אוֹ־בֵ֥ן יִגָּ֖ח אוֹ־בַ֣ת יִגָּ֑ח כַּמִּשְׁפָּ֥ט הַזֶּ֖ה יֵעָ֥שֶׂה לּֽוֹ׃
Si un bœuf heurte soit un garçon, soit une fille, la même loi lui sera appliquée.
Tosafot
Didn't Rabbi Akiva break [the force] of his fist? The Gemara has stated that the Braita does not present the opinion of R’ Akiva about an ox that injures a person who is liable for full payment even the first time it damages. Tosafot wants to explain why the Braita cannot present this opinion. We will soon see Tosafot’ objection to Rashi’s explanation.
One cannot say that because we are taught in the Braita that he, the tam who injured a person pays from his body, which indicates that he is a regular tam who only pays half,we now know that R’ Akiva changed his mind, and no longer holds that a Tam that injures a person pays in full.
In Shemot 21, 28, the Torah is discussing an ox that gores a person. First the law of a tam is discussed and then the law of a muad. In verse 31, the Torah says “whether it gores a boy or it gores a girl, in accordance with this law shall be done to him”. Our rabbis disagree about the meaning of “in accordance with this law”.
For in Chapter Hamaineeach (later 33a), the Gemara clearly states that R, Akiva says that the payment for a tam that gores a person is “in accordance with this law” (Shemot 21, 31), the law mentioned last in the verse, the muad that pays in full, and not the law mentioned first, the tam that pays half. The same Braita continues, one might think that he must pay from the choicest etc. and the Braita proceeds to teach that payment is from its body. We see that the same Braita that teaches us that R’ Akiva holds that the tam that injures a person pays in full also holds that it pays from its body. This disproves the contention that when R’ Akiva realized that a tam pays from its body he retracted about the full payment as well. And according to Rashi’s explanation there also is a difficulty. For he explained:1The text of Tosafot’ quotation of Rashi is inaccurate. See the gloss on the side of the page. In place of “even though” it should read; “what emerges is” that sometimes the tam will not pay in full but only what the ox is worth. that even though there will sometimes be less than full payment, because the ox is not worth the full value of the damage, and since there will not always be full payment the Braita does not mention it. This is inadequate; in any case the Braita should teach two types of shor, because sometimes there will be full payment. Even though there will not always be full-payment, the fact that there will sometimes be full-payment is sufficient reason for Tam that injures a person to be listed. And we can answer: that since the tam that injures a person pays only from its body, it cannot be listed together with the other avos, because later (on this page) we say that they, those listed in the Braita of R’ Ḥiyya, are all like avos in regard to the fact that they pay from the choicest. It is only the fact that they pay from the choicest that qualifies them as avos. The tam that injures a person that does not pay from the choicest cannot be listed with the other avos.
One cannot say that because we are taught in the Braita that he, the tam who injured a person pays from his body, which indicates that he is a regular tam who only pays half,we now know that R’ Akiva changed his mind, and no longer holds that a Tam that injures a person pays in full.
In Shemot 21, 28, the Torah is discussing an ox that gores a person. First the law of a tam is discussed and then the law of a muad. In verse 31, the Torah says “whether it gores a boy or it gores a girl, in accordance with this law shall be done to him”. Our rabbis disagree about the meaning of “in accordance with this law”.
