Tosfos is trying to explain why the Braisa on 2a of Mechitzas ha'Kerem, she'Nifratzah is not hezek sh'ein nikar. He says in his last line: v'Od Iy Kenas Hu b'Meizid Davka Hayah Lo l'Hischayav
1) Tosfos is explaining that if we say the chiyuv of Mechitzas ha'Kerem is because of hezek sh'eina niker, that means the tashlumim is because of a knas Rabbanan.
2) And if the chiyuv tashlumim is a knas Rabbanan, then you are only chayav if you do it b'meizid.
3) But the Braisa of Mechitzas ha'Kerem you are chayav if you did it even b'shogeg.
4) Tosfos concludes that therefore the hezek cannot be sh'eina niker because you are chayav in the braisa even if it's b'shogeg.
Here is where my question comes in. The chiyuv tashlumim of the braisa of Mechitzas ha'Kerem is because of garmi. This means that Tosfos holds that you are chayav for garmi even b'shogeg. But you can only be chayav for garmi b'shogeg if the dina d'garmi is a doraiasa. But shitas Tosfos everywhere I know, and everybody has always told me from the beginning of my time in learning is that shitas Tosfos in garmi is d'Rabbanan.
What's going on here???? How do we explain this Tosfos in light of every other Tosfos?? Am I misunderstanding something here???
Menachem Zaman, Israel
Dear Menachem,
There are two stages in this Hezek: first, the falling of the Mechitzah, and second, not fixing the fallen Mechitzah.
The Beraisa says you are responsible for Shogeg; that means the Mechitzah fell b'Shogeg, but afterwards it was Mezid when the owner did not fix it.
That is why he is Chayav for Garmi -- for the not fixing.
Tosfos means that to put a Kenas for Eino Nikar is only when there was Mezid in the original falling of the Mechitzah, and that is not like the Beraisa.
All the best,
Reuven Weiner