QUESTIONS: The Gemara (6b) cites a Beraisa in which Rebbi Yishmael states that the when the verse (Shemos 22:3) says that one whose animal damaged someone else's property must pay "Meitav Sadehu," it refers to the value of the Nizak's best field. Rebbi Akiva argues and says that the verse means to teach that one must pay from Idis "and Kal va'Chomer for Hekdesh." The Gemara understands that this means that one must pay with the best of the Mazik's field and not the Nizak's. The Gemara explains that when Rebbi Akiva says, "Kal va'Chomer for Hekdesh," he means that one must pay for damages done to Hekdesh because he follows the view of Rebbi Shimon ben Menasya who rules that a Shor Tam that gores a Shor of Hekdesh must pay Nezek Shalem.

The Gemara asks what indication is there that Rebbi Akiva argues with Rebbi Yishmael on two points? Perhaps he agrees that one must pay "Meitav Sadehu" of the Nizak, and he argues only with regard to Hekdesh -- that even one who damages Hekdesh must pay and he is not exempt because of "Shor Re'ehu" (Shemos 21:35).

The Gemara answers that it is clear from Rebbi Akiva's words that he argues also with regard to whose "Meitav Sadehu" the Mazik must pay, and he maintains that he must pay the Meitav of the Mazik. This is clear from the fact that he emphasizes that his argument revolves around what is written in the verse (and paying Meitav for damage done to Hekdesh is not written in the verse, but only derived through a Kal va'Chomer). Second, if Rebbi Akiva argues only about damage done to Hekdesh, what Kal va'Chomer can he make?

RASHI explains the second inference of the Gemara as follows. If Rebbi Akiva maintains that the Meitav of the verse refers to the Meitav of the Nizak, he is lenient with the Mazik and allows the Mazik to pay just the Meitav of the Nizak. If this leniency applies to Hekdesh as well, there must be some element in Hekdesh that is more lenient than its counterpart in Hedyot. However, Hekdesh is always more severe than Hedyot, because one must pay Nezek Shalem even when one's Shor Tam damages Hekdesh, according to Rebbi Akiva's derivation from the word "Re'ehu."

(a) Why does Rashi assert that Rebbi Akiva applies a Kula (leniency) to Hekdesh with the Kal va'Chomer if he maintains that one pays Meitav of the Nizak? Perhaps he is teaching a Chumra for Hekdesh with the Kal va'Chomer -- that one must pay Meitav for damage done to Hekdesh and not just Beinonis, through a Kal va'Chomer that even damage done to Hedyot is paid with Meitav. When does Rebbi Akiva mention anything about a Kula of paying only Meitav of the Nizak? (TOSFOS DH v'Od)

(b) Why does Rashi write that the reason Hekdesh is more severe than Hedyot is that Rebbi Akiva follows Rebbi Shimon ben Menasya who rules that one whose Shor Tam gores a Shor of Hekdesh pays Nezek Shalem? Even if one would not have to pay Nezek Shalem when his Shor Tam gores a Shor of Hekdesh, logically Hekdesh still would be more severe than Hedyot since one must pay a penalty of Me'ilah for using an item of Hekdesh but not for using an item of Hedyot! In fact, for this reason the Gemara earlier (end of 6b) assumed that Rebbi Akiva was teaching that a Shor of Hedyot that gores a Shor of Hekdesh must pay Meitav through a Kal va'Chomer, even though it did not yet know that a Shor Tam that gores Hekdesh pays Nezek Shalem. (DEVAR MOSHE #104)

(c) Why does Rashi add at the end of his explanation the source for Rebbi Akiva and Rebbi Shimon ben Menasya's Halachah that a Shor Tam pays Nezek Shalem to Hekdesh? Rashi already explained the opinion of Rebbi Shimon ben Menasya and his source earlier (DH Meshalem Nezek Shalem).

Moreover, what does that source have to do with the Gemara's question here, "What is the Kal va'Chomer?" Rashi should write only that Hekdesh is more severe because a Shor Tam that gores Hekdesh pays Nezek Shalem, without repeating the source. (GE'ON TZVI, IMREI BINYAMIN)

(a) The PNEI YEHOSHUA explains that according to Rashi, when Rebbi Akiva uses the word "Idis" he alludes to the Chidush that the Tana Kama, Rebbi Yishmael, teaches in the beginning of the Beraisa. Rebbi Yishmael does not intend to teach that one pays Meitav (for that is explicit in the Torah). Rather, he teaches that the Meitav mentioned in the Torah is not the more severe type of Meitav (i.e. the Meitav of the Mazik), but rather it is the more lenient payment, the Meitav of the Nizak. When Rebbi Akiva repeats that damages are paid from Idis, if he agrees that the Idis is the Idis of the Nizak he is repeating the statement of Rebbi Yishmael in order to emphasize that one pays only the lenient form of Meitav. Accordingly, his Kal va'Chomer for Hekdesh must also teach that this lenient ruling of Hedyot with regard to Meitav applies to Hekdesh as well (not like Rebbi Yishmael, who maintains that there is no payment at all for damage done to Hekdesh).

