי כלים בבור, who says that you are חייב if כלים got damaged in the בור, so then why does the תורה have to write בור? In other words, which is the difference in the דין of בור? And the גמרא answers, לפטור בו את האדם, to make an אדם פטור, because the דין is that if an אדם, a person, falls into a בור and is damaged, the owner of the בור, the one that made the בור, is פטור from paying. And if the תורה would not write בור, we would not know that specific דין. אדם, why did the תורה have to write אדם? Because according to רב, מבעה of the משנה is אדם, it's one of the אבות נזיקין. So why did the תורה have to write that if אדם is מזיק you're חייב to pay? Why couldn't we learn that out from בור and one more? לחייבו בארבעה דברים, to tell us the special דין by אדם that he's חייב in four things: he's not only חייב in נזק, he's also חייב in צער, ריפוי, שבת, and בושת. אש, why did the תורה have to write אש and it's not enough that it would be learned out from בור and one more? לפטור בו את הטמון, to tell us the דין that you are פטור if something was hidden in the place that got burned, that if someone put, let's say, someone else's field on fire, and let's say there were garments hidden in the field, and that got burned, so the one that made the fire is פטור for those garments, because אש, you are פטור טמון. The גמרא asks, ולרבי יהודה, according to רבי יהודה, דמחייב על נזקי טמון באש, who says that you are חייב for the damages of the object that was hidden, even by אש, so according to him, לאתויי מאי? What does it come to include? Why did the תורה have to tell us the דינים of אש? What are the specific דינים of אש that we wouldn't know if the תורה wouldn't tell us? And the גמרא answers, לאתויי לוחכת נירו, it comes to include if the fire burned someone else's plowed field, וסכסכה אבניו, or if it grazed his stones. So if not for the תורה telling us אש, we would think that you are פטור in this case, being that this is not ראוי לאש. This is not the regular thing a fire burns. So if not for the special פסוק of אש that teaches us that you are חייב for this, as רש״י brings, that we learn it out from the פסוק או השדה, that even in a case like this, you are חייב even if it didn't actually burn something, it just destroyed it through the fire, like in the case of the stones, it didn't burn the stones, it didn't burn the קרקע, it didn't burn the field, it just did something that would cause the person to have to replow it, so it caused him damage, or it caused him to have to clean the stones, still you are חייב, and that's why the תורה has to tell us אש. As mentioned before, רש״י goes through the details of how we would have learned out all the אבות from בור and one more. So just to give an example how it would go, let's see how we would learn out שן from בור and קרן, and we would say as follows: מה לבור, which is אין דרכו לילך ולהזיק, a בור is not מזיק, does not damage by going to the thing that he damages, nevertheless, you are חייב. שן, which is דרכו לילך ולהזיק, the way an animal damages through שן is by going to the object and eating it, so certainly you should be חייב. But then you could ask, you know why בור is חייב? Because תחילת עשייתו לנזק, that the beginning from when it was made, it's already ready to cause damage. But שן is not that way, so maybe שן is not חייב, so you cannot learn out שן from בור. So what do we do? We say, קרן יוכיח, we'll prove it from קרן. That you see קרן is not תחילת עשייתו לנזק, it is not made לכתחילה for damage, and nevertheless, you are חייב, so too שן you are חייב. But then you could ask, you know why קרן is חייב? Because כוונתו להזיק. קרן has a different חומרא, the חומרא that when it is מזיק, it does it with intention to be מזיק. But שן does it for its own הנאה. When the animal is מזיק through eating, it does it for his own pleasure. So maybe in a case like that, you are not חייב, so we cannot learn out שן from קרן. So we answer, now בור יוכיח, we go back to the other one, which was בור, and we say, you see that בור is not כוונתו להזיק, and nevertheless you are חייב, so too with שן. But then we have the question on בור that we said before, that תחילת עשייתו לנזק, and we will answer, קרן יוכיח. And then we ask the question on קרן, and we go back and we say בור יוכיח, and that's how we go back and forth. The הצד השוה is that