3b----------------------------------------3b

1) THE PROOF THAT "TZEROROS" IS A "TOLDAH" OF "REGEL"
QUESTIONS: Rav Papa says that 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 Nezek 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 (monetary 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 have been a Kenas just like the Chatzi Nezek of Keren Tamah. This is true only according to the opinion that Chatzi Nezek of a Keren Tamah is a Kenas (15a). Rav Papa himself (15a), however, 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 one 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 implies that Tzeroros is a form of damage that comes about through the normal conduct of an animal ("Orchei"), 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 teaches. The first possibility is that Tzeroros is similar fundamentally to Keren, and the Halachah l'Moshe mi'Sinai teaches that its payment is nevertheless Mamon, like Regel, and not Kenas. The second possibility is that Tzeroros is similar fundamentally to Regel, and the Halachah l'Moshe mi'Sinai teaches that it pays Chatzi Nezek like Keren. What exactly does the Halachah l'Moshe mi'Sinai teach?
(a) RASHI explains that the Halachah l'Moshe mi'Sinai teaches that the payment of Tzeroros is not Kenas but Mamon. It is clear from Rashi that logically one 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 asked in the first question above)!
The second question answers this question. Rav Papa himself does not maintain that every payment of Keren is Kenas. Rather, he maintains 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 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 that it is Mamon, it meant that according to those who maintain that Keren is normally Kenas, this is what the Halachah l'Moshe mi'Sinai teaches (i.e. that Tzeroros is Mamon and not Kenas). This answers the first and second questions.
Regarding the third question -- why does the Gemara not say that Tzeroros is a Toldah of Regel because it is done by the foot -- 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 Keren. The Gemara therefore must 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 in Shitah Mekubetzes.)
This answers the fourth question as well, why Rav Papa does not agree with Rava who says that the reason Tzeroros is a Toldah of Regel is that one is exempt for it in Reshus ha'Rabim. Although 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 maintain that Tzeroros pays "Min ha'Aliyah," and thus it is more similar to Regel than to Keren. Rava, on the other hand, maintains 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 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 disagrees with the Sugya there over this point. The Gemara here 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 is obvious why Tzeroros is called a Toldah of Regel and not a Toldah of Keren.)
(b) TOSFOS (DH l'Fotro), 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 explained above, Rashi maintains that the Sugyos disagree with each other with regard to what the Halachah l'Moshe mi'Sinai teaches.
This explanation conforms with the statement of the Gemara later (18a), and it thus answers four of the five questions. 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 why the Gemara does not say that Tzeroros a Toldah of Regel due to the fact that it is "Orchei" is that 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 does 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 there is no reason to assume that he questions, or disagrees with, this Halachah (in contrast to Rava).
The MAHARI KOHEN TZEDEK (cited by the Shitah Mekubetzes) explains that the Gemara understands 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 about some of the Halachos of Tzeroros, one 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.
2) "TZEROROS" -- A "TOLDAH" OF "REGEL"
QUESTION: The Gemara explains that according to Rava, the reason why Tzeroros is considered a Toldah is not because one must pay "Min ha'Aliyah," because Rava is in doubt whether one pays "Min ha'Aliyah" for Tzeroros. It must be that there is a different reason why Tzeroros is considered a Toldah of Regel.
How does the Gemara know, however, that Rava agrees that Tzeroros is a Toldah of Regel in the first place? It was only Rav Papa who said that Tzeroros is a Toldah of Regel and is not similar to its Av. Perhaps Rava argues and maintains that Tzeroros is not a Toldah of Regel! (RASHBA)
ANSWERS:
(a) The RASHBA answers that the Gemara knows that all of the Amora'im had a tradition that Tzeroros is a Toldah of Regel.
(b) The TOSFOS SHANTZ adds that this point may be inferred from the Mishnah later (17a) which discusses Regel and mentions the Halachah of Tzeroros in the midst of its discussion.
(c) The GILYON (cited by the Shitah Mekubetzes) adds that Rava himself (on 18b) seems to maintain that Tzeroros is a Toldah of Regel.

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