(b) The reason why Rashi writes that the Chumra of Hekdesh is that one pays Nezek Shalem when his Shor Tam damages Hekdesh is that Rashi understands that with regard to the Kal va'Chomer, the only Chumra or Kula that matters is where one does pay for damage done to both Hekdesh and to Hedyot, but the payment to one is greater in quantity or quality than the payment to the other. Hence, if one is exempt for damaging either Hekdesh or Hedyot but he is liable for damaging the other, that law does not prove that there should be a leniency with regard to paying a normal payment and not Meitav (when there is an obligation to pay).

Therefore, the fact that one pays Me'ilah to Hekdesh and not to Hedyot cannot prove that the payment to Hekdesh should be more severe than the payment to Hedyot, in the type of case in which damages are paid to both Hekdesh and Hedyot. Rashi needs to cite the Halachah of Rebbi Shimon ben Menasya, that although a Tam pays Chatzi Nezek to a Hedyot he pays Nezek Shalem to Hekdesh, which shows that even when both payments must be made, Hekdesh is more severe.

This is the question on the potential Kal va'Chomer which would teach that Hekdesh is less severe than Hedyot and that one does not pay Meitav when he pays to Hekdesh.

What is Rashi's source for this? Perhaps Rashi follows the "Lishna Achrina" that he writes earlier (6b, DH Shor Re'ehu). Rashi there explains that one is exempt from paying for damages done to Hekdesh which is Mechubar (see previous Insight). If it is true that one is exempt for paying for damages for Hekdesh which is Mechubar even though one is liable to pay for damages done to an item of Hedyot which is Mechubar, this should refute any Kal va'Chomer which attempts to show that Hekdesh is more severe than Hedyot with regard to payments for damage. How, then, can Rebbi Akiva make a Kal va'Chomer to obligate one to pay Meitav for damaging Hekdesh, even according to Rebbi Shimon ben Menasya? (TOSFOS, DH v'Rebbi Akiva, asks a similar question according to the way he learns the Sugya, which conforms with Rashi's "Lishna Kama." However, the answers that he and the Rishonim suggest for that question have no bearing on the question according to Rashi's "Lishna Achrina.")

Because of this question, Rashi is forced to learn that the fact that one is exempt from paying Hekdesh for damages done to Mechubar does not show that Hekdesh is weaker with regard to being paid Meitav when one is obligated to pay Meitav. This opinion of Rashi is expressed earlier (DH v'Chi Teima). The Gemara there states that even if one pays Idis to a lender, a Kal va'Chomer cannot teach that one would pay Idis for a debt that one owes to Hekdesh, since Hekdesh is weaker because it does not receive payment for damage done to it (when one's ox gores an ox of Hekdesh, as derived from "Shor Re'ehu").

Instead of explaining the Pircha that Hekdesh is weaker since one is exempt from paying Hekdesh while he is obligated to pay Hedyot for damages, Rashi writes that Hekdesh is weaker because one is obligated to pay Idis for damaging a Hedyot whereas he does not pay Hekdesh at all. Why does Rashi mention the fact that one pays Idis for damage done to Hedyot? The answer is that the exemption from compensating Hekdesh cannot be a Pircha on a Kal va'Chomer which teaches a Halachah about Meitav. Rather, the Pircha is from the fact that there are fewer requirements to pay Idis to Hekdesh (and perhaps even no such requirements) than there are to pay Idis to Hedyot. Since there are fewer times where Hekdesh receives Idis, when one pays a debt to Hekdesh perhaps he may pay with ordinary fields (Beinonis) and not with Idis.

Rashi in Gitin (49a), where he does not cite the "Lishna Achrina," is consistent with this explanation. Rashi there does not mention that Hedyot is more severe because Idis is paid to Hedyot, and he also does not mention that the Kal va'Chomer of Rebbi Shimon ben Menasya is based on the law that one pays Nezek Shalem when one's Shor Tam damages Hekdesh.

(c) The answer to the second question answers the third question as well. Why does Rashi repeat that Rebbi Akiva learns that a Shor Tam pays Nezek Shalem to Hekdesh from "Shor Re'ehu"? Rashi was bothered by the following question: how can we eliminate the possibility that Rebbi Akiva is teaching a Kula by saying that Hekdesh is more severe than Hedyot since one must pay Nezek Shalem for damaging it? Since the Tana'im argue whether one is liable to pay for damages done to Hekdesh, perhaps Rebbi Akiva compromises and rules that when one damages Hekdesh he is liable; however, he does not have to pay more to Hekdesh than he pays to Hedyot. Hence, we do not find that Hekdesh is more severe than Hedyot with regard to receiving a better payment, and, therefore, if Hedyot receives only the Meitav of the Nizak, then perhaps Hekdesh also should receive only the Meitav of the Nizak.

