It follows from this gemara that Sumchus is argueing with Halacha L'Moshe Mosinai. In introduction ot the pirush hamishnayot Rambam says that nobody argues with Halacha L'Moshe Mosinai. How can this be resolved??
B. Yuabov, NY, USA
Below is what we wrote regarding this in our Insights on the Daf for Bava Kama 3b.
Kollel Iyun Hadaf
Bava Kama 3
1) THE PROOF THAT "TZEROROS" IS A "TOLDAH" OF "REGEL"
QUESTIONS: Rav Papa says there are Toldos which are "k'Yotzei ba'Hem" (they are like their respective Av), and there are some which are not "k'Yotzei ba'Hem." The Gemara analyzes the Toldos to find the one that is not "k'Yotzei ba'Hem." The Gemara explains that the Toldah which is not like its Av is Tzeroros, for which one must pay Chatzi Nezek, even though its Av is Regel (which pays Nazik Shalem). The Gemara asks that if it pays Chatzi Nezek, then why is it considered a Toldah of Regel? It should be considered a Toldah of Keren, or it should be in its own independent category!
The Gemara answers that Tzeroros is a Toldah of Regel because one must pay "Min ha'Aliyah." Even though Rava expressed doubt about this Halachah of "Min ha'Aliyah" for Tzeroros, Rav Papa maintains that one must pay "Min ha'Aliyah" and that is why he said that Tzeroros is a Toldah of Regel.
The Gemara continues and says that according to Rava, who is in doubt whether or not Tzeroros pays "Min ha'Aliyah," Tzeroros is nevertheless a Toldah of Regel because of the exemption from damages caused in Reshus ha'Rabim.
RASHI (DH b'Chatzi Nezek) writes that there is a Halachah l'Moshe mi'Sinai that the payment of damage caused by Tzeroros is a payment of Mamon (pure indemnification) and not a Kenas (penalty). He adds that if Tzeroros is not a Toldah of Keren, it is considered a Toldah of Regel, because it is the foot which causes the Tzeroros to inflict damage.
There are a number of difficulties with the Gemara, especially in light of Rashi's comments.
1. Why does the Gemara not answer that Tzeroros is considered a Toldah of Regel because it is Mamon and not Kenas (because of the Halachah l'Moshe mi'Sinai), as Rashi explains? In contrast, a Keren Tamah that pays Chatzi Nezek is a Kenas! (GILYON in Shitah Mekubetzes; see MAHARSHAL.)
3. Why does the Gemara not answer that Tzeroros is a Toldah of Regel because the damage is caused by the foot? (HAGAHOS CHAVOS YA'IR on the Rif)
2. Rashi implies that had there been no Halachah l'Moshe mi'Sinai, Chatzi Nezek of Tzeroros would be a Kenas just like the Chatzi Nezek of Keren Tamah. This is true, however, only according to the opinion that holds that Chatzi Nezek of a Keren Tamah is a Kenas (15a). But it is Rav Papa himself there who maintains that Chatzi Nezek of all forms of Tam is Mamon and not Kenas! (GILYON in Shitah Mekubetzes, PNEI YEHOSHUA)
4. Why does the Gemara insist that Rav Papa calls Tzeroros a Toldah of Regel because one must pay for Tzeroros "Min ha'Aliyah?" Perhaps he, too, agrees with Rava that it is a Toldah of Regel because one is exempt from the damage of Tzeroros in Reshus ha'Rabim! (RASHBA, PNEI YEHOSHUA)
5. Why would we have considered Tzeroros to be a type of Keren, had the Halachah l'Moshe mi'Sinai not taught that it is Mamon? The Gemara later (18a) clearly seems to learn that Tzeroros is a form of damage that comes about through the normal conduct of an animal ("Orchei"), just like Regel. It should be Mamon even without the Halachah l'Moshe mi'Sinai! (TOSFOS SHANTZ in Shitah Mekubetzes)
ANSWERS: The answer to these questions involves a basic query in understanding exactly what the Halachah l'Moshe mi'Sinai of Tzeroros is teaching. The first possibility is that Tzeroros is similar, logically, to Keren , and the Halachah l'Moshe mi'Sinai teaches us that its payment is nevertheless Mamon, like Regel , and not Kenas. The second possibility is that Tzeroros is similar, logically, to Regel , and the Halachah l'Moshe mi'Sinai teaches us that it pays Chatzi Nezek like Keren . What is the Halachah l'Moshe mi'Sinai teaching?
(a) RASHI explains that the Halachah l'Moshe mi'Sinai teaches us that the payment of Tzeroros is not Kenas but Mamon. It is clear from Rashi that, logically, we would have thought that Tzeroros is a Toldah of Keren because it is not something that happens through the normal conduct of an animal. It seems that Rashi had the Girsa cited by the Tosfos Shantz and others, in which the Gemara includes the words, "Hilchesa Gemiri Lah d'Mamona Hu ."
Why, then, does the Gemara ask what makes Tzeroros a Toldah of Regel? The Gemara just stated that it is Mamon like Regel and it is not Kenas (as we asked in our first question)!