For in Chapter Hamaineeach (later 33a), the Gemara clearly states that R, Akiva says that the payment for a tam that gores a person is “in accordance with this law” (Shemot 21, 31), the law mentioned last in the verse, the muad that pays in full, and not the law mentioned first, the tam that pays half. The same Braita continues, one might think that he must pay from the choicest etc. and the Braita proceeds to teach that payment is from its body. We see that the same Braita that teaches us that R’ Akiva holds that the tam that injures a person pays in full also holds that it pays from its body. This disproves the contention that when R’ Akiva realized that a tam pays from its body he retracted about the full payment as well. And according to Rashi’s explanation there also is a difficulty. For he explained:1The text of Tosafot’ quotation of Rashi is inaccurate. See the gloss on the side of the page. In place of “even though” it should read; “what emerges is” that sometimes the tam will not pay in full but only what the ox is worth. that even though there will sometimes be less than full payment, because the ox is not worth the full value of the damage, and since there will not always be full payment the Braita does not mention it. This is inadequate; in any case the Braita should teach two types of shor, because sometimes there will be full payment. Even though there will not always be full-payment, the fact that there will sometimes be full-payment is sufficient reason for Tam that injures a person to be listed. And we can answer: that since the tam that injures a person pays only from its body, it cannot be listed together with the other avos, because later (on this page) we say that they, those listed in the Braita of R’ Ḥiyya, are all like avos in regard to the fact that they pay from the choicest. It is only the fact that they pay from the choicest that qualifies them as avos. The tam that injures a person that does not pay from the choicest cannot be listed with the other avos.
Tosafot
The verse equates a woman with a man. Most of the Torah is written in the masculine term. There are some verses where the Torah specifically addresses a man. Tosafot explains that the principle that we are presently discussing which teaches that women are equal to men in regard to all penalties of the Torah refers only to those verses that are written in the masculine term. However, where the Torah specifically mentions that it is speaking to a man, a special inclusion is needed to teach us that the mitzvah applies to woman as well.
This rule that equates women to men as far as all penalties of the Torah is specifically when the passage is said in the masculine term. Where there is no explicit reference to a male we are to assume that the Torah is speaking to women as well, even though the verse is written in the masculine term. That is the lesson of our Gemara.
Tosafot offers an illustration of his explanation that this rule applies when the verse is written in the masculine term:
כי ההיא דריש תמורה (דף ב:) דפריך אמאי איצטריך רבוי לענין תמורה לפי שהפרשה נאמרה בלשון זכר והא השוה הכתוב אשה לאיש
As can be seen from that Gemara at the beginning of Masechet T’muroh (2b),1The Gemara there says that the superfluous word in Vayikra 27, 10,-- וְאִם־הָמֵ֨ר יָמִ֤יר בְּהֵמָה֙ בִּבְהֵמָ֔ה וְהָֽיָה־ה֥וּא וּתְמוּרָת֖וֹ יִֽהְיֶה־קֹּֽדֶשׁ --teaches us that women are also included in this prohibition. where the Gemara asks: why is it necessary to have a specific inclusion to include women in the matter of T’muroh? Since the passage was said in the masculine term, the question was asked: but the Torah equated a woman to a man for all penalties of the Torah?
This is not so when the Torah specifically speaks of a “man”.
However, where “man” is clearly written in the verse, there, we definitely require an inclusion to include women in the mitzvah.
Tosafot offers proof that when the verse specifically mentions a “man” a special inclusion is needed to inform us that the rule applies to females:
As we find in that Gemara in Perek Arba Meesos (Sanhedrin 66a) where the Gemara is discussing the negative commandment prohibiting cursing one’s parents: The verse (Vayikra 24, 15) reads: a man who will curse his father and his mother. The Gemara asks: I would only know that this applies to a man, from where do we learn that it applies to a woman? We see that in this case since “man” is specifically mentioned a special inclusion is needed to teach us that the mitzvah applies to women as well. We cannot make use of the general rule that women are equal to men for all penalties of the Torah.
Based on this understanding, that when the Torah does not specifically mention “man” we utilize the general rule that equates women to men for all penalties of the Torah, we are faced with the following question:
If you ask: later in Perek Shor Shenogach Arbo’oh vaChameeshoh (44b, and Tosafot ד"ה שור האשה) where the Gemara says the word shor is repeated seven times, to include among others the ox of a woman in regard to an ox that killed, the verse is teaching us that there is liability for a woman’s ox as well.
Why is an inclusion needed, but there in that verse the word “man” is not written and we should utilize the general rule that includes women in all mitzvos of the Torah? And even though it is written in that verse “and also his owner will die” that is not a specific mention of “man”,2See Rashi 44b ד"ה שור האשה. See also Tosafot Rabbeinu Peretz. but merely a masculine term, where no special inclusion for women is needed.