The words "Kal va'Chomer" which Rebbi Akiva uses mean that if we find that Hedyot -- which is paid Meitav for damages of Shen and Regel -- nevertheless gets paid only Meitav of the Nizak for damages done by Keren, then Hekdesh -- which is not paid Meitav for Shen and Regel (rather, one is exempt from payment because the verse that discusses Shen and Regel does not refer to Hekdesh, since Hekdesh cannot have a field for the Shen or Regel to damage) -- certainly is paid only Meitav of the Nizak for damages done by Keren.

(If the verse of Shen and Regel is not discussing Hekdesh, Hekdesh cannot be derived from Hedyot through a Binyan Av because the fact that Hekdesh does not receive payment for damages done to its Karka is a "Pircha Kol d'Hu" which can be used to thwart a Binyan Av, even if such a Pircha is not considered a Pircha on a Kal va'Chomer, as explained above. See Chulin 116a.)

Why, then, does the Gemara ask that Rebbi Akiva must be making his Kal va'Chomer to show that Hekdesh is more severe? Rashi answers that it is impossible for Rebbi Akiva to make such a compromise and say that one pays Hekdesh the same way he pays Hedyot. The word "Re'ehu" clearly limits to Hedyot the Halachos of the verse with regard to Shor. Therefore, one must either be completely exempt for damaging Hekdesh or one must be liable more for damaging Hekdesh. Since Rebbi Akiva maintains that one is liable for damaging Hekdesh, he must also maintain that one pays more for damaging Hekdesh than for damaging Hedyot. Hence, he must maintain that the Kal va'Chomer proves that Hekdesh is more severe. (M. Kornfeld)

QUESTION: The Gemara concludes that Rebbi Akiva's Kal va'Chomer is used to teach that even one who damages Hekdesh is obligated to pay, and to pay with Meitav.

If Rebbi Akiva maintains that one is liable for damage done by Keren to Hekdesh, as Rebbi Shimon ben Menasya rules, why does he need a Kal va'Chomer to teach that one is liable to pay for damages done to Hekdesh, and that one pays Meitav to Hekdesh? According to Rebbi Shimon ben Menasya, the verse does not distinguish between Hekdesh and Hedyot with regard to payments for damages, except in the case of a Shor Tam (which pays "mi'Gufo" and does not pay Meitav). Accordingly, the same verse that teaches that Hedyot is paid with Meitav should also teach that Hekdesh is paid with Meitav! Why should a Kal va'Chomer be necessary? (RASHBA, Gitin 49a)

(a) The RASHBA in Gitin and the TOSFOS SHANTZ (cited by the Shitah Mekubetzes here) answer that Rebbi Akiva derives from the word "Acher" ("u'Vi'er bi'Sdeh Acher," Shemos 22:4) that the verse discusses only Hedyot, since "Acher" means someone else similar to the Mazik. (Although the Gemara makes no such Derashah here, the Rishonim cite such a Derashah from Zevachim 7a.) How, though, will a Kal va'Chomer teach that one is liable for damages done to Hekdesh if the verse excludes payments to Hekdesh from the word "Acher"?

The Rashba answers that the word "Acher" is not a clear Derashah, and that once there is a Kal va'Chomer, logic dictates not to expound the word "Acher" in such a way.

(b) The TOSFOS SHANTZ suggests further that Rebbi Akiva's Kal va'Chomer was necessary in order to teach that a Tam which damages Hekdesh and pays Nezek Shalem (as Rebbi Shimon ben Menasya rules) must pay with Meitav. Without the Kal va'Chomer one would have thought that one does not have to pay Meitav, since one never pays Meitav for damage done by Shor Tam, but rather one pays "mi'Gufo."

According to this answer, however, one must assume that when one pays Nezek Shalem for damage done by a Shor Tam to Hekdesh, he pays "Min ha'Aliyah" -- from Meitav -- and not just "mi'Gufo." However, the Acharonim (in Gitin 49a) point out that it seems from other Rishonim that when one's Shor Tam damages Hekdesh, one pays Nezek Shalem only "mi'Gufo," since the principle of "Dayo" ("it suffices to learn...") stops a Kal va'Chomer from obligating a person to pay more for damage done by his Shor Tam to Hekdesh than he would have to pay for damage done by his Shor Tam to Hedyot.

(c) According to the "Lishna Achrina" of Rashi (end of 6b), the Gemara is easily understood. The verse that obligates one to pay Meitav for damage done by Shen and Regel to Hedyot does not discuss damage done to Hekdesh (since it discusses only damage done to land, and Hekdesh does not own land, as explained in Insights to 6b). Therefore, although the verse does not say specifically "Re'ehu," one still would think that he is not obligated to pay for damage done to Hekdesh had the Kal va'Chomer not proved that one is obligated to pay Hekdesh, since Hekdesh is more severe than Hedyot (for when a Shor Tam damages Hekdesh, one must pay Nezek Shalem). This may be the reason why Rashi favors the "Lishna Achrina," as explained in the previous Insight.