I am learning the 2nd Tosfos on 26a dibbur ha'maschil "ve'lo tehei shen ve'regel..." and I am trying to understand the last "ve'i teima". It seems like Tosfos is asking if we accept the present kal va'chomer that shen and regel should only pay chatzi nezek in the reshus ha'nizak, then why do we need the limmud of "kaspo shel zeh ve'lo kaspo shel acher", since the kal va'chomer above (on 25b) was rejected in favor of the present one? And their answer is that without the limmud of "kaspo" which is used to reject the kal va'chomer on 25b, we would have actually accepted that kal vachomer, since that kal va'chomer leads to a chumra in tashlumin, whereas the one on 26a leads to a kula in tashlumin.
My question is, what is the hava amina of this question, since the kal va'chomer on 26a is also rejected immediately with the word "Yeshalem"? There is no basis to assume that shen and regel would pay chatzi nezek in reshus ha'nizak! Why would we accept it and then not need "kaspo" to reject the first kal va'chomer?
I looked around in the Shita Mekubetzes, and saw that perhaps the rejection of "Yeshalem--tashlumin me'alya" is not a full-out dechiya, meaning that there is a reason to accept that kal vachomer more than the first, but any clarification would be greatly appreciated.
Kol tuv!
David Peto, Houston, USA
Dear David,
Correction: in the following line you write "since the Kal vaChomer above (on 25b) was rejected in favor of the present one" - that is not what Tosfos means. Tosfos means that if the Hava Amina now is correct that Shen v'Regel is only Chatzi Nezek, then there is no basis to start the first Kal v'Chomer- since it is based on Shen v'Regel being more Chamur than Keren- but now if it's only Chatzi Nezek it is not Chamur so the first Kal v'Chomer begin and doesn't need Kaspo to block it. (Tosfos means that since we do have Kaspo then we must deduce that Shen v'Regel is Nezek Shalem.)
Regarding Yeshalem: Tosfos is explaining the point of the Gemara before Yeshalem is used when the Gemara still wants the Kal v'Chomer to make Shen v'Regel Chatzi Nezek and Tosfos asks how can the Gemara want the 2nd Kal vaChomer which will result in making Kaspo useless-and we know it's needed! And then Tosfos answers that we any way must have Kaspo to block the first Kal v'Chomer, because if not we would use the 1st and not the 2nd- that which the Gemara wants the 2nd is proof that the 1st is blocked by Kaspo-which is needed.
All the best,
Reuven Weiner