both of them are דרכו להזיק, both of them is מזיק, and both of them is ממונך ושמירתן עליך, they are your object and you are obligated to watch it, and therefore you are חייב. So too שן, that when it damages through שן, you are חייב because שן is also דרכו להזיק, and שן is also ממונך, and also שמירתן עליך. And the same we would would be if we would want to learn out, let's say, רגל from קרן ובור, because when you would ask that you know why בור is חייב because תחילת עשייתו לנזק, while רגל is not תחילת עשייתו לנזק, you will say קרן יוכיח. Then you will ask, you know why קרן is חייב because כוונתו להזיק, you will say בור יוכיח. And you will go back and forth and learn it out from the צד השוה. And the same if you want to learn out אש from קרן ובור, you would start off by saying that we could learn it out from בור because מה לבור which is אין דרכו לילך ולהזיק, it doesn't go and מזיק, you are חייב, the others which the דרך is to go and to be מזיק you're certainly חייב. But then you could ask, you know why בור is חייב because תחילת עשייתו לנזק. And you would go on and say each time the other one יוכיח, and you'd go back and forth, and you'd come out with the צד השוה, and that's how you would learn out each one that you want to learn out. That is if you would be learning out from בור and קרן. The same is if the תורה would write בור and שן, you could learn out the rest except קרן, as the גמרא says. How would you learn out? You would start off the same way by saying, מה לבור which is not דרכו לילך ולהזיק you are חייב, רגל and אש which is דרכו לילך ולהזיק you're certainly חייב, and also אדם the same. Then you would ask, but you know why בור is חייב because תחילת עשייתו לנזק, but these are not תחילת עשייתו לנזק, you would say שן תוכיח, that שן is not תחילת עשייתו לנזק and nevertheless you are חייב. So too the others that we want to learn out are also חייב, even though that not תחילת עשייתו לנזק. Then you could ask, but you know why שן is חייב because יש הנאה להיזקו. שן has this characteristic, this חומרא, that it has הנאה for his היזק, maybe that's why it's חייב, but the rest don't have הנאה for the היזק, maybe you shouldn't be חייב. And we answer בור תוכיח. בור is not הנאה להיזקו and nevertheless you are חייב. And you go back and forth, and you end up with the צד השוה, and from the צד השוה you will learn out the rest. But all we could learn out except קרן, as the גמרא says, because by קרן, as the גמרא says, we could ask that you know why the צד השוה, those two that the תורה will be mentioning, you know why you are חייב there? For instance, בור and שן, because מועדין מתחילתן. Because בור and שן have this characteristic that they are מועד from the beginning. And as רש״י seems to be learning that there is no such thing as תם and מועד by בור and by שן, by all the other אבות נזיקין. That לכתחילה, from the first time the damage was caused, you are a מועד. But קרן, קרן you are first a תם then a מועד, that's a קולא, maybe you are not חייב. And therefore we cannot learn out. And the same would be if it would say בור and רגל, we could learn them all out, and רש״י explains exactly how we could learn them all out. But it's important to note that תוספות asks a קושיא on רש״י's פשט in the words of the גמרא, שכן מועדין מתחילתן. Because the גמרא says that whichever two it would say in the תורה we would could not learn out קרן because we could always ask that there is a חומרא in the others over קרן, that others are מועדין מתחילתן, that they are a מועד from the beginning, while קרן first you are a תם, then you are a מועד. But תוספות asks, how can the גמרא say that according to this פשט? Because if what we're saying is the תורה should just write two אבות and we would learn the rest out, and we would learn out קרן too, we're trying to see whether we could learn out קרן too or not, that means that the תורה should not have written קרן. Now, if the תורה would not have written קרן, we would not have known that קרן is a difference between תם and מועד. When we ask the other questions, those are questions that we take from the characteristics of that אב, that there's a חומרא in those two over the one that we're trying to learn out because of the characteristics of those two over the one that we're learning out. But the קושיא, שכן מועדין מתחילתן, is not a קושיא in the