QUESTION: The Gemara cites a dispute about whether the payment that Edim Zomemim are required to pay when they are found guilty is a payment of "Mamon" or a payment of "Kenas." The Rabanan maintain that it is Mamon. Rebbi Akiva maintains that it is Kenas.

The law is that Edim Zomemim are punished even though they did not actually cause damage to the defendant. Accordingly, they certainly are paying for more than the damage they caused. Why, then, should the payment of Edim Zomemim be considered Mamon and not Kenas?

It is interesting to note that the Gemara in Makos (2b) asks only what the logic is for the opinion of Rebbi Akiva, who says that the payment of Edim Zomemim is Kenas, while it considers the logic for the opinion of the Rabanan to be self-evident. What, though, is their logic for considering the payment of Edim Zomemim to be Mamon, if no actual damage was done?

(a) The RASHBA, citing TOSFOS, explains that the Gemara maintains that Edim Zomemim are obligated to pay even if they did cause a loss to the defendant. In such a case, the Rashba points out, it is clear why the punishment of Edim Zomemim is considered Mamon. The PNEI YEHOSHUA (end of 4b) explains that this is also the intention of TOSFOS (DH v'Edim Zomemim). (The TOSFOS HA'ROSH, however, explains the intention of Tosfos differently.)

What, though, is the status of the payment of Edim Zomemim when they were not successful in making the defendant pay? The Rashba explains that the Rabanan either agree that in such a case the payment of Edim Zomemim is Kenas, or they gave all of the payments of Edim Zomemim a status of Mamon, because in some cases the payment is indeed equivalent to the damage that was actually caused.

(b) The RASHBA himself answers that the payment of Edim Zomemim is considered Mamon since they attempted to make the defendant lose money.

What does this mean? Since they did not succeed in making him lose money, why should their punishment be considered Mamon?

Perhaps the Rashba means that the punishment of Edim Zomemim is that they must lose exactly what they wanted the defendant to lose. Since the defendant would have lost Mamon, money, therefore the Edim Zomemim must also be punished with the loss of Mamon. (Even if they tried to obligate the defendant to pay a Kenas, his obligation turns into one of Mamon and not Kenas since -- at the moment they secured the verdict (Gemar Din) -- the defendant became obligated to pay money.)

This is why the Rabanan assume that the payment of Edim Zomemim is Mamon.

(c) The NETZIV points out that RASHI seems to address this question as well in his lengthy explanation (DH Edim Zomemim). However, it is not clear how Rashi answers this question.

Perhaps Rashi's point is that the Mishnah presents a clear definition of "Kenas" -- a Kenas is any payment that is "more than the value of the damages" (or less than the worth of the damages, according to the opinion that Chatzi Nezek is a Kenas, 15b). Similarly, any set amount is considered a Kenas. The logic for this is that a Kenas is intended as a deterrent to prevent a person from doing the act, and it is not intended to match the crime. Therefore, the amount of the Kenas should not depend on the value of the damage that was done. Rather, it should be either an established sum regardless of the damage, or a set multiple of the damage (such as double the damage, or four or five times the value of the damage).

In the case of Edim Zomemim, however, the amount that the Edim Zomemim must pay is determined by the value of the damage that they attempted to cause. This is not consistent with any of the descriptions of Kenas, and therefore it must be considered Mamon.

Why, though, does the Torah obligate Edim Zomemim to pay for damages which they did not do? This obligation is the Torah's Chidush of Edim Zomemim. Since the Edim caused a Gemar Din, and they would have caused a loss of money had they not been caught at the last moment, they are considered as though they already caused the loss of money. As a result, the punishment of Edim Zomemim is Mamon.

QUESTIONS: Rava teaches that all of the Avos Nezikin mentioned in the Mishnah, except for Keren, can be derived through a "Tzad ha'Shaveh" from Bor together with any one of the other Nezikin. From Keren together with Bor, all of the Nezikin can be derived. RASHI explains exactly how Shen, Regel, Esh, and Adam are derived through a Tzad ha'Shaveh when one of the other Nezikin is combined with Bor.

There are a number of conspicuous omissions from Rashi's lengthy explanation.

When Rashi shows how the Nezikin are derived from Keren and Bor, he explains how Shen, Regel, and Esh are derived, but he does not address Adam. (RASHASH, LECHEM ABIRIM)

Moreover, although Rashi explains how a Tzad ha'Shaveh can be made from Bor and Keren, from Bor and Shen, from Bor and Regel, and from Bor and Esh, Rashi does not explain how the Tzad ha'Shaveh can be made from Bor and Adam. Why does he omit this?

ANSWER: TOSFOS (DH Ki Shadis) asks how a Tzad ha'Shaveh can be made from Bor and Adam. None of the Nezikin should be able to be derived from Bor and Adam because of the Pircha that Bor and Adam are "Ma'asav Garmu Lo." (Bor is considered "Ma'asav Garmu Lo" because the damage caused by the Bor is considered a direct result of the owner's actions, as the Gemara on 6a states. Damage caused by Adam ha'Mazik obviously is a direct result of the Adam's actions). Although Tosfos answers this question, Rashi does not seem to accept his answer, and therefore he explains that the Sugya here does not relate at all to Adam. Rather, Rava refers only to the Nezikin mentioned in the Mishnah, and he apparently follows the view of Shmuel who asserts that Adam is not included in the Mishnah. Therefore, Rashi mentions Adam only when he can easily insert it, by including it in a single word (such as by saying that "Adam, too," is derived from the Tzad ha'Shaveh of Bor together with Shen or Regel). Rashi does this in order to explain why the Gemara finds it necessary to point out why Adam was written in the verse (to teach the four payments for damage that he incurs -- Tza'ar, Ripuy, Sheves, and Boshes), implying that Adam could have been learned from a Tzad ha'Shaveh (and was written explicitly only to teach the four payments). However, when he explains how the Nezikin are derived from Bor and Keren, he deals with each one at length, and therefore he does not address Adam. Also, when he explains the Tzad ha'Shaveh between Bor and each of the Nezikin, he discusses each of them at length, and, therefore, he does not discuss the Tzad ha'Shaveh between Adam and Bor.

