There is a very interesting chiddush that comes out of Tosfos in the din of yored sh'lo bershus but I can't understand because I don't really know anything about yored sh'lo bershus.
Tosfos is asking in the sugya of makif v'nikad where a makif built gedarim which benefits the nikaf. So lechora this is a din of yored sh'lo bershus which would required the nikaf to either pay the yetzia of the nikaf or the shevach of his field (how much his field went up in value).
But Chiya Bar Rav says the nikaf can simply pay Kanim b'Zol, which is seemingly much less than the yetzia or shevach. Tosfos is wondering why doesn't the nikaf have to pay either yetzia of shevach? Why does he get off easy by being able to only pay Kanim b'Zol??
So Tosfos answers because the nikaf can taina l'Didi Sagi b'Netirah Bar Ziza. So then why doesn't he have to pay just a zuz rather than Kanim b'Zol? So he says because there is an anan sehadi that the nikaf would pay Kanim b'Zol.
Here is my question, Tosfos did not say that the nikaf can just taina that I would have paid Kanim b'Zol. He has to first have a taina of l'Didi Sagi b'Netirah Bar Ziza, and only then he can pay Kanim b'Zol.
It seems to me that Tosfos's pshat has to do what the mechanics are of yored sh'lo bershus. If someone is yored sh'lo bershus and builds a geder for you, you can taina I don't need your geder at all because I could have hired a shomer. But you can't taina I NEED YOUR GEDER BUT I WOULD HAVE GOTTEN A CHEAPER ONE.
So this is my question:
#1 What is the lumdus of yored sh'lo bershus where it's okay to taina I don't need what you benefited me?
#2 What is the lumdus of yored sh'lo bershus where it's not okay to taina I do need what you benefited me but I would have done it cheaper.
Menachem Zaman, United States
Dear Menachem,
The Poras Yosef on the Daf explains why Tosfos doesn't say the claim of "Bar Zuza" (not like Rashi here); it is because Tosfos learns "b'Zol" is at a discount price and that he cannot claim here (that he should pay the full price of Kanim), so he had to learn his way.
Also, Rashi learns (Bava Kama 20b) that Netira var Zuza is a thorn fence, not a watchman.
So, on the first question, a person doesn't pay only for what he gains, and for him Kanim is all that is needed.
On question two, your Diyuk is incorrect, as getting cheaper is a good claim.
All the best,
Reuven Weiner
Rav I don't think I made any diukim; what I explained is pashut pshat of Tosfos without any fancy footwork. That's why I'm not really understanding the answer you gave.
Let me ask a basic question:
Tosfos answers that the owner can claim that I require only a Zuza Bar Netirah. Why did not Tosfos answer that the owner can claim that I only require a geder kanim b'zol, not a geder avanim?
Dear Menachem,
The Gemara says he only has to pay Kanim (reeds) at a discount price (b'Zol), less than the normal price of reeds.
The truth is that if the Nikaf claims that "for me, the Kanim are enough, and I am willing to pay the regular price of Kanim," he could pay just that, but the Gemara says he can pay even less -- Kanim b'Zol -- why? Tosfos has to come up with a complicated answer:
Apparently, the Nikaf says that "for me, it is enough to pay a Zuz (even less than Kanim b'Zol), since for me Netirah Bar Zuza is enough!" (Netirah Bar Zuza is either a thorn fence (the cheapest type of fence) or a watchman). But we do not let him pay only a Zuz since we know (Anan Sehadei) that he would pay for sure to have Kanim if they were offered to him at a discounted price.
All the best,
Reuven Weiner