Rabbeinu Tam answers this question:
Says Rabbeinu Tam: that the Gemara there 44a expounds3The word דמקשינן – literally - that we compare, appears in brackets in our Tosafot. Elsewhere in Sukoh 28b the word דדרשינן is used as is mentioned on the gloss. that the word יגח is repeated in Shemot 21, 31, twice to apply the word נגיחה" – goring” to the verse that speaks of an ox killing and to apply the word נגיחה" – goring" to the verse that speaks of an ox damaging. It is as if the Torah is telling us that whatever is true of one verse that discusses goring is true of any other verse that discusses goring, and we would derive from the verse that discusses damages, where the word “man” is written in the verse (Shemot 21, 35): if the ox of a man will shove etc. This would come to exclude a woman from liability, if not for the inclusion of the verse that repeated the word shor seven times to include the ox of a woman as well. Without the special inclusion of the repetition of shor seven times we would say that a woman is excluded from liability for her ox damaging as well as for her ox that kills. Now that we have that inclusion, a woman is liable for her ox that damages as well as for her ox that kills.
This rule that equates women to men as far as all penalties of the Torah is specifically when the passage is said in the masculine term. Where there is no explicit reference to a male we are to assume that the Torah is speaking to women as well, even though the verse is written in the masculine term. That is the lesson of our Gemara.
Tosafot offers an illustration of his explanation that this rule applies when the verse is written in the masculine term:
כי ההיא דריש תמורה (דף ב:) דפריך אמאי איצטריך רבוי לענין תמורה לפי שהפרשה נאמרה בלשון זכר והא השוה הכתוב אשה לאיש
As can be seen from that Gemara at the beginning of Masechet T’muroh (2b),1The Gemara there says that the superfluous word in Vayikra 27, 10,-- וְאִם־הָמֵ֨ר יָמִ֤יר בְּהֵמָה֙ בִּבְהֵמָ֔ה וְהָֽיָה־ה֥וּא וּתְמוּרָת֖וֹ יִֽהְיֶה־קֹּֽדֶשׁ --teaches us that women are also included in this prohibition. where the Gemara asks: why is it necessary to have a specific inclusion to include women in the matter of T’muroh? Since the passage was said in the masculine term, the question was asked: but the Torah equated a woman to a man for all penalties of the Torah?
This is not so when the Torah specifically speaks of a “man”.
However, where “man” is clearly written in the verse, there, we definitely require an inclusion to include women in the mitzvah.
Tosafot offers proof that when the verse specifically mentions a “man” a special inclusion is needed to inform us that the rule applies to females:
As we find in that Gemara in Perek Arba Meesos (Sanhedrin 66a) where the Gemara is discussing the negative commandment prohibiting cursing one’s parents: The verse (Vayikra 24, 15) reads: a man who will curse his father and his mother. The Gemara asks: I would only know that this applies to a man, from where do we learn that it applies to a woman? We see that in this case since “man” is specifically mentioned a special inclusion is needed to teach us that the mitzvah applies to women as well. We cannot make use of the general rule that women are equal to men for all penalties of the Torah.
Based on this understanding, that when the Torah does not specifically mention “man” we utilize the general rule that equates women to men for all penalties of the Torah, we are faced with the following question:
If you ask: later in Perek Shor Shenogach Arbo’oh vaChameeshoh (44b, and Tosafot ד"ה שור האשה) where the Gemara says the word shor is repeated seven times, to include among others the ox of a woman in regard to an ox that killed, the verse is teaching us that there is liability for a woman’s ox as well.
Why is an inclusion needed, but there in that verse the word “man” is not written and we should utilize the general rule that includes women in all mitzvos of the Torah? And even though it is written in that verse “and also his owner will die” that is not a specific mention of “man”,2See Rashi 44b ד"ה שור האשה. See also Tosafot Rabbeinu Peretz. but merely a masculine term, where no special inclusion for women is needed.