This is also evident from Rashi's words later (DH Liftor Bo), where he explains that one is exempt from damage done by his Esh to items that were hidden ("Tamun"), which is not true of "Shor, Bor, and Mav'eh." Rashi addresses only the Nezikin of the Mishnah and he does not mention Adam, and he even refers to Shen as "Mav'eh," since that is the word which the Mishnah uses.

This is also why Rashi adds a special comment (on the words, "Adam, l'Chayvo b'Arba'ah Devarim") and says, "Adam -- this is why the Torah wrote it." Rashi's words seem unnecessary. In fact, he adds no such comment to the Gemara's earlier discussion of Keren, Shen, Regel, and Bor!

According to the above explanation, however, Rashi's intention is clear. The Gemara should not have discussed Adam, since it is not one of the Nezikin mentioned in the Mishnah. Rashi therefore must point out that the Gemara nevertheless must give a reason to explain why Adam is written in the verse, since it can be derived from a Tzad ha'Shaveh, like the other Nezikin that are listed in the Mishnah.

If Rava is discussing only the Nezikin that are included in the Mishnah according to the opinion of Shmuel, then why does he discuss Keren? In the Gemara earlier (4a), Rava himself says that Keren is not included in the Mishnah, but rather the end of the Mishnah (9b) alludes to it (see Rashi there). If Rava here is addressing even the Avos Nezikin mentioned in later Mishnayos, then he should address Adam as well, since Adam is mentioned in the Mishnah later (15b)!

Apparently, Rashi understands that Rava here follows Rav Yehudah's interpretation (3b) of the Mishnah. Rav Yehudah explains that according to Shmuel, "Shor" refers to Keren, and "Mav'eh" refers to Shen. Therefore, Keren is included in the Mishnah. (See PNEI YEHOSHUA.)

This, however, creates two other problems. First, Rava himself rejects Rav Yehudah's explanation because, according to Rav Yehudah, the Mishnah omits Regel for no reason. Second, why does Rashi address the Mazik of Regel any more than the Mazik of Adam, if neither of them is discussed in the Mishnah?

The answer to these questions may be found in the Yerushalmi. According to the Yerushalmi (cited by the Rashba on 2b), the third Mazik in the Mishnah is learned from the verse, "Ki Yav'er Ish Sadeh" (Shemos 22:4). What hint is there in that verse to the word, "Mav'eh"? It is clear that the proper Girsa in the Yerushalmi is that of the RAMBAM (Minyan ha'Mitzvos, beginning of Nizkei Mamon), whose rendition of the Mishnah reads "Mav'er" instead of "Mav'eh." The word "Mav'er" refers to both Shen and Regel, which are mentioned in the verse, "Ki Yav'er Ish." This is clearly not the Girsa of the Gemara here (as is evident from the lengthy discussion on 3b about what "Mav'eh" means). Perhaps Rava here explains the Mishnah according to the Girsa of "Mav'er." Since "Mav'er" can refer to either Shen or Regel (or to both), which are mentioned in the verse that starts "Ki Yav'er...," there is no reason to reject Rav Yehudah's explanation of the Mishnah. "Shor" refers to Keren, and "Mav'er" refers to both the Nezikin of Shor and Regel. (Even according to the Girsa of our text, "Mav'eh" might be equivalent to "Mav'er," since the guttural letters "Reish" and "Heh" are interchangeable.)

If this approach is correct, it may provide a new understanding to another comment of Rashi. Rashi (beginning of 5b) writes that had the Torah written only Shor and Mav'eh, and one would have asserted that Keren cannot be derived from that Tzad ha'Shaveh because Keren is "Kavanaso l'Hazik," one could have countered that "Shen Tochi'ach." Similarly, if one would have asserted that Shen cannot be derived from that Tzad ha'Shaveh because Shen is "Hana'ah l'Hezeko," one could have countered that "Keren Yochi'ach." Rashi there translates "Shor" as Keren, and "Mav'eh" as Shen. This follows neither the opinion of Rav (who says that "Shor" is Keren, Shen, and Regel) nor the opinion of Shmuel (who says that "Shor" is Regel, according to Rava on 4a, and Rashi here is explaining Rava's statement here!). (MAHARAM SHIF, NETZIV, RASHASH)

According to the above explanation, Rashi's words are clear. In the Sugya here, Rava is clearly explaining that "Shor" in the Mishnah is Keren, and "Mav'eh" in the Mishnah is Shen (and perhaps Regel as well).

This also explains the words of Rashi earlier (2a, DH ha'Shor v'ha'Bor), where he writes that the order of Nezikin in the Mishnah follows the order in which they are written in the Torah. However, as Tosfos (DH ha'Shor) points out, according to Rav and according to Rava's interpretation of Shmuel, the Nezikin listed in the Mishnah do not follow the order of the verses at all. Based on the above explanation, it is clear that Rashi follows the opinion of Rav Yehudah, since that is the opinion which Rava himself eventually favors, and according to that opinion the Nezikin are indeed listed in exactly the same order as they appear in the verses in the Torah. (M. Kornfeld)