Our second question answers this question. Rav Papa himself does not hold that every payment of Keren is Kenas. Rather, he holds that every payment of Keren is Mamon. Hence, this quality of being Mamon does not make Tzeroros more similar to Regel than to Keren, since the payments of both Regel and Keren are Mamon. Therefore, according to Rav Papa, the Halachah l'Moshe mi'Sinai must be teaching us that Tzeroros is similar to Regel with regard to a different Halachah. The Gemara concludes that it is similar to Regel with regard to paying "Min ha'Aliyah." When the Gemara said that the Halachah l'Moshe mi'Sinai teaches us that it is Mamon, it meant that according to those who hold that Keren is normally Kenas, this is what the Halachah l'Moshe mi'Sinai is teaching (i.e. that Tzeroros is Mamon and not Kenas). This answers the first and second questions.
Regarding the third question, why did the Gemara not say that Tzeroros is a Toldah of Regel because it is done by the Regel, the answer is that there is another reason to compare Tzeroros to Keren . Tzeroros is similar to Keren in that it is not "Orchei" to cause damage in this manner, like Keren. Therefore, Tzeroros has elements of both Regel and of Keren. We must therefore search for another quality that makes it similar to Regel, so that it will be more similar to Regel than to Keren. (See MAHARAM, and GILYON cited by Shitah Mekubetzes.)
This answers the fourth question as well, regarding why Rav Papa does not agree with Rava who says that the reason Tzeroros is a Toldah of Regel is because one is exempt for it in Reshus ha'Rabim. Even though Tzeroros is similar to Regel with regard to its exemption in Reshus ha'Rabim, it is also similar to Keren in another way -- it pays only Chatzi Nezek and not Nezek Shalem. Since it is similar to Regel in two ways (the damage is caused by the foot, and it is exempt in Reshus ha'Rabim), and it is similar to Keren in two ways (it is not "Orchei," and it pays only Chatzi Nezek), there is no reason to relate it to Regel more than to Keren. Rav Papa, therefore, must hold that Tzeroros pays "Min ha'Aliyah," and thus it is more similar to Regel than to Keren. Rava, on the other hand, holds that Chatzi Nezek of Keren is normally a Kenas and not Mamon, and yet the Halachah l'Moshe mi'Sinai of Tzeroros teaches that its payment of Chatzi Nezek is Mamon , as we mentioned above. Therefore, even if Tzeroros does not pay "Min ha'Aliyah," it is more similar to Regel than to Keren. (A similar explanation is offered by the TALMIDEI RI in the Shitah Mekubetzes.)
Regarding the fifth question, how does Rashi understand the Gemara later (18a), it seems that Rashi learns that the Sugya here differs with the Sugya there over this point. Our Gemara maintains that Tzeroros is not considered "Orchei," and therefore it learns that the Halachah l'Moshe mi'Sinai teaches that Tzeroros is considered Mamon and not Kenas, even though it is not "Orchei," while the Gemara later maintains that Tzeroros is "Orchei." (According to the Gemara on 18a, it would be obvious why Tzeroros is called a Toldah of Regel and not a Toldah of Keren.)
(b) TOSFOS (DH l'Fotro) and the ROSH and other Rishonim explain that Tzeroros is damage done while the animal is behaving in its normal manner, "Orchei," and therefore logically it should be a Toldah of Regel. The Halachah l'Moshe mi'Sinai does not teach that it is Mamon but rather that it pays Chatzi Nezek and not Nezek Shalem. (See also TOSFOS SHANTZ in the Shitah Mekubetzes.)
RASHI himself takes this approach to the Halachah l'Moshe mi'Sinai of Tzeroros in Shevuos (33a) and Kesuvos (41b). As we explained above, Rashi maintains that the Sugyos argue with regard to what the Halachah l'Moshe mi'Sinai is teaching.
This explanation conforms with the statement of the Gemara later (18a), as we pointed out, and it thus answers four of the five questions that we asked. The Gemara does not contrast Tzeroros with Keren by calling it "Mamon," because Chatzi Nezek of Keren is also Mamon according to Rav Papa. The reason the Gemara does not say that Tzeroros a Toldah of Regel due to the fact that it is "Orchei" is because this similarity is countered by the fact that it pays Chatzi Nezek (like Keren) and not Nezek Shalem.
The only question that remains is why the Gemara did not suggest that Rav Papa calls Tzeroros a Toldah of Regel for the reason that Rava gives -- that it is exempt in Reshus ha'Rabim. The RASHBA answers that the Gemara had a tradition that for damage caused by Tzeroros, one pays "Min ha'Aliyah" and therefore it attributes this opinion to Rav Papa, since we have no previous knowledge that he questions or argues with this Halachah (in contrast to Rava).
MAHARI KOHEN TZEDEK (cited by the Shitah Mekubetzes) explains that the Gemara understood Rav Papa's statement to mean not only that some Toldos are similar to their Avos and some are dissimilar to their Avos, but that the Toldah of Tzeroros itself is in some way similar to its Av and in some way dissimilar. Since Rav Papa does not mention that he was in doubt regarding some of the Halachos of Tzeroros, we may infer that the only way in which Tzeroros is dissimilar to its Av is that it pays Chatzi Nezek. With regard to paying Min ha'Aliyah and all other Halachos, Tzeroros is similar to Regel, since the Halachah l'Moshe mi'Sinai deals only with paying Chatzi Nezek and not with any of the other Halachos.