Rabbeinu Tam answers this question:
Says Rabbeinu Tam: that the Gemara there 44a expounds3The word דמקשינן – literally - that we compare, appears in brackets in our Tosafot. Elsewhere in Sukoh 28b the word דדרשינן is used as is mentioned on the gloss. that the word יגח is repeated in Shemot 21, 31, twice to apply the word נגיחה" – goring” to the verse that speaks of an ox killing and to apply the word נגיחה" – goring" to the verse that speaks of an ox damaging. It is as if the Torah is telling us that whatever is true of one verse that discusses goring is true of any other verse that discusses goring, and we would derive from the verse that discusses damages, where the word “man” is written in the verse (Shemot 21, 35): if the ox of a man will shove etc. This would come to exclude a woman from liability, if not for the inclusion of the verse that repeated the word shor seven times to include the ox of a woman as well. Without the special inclusion of the repetition of shor seven times we would say that a woman is excluded from liability for her ox damaging as well as for her ox that kills. Now that we have that inclusion, a woman is liable for her ox that damages as well as for her ox that kills.
Ramban
FOR THE ETERNAL YOUR G-D TRIETH YOU. This is to state that the purport of the wonder which came to pass and which G-d showed him in his dream or [as the philosophers say] in his kahin107This is borrowed from the Arabic, kahanah, a term referring to the power residing in man to be able to foretell the future. It is so explained by Shmuel ibn Tibbon in his list of “Foreign words.” was G-d’s will in order to test you in your love of Him. Now I have already explained138Genesis 2:1 (Vol. I, p. 275). that the term “test” is derived from the point of view of the one who is being tested. It states here to know [for the Eternal your G-d trieth you ‘to know’ whether ye do love … meaning] that it became known in fact what exists in potential and is revealed [only] to Him. Thus the commandment of this entire section refers to someone who prophesies to worship the idols. But concerning one who prophesies in the name of G-d to change any of the commandments of the Torah, our Rabbis have interpreted131Sanhedrin 90a. that if he came to [completely] uproot any item from the Torah, such as permitting [the eating of] swine or [permitting] one of the adulterous relationships, according to this judgment shall it be done to him139Exodus 21:31. [i.e., he is liable to death as is stated here in Verse 6]. But if he declares it to be permissible only for some time as a temporary measure such as Elijah did on Mount Carmel [in permitting offerings to G-d outside of the Sanctuary in Jerusalem],140I Kings 18:33-38. The purpose was to vindicate the belief in the true G-d and cause the people to reject the idolatrous worship of Baal. And because Elijah was an acknowledged righteous prophet we were commanded to listen to him (Rambam, Hilchoth Yesodei Hatorah 9:3). we are obligated to listen to him and to do everything that he commands us.
It appears [to me] that if he prophesies in the name of G-d to command a precept that he innovates, as happened concerning reading of the Scroll [of Esther on Purim],141See Ramban above, 4:2. that he is not guilty of a capital offense, only that we are not to obey him, because it is written, These are the commandments,142Leviticus 27:34. [which our Rabbis interpret to mean]:143Torath Kohanim, end of Bechukothai. The reading of the Megillah (Scroll of Esther) on Purim is “a positive commandment by the authority of the Scribes” (Mishneh Torah, Hilchoth Megillah V’Chanukah 1:1). “No prophet is henceforth permitted to declare any new matter therein.” But perhaps, since we do not believe him, he is thus a false prophet and his death is by strangulation.144See “The Commandments,” Vol. II, pp. 25-26.
It appears [to me] that if he prophesies in the name of G-d to command a precept that he innovates, as happened concerning reading of the Scroll [of Esther on Purim],141See Ramban above, 4:2. that he is not guilty of a capital offense, only that we are not to obey him, because it is written, These are the commandments,142Leviticus 27:34. [which our Rabbis interpret to mean]:143Torath Kohanim, end of Bechukothai. The reading of the Megillah (Scroll of Esther) on Purim is “a positive commandment by the authority of the Scribes” (Mishneh Torah, Hilchoth Megillah V’Chanukah 1:1). “No prophet is henceforth permitted to declare any new matter therein.” But perhaps, since we do not believe him, he is thus a false prophet and his death is by strangulation.144See “The Commandments,” Vol. II, pp. 25-26.