According to the opinion that pi para is like the chatzar hamazik, the gemorah says that the only way to be chayiv for shein is through rubbing against a wall or ruining fruit. Rashi says that these are toldos of shein, but you would not be chayiv for the av of shein because the mazik can claim that his cow's mouth is considered his property and therefore patur. I have two questions on rashi's opinion: 1) How can you be chayiv for the toldah if you are never chayiv for the av? 2)We said at the beginning of Bava Kama that all the toldos are similar to the avos except for tzeroros. If pi para is like the chatzar hamazik, this should be another example where the av and toldah are different. The av is patur and the toldah is chayiv!
Also, the Maharam says (different than rashi) that one of the two (rubbing against a wall/ruining fruit) is the av and one is the toldah. What does he do with the gemorah on 3a that clearly lists them as toldos? Would he just say that gemorah is only if you hold pi para is like the chatzar hanizak?
Aharon Gaffen, Chicago, USA
1) The Radvaz (quoted in the Shitah Mekubetses) explains that Rashi learns that the Gemara assumed that if the owner of the damaged property guarded his property properly (i.e. in a way that people generally guard their property), then the owner of the animal is certainly responsible for damage of Shen. Also, the Gemara assumed that if the owner of the damaged property did not guard his property, then the owner of the animal is certainly not responsible for damage of Shen.
The Gemara asks, however, what the law is with regards to a case where the owner of the damaged property guarded it in a way that is less secure than the way people generally guard their property. Do we say that since the owner of the damaged property did not guard it in the regular way, the owner of the animal can say "Mai Bai Riftach B'Fumah D'Kalbai", and we consider it as if the damage took place in the property of the owner of the animal, or do we say that the owner of the animal is responsible to pay, since the damage took place in the property of the owner of the damaged article.
The Radvaz goes on to explain that according to this, the Gemara could have said that we have a case of Shen where the owner of the damaged property guarded his property in the normal way. However, the Gemara did not say this since the Pasuk tells us the Mazik of Shen in a case where the animal ate in a field and a field is usually not guarded. The Radvaz explains that the Torah refers to all cases of Shen, both where an animal ate an article that was guarded properly and was eaten and also an article that was not guarded in the normal way and was subsequently damaged in the ways the Gemara explains. However the Av of Shen is the former case. When Rashi says "Shen Mamish Lo" he means that the Shen where an animal ate an article that was not guarded properly is not included in the Parshah if we say Pi Parah K'Chatsar ha'Nizak.
See Penei Yehoshua for an alternative explanation in Rashi.
2) I agree with you. The Maharam would say that that Gemara is according to the conclusion that Pi Parah is K'Chatzer ha'Nizak.
Dov Freedman