Hello-
I have a small pshat based question in Tosafos Bava Kama 28b d"h hani mili.
I apologize in advance for transliterating all of the Hebrew--I wasn't sure if this program would accept Hebrew font.
Tosafos asks that according to the gemara on 28b, Rav holds that if a person owns a takala in a reshus harabim, the takala is considered "shor" and not "bor." On 21a, the gemara suggests in Rav that if someone has a takala in a reshus harabim, the takala is considered "bor."
I understood that Tosafos was differentiating between the type of takala--a pit or avno sakino u'masao. If the takala is a pit, Rav holds that if someone owns it, the pit is a "bor." If the takala is avno sakino u'masao, it has the status of "shor."
If this is true, I did not understand why the gemara on 21 would consider the fruits "shor," since they are not a pit and are owned.
Can you please explain where I am making a mistake?
Thank you
Dovid, United States
Hi Dovid,
I will try to explain the Tosfos, focusing on the answer to your question.
The main subject of both Sugyos are whether after the Torah says a Bor is a kind which is in Reshus ha'Rabim, a regular Bor is Hefker, and still, the person who created it, is responsible. Now, what happens if we have a Takala, which is not Hefker, but still is tripping people and Mazik them. Like in the case of the Mishna, when someone broke something in Reshus ha'Rabim, and left the ruins in the middle of the street. This is a Bor on the one hand, because people might trip over it, but on the other hand, it is not exactly a Bor since it still belongs to the Mazik, and someone's property which is Mazik someone else on the street is more like a Shor, who runs around goring.
Rashi says that Rav's opinion in our Sugya is that if the object still belongs to the owner and he did not Mafkir it, it is no longer a Bor.
Tosfos wants to offer that Rav holds that something owned by someone can still be a Bor, as long as it is in Reshus ha'Rabim. But ther are cases that we can label a Mazik with two labels. It can be a Bor, but can also be a Shor. The reason to do so, is to widen the Chiyuv in case of a Nezek, and cover more cases. We know that if Keilim fall into a Bor, the Torah was Poter the digger. If Avno Sakino u'Massao, or in our case, a broken Chavis, is in Reshus ha'Rabim, we can have two labels on them, because they are similar to a Bor in some aspects, and to Shor in other aspects.
The Sugya on 21a, is talking about fruit as you wrote, and theoretically, they could have been labled as a Shor too. But there, the Gemara wants to use a special Halacha we learn by Bor, that if someone has a Bor in Reshus ha'Rabim, it is permitted to take it from him at any time, and it is as Hefker. That is why Rav holds there, that if the animal ate the fruit, the owner is Potur, because she ate a Bor, and it is permitted. That is why we want to use the Bor label there, rather than the Shor one.
I hope this helps,
Aharon Steiner