characteristics of קרן and the rest, that's in the הלכה of קרן, that the הלכה of קרן is that it is a תם first, then a מועד, and in the others there's no such הלכה. But if the תורה wouldn't have written קרן, we wouldn't know this הלכה. So then how can we say that if the תורה would not have said קרן we couldn't learn out קרן from the rest because we would say that קרן has a קולא, that לכתחילה you are a תם? Who says you would be a תם לכתחילה? If the תורה wouldn't say קרן, then we would טאקע say that קרן also you are a מועד from the beginning because the תורה all wouldn't have mentioned the דין קרן, so we wouldn't have known this דין. The תורה wouldn't have told us this דין that first you are a תם. So how could the גמרא ask that that way? So therefore the רבינו תם learns that when the גמרא says that we couldn't learn out קרן because we could ask that the rest of them are מועדין מתחילתן and not קרן, and And then the גמרא said that למאן דאמר that קרן עדיפא, that קרן is even stronger, because כוונתו להזיק, then even קרן could be learned out because קרן is even more חמור than the rest. And רש״י said that he doesn't know who is this מאן דאמר, or where it says that קרן is עדיפא. So תוספות says that really this refers to the מחלוקת later on in the גמרא concerning whether פלגא נזקא קנסא or פלגא נזקא ממונא. The גמרא later on has a מחלוקת whether when we say that you have to pay חצי נזק by קרן, is it ממון, that really that is the money that you pay for the damage, and the truth is you should have really have to pay the whole amount even by a תם. The only reason we pay half is because the תורה had רחמנות, because after all, it's only the first time it happened. Or we learn that חצי נזק is קנס, that באמת a תם should not have to pay at all, and it is a קנס that the תורה gave. Since you should have after all watched your שור and you didn't, you have to pay at least חצי נזק. And the גמרא explains the reason of the מחלוקת: that the one that holds חצי נזק is ממון holds that שוורים לאו בחזקת שימור קיימי, that normally an ox is not watched, and you have to watch it even from the beginning. And therefore, if it caused damage, you are responsible, and really you should pay the whole thing, the תורה just took off half. The one that holds פלגא נזקא קנסא, half of a נזק is קנס, holds that באמת every ox is watched. So therefore, really you shouldn't have to pay at all, because you didn't really have the responsibility to watch it, because it's watched by itself. But nevertheless, since after all you should have watched it, even though it's בחזקת שימור, so therefore the תורה קנס'ד you, gave a fine that you have to pay at least חצי נזק. So that is a מחלוקת whether normally a שור is watched or not. And that's what the גמרא means here, that we couldn't learn out קרן because we could ask, all the other אבות have a חומרא: מועדין מתחילתן, which means that there is a reason לכתחילה why you have to pay. By קרן, since we accept - this will go according to the מאן דאמר that פלגא נזקא קנסא - so we assume that לגבי קרן, a שור is watched לכתחילה. So therefore that is a קולא, that that's what the גמרא means, that the rest of them are מועדין מתחילתן, there's a reason to watch them from the beginning, while by קרן we say it is שמור, it is watched by itself, and therefore that is a קולא, it's a reason not to be paid. So therefore, we would think you couldn't learn out קרן from the rest. But למאן דאמר קרן עדיפא, according to the other מאן דאמר, the one that holds חצי נזק is ממון, so he holds that קרן, you are חייב לכתחילה because you should have watched it, because the חזקה of an ox is not to be watched, it is only that the תורה took off half, the תורה had רחמנות and took off half. According to that מאן דאמר, we could learn out קרן from the rest, because you can't say קרן is weaker than the rest because קרן is something that you don't have to watch from from the beginning, because according to this מאן דאמר you do have to watch קרן from the beginning, and therefore we could learn out קרן from the rest also, we cannot ask that קרן is not מועד מתחילתו. And according to this פשט, we know what this מחלוקת is, not like רש״י says, he doesn't know where the מחלוקת is, whether קרן is stronger or not, but according to תוספות, this this is the מחלוקת whether פלגא נזקא קנסא or פלגא נזקא ממונא.