הכא נמי תני אדם שמירת גופו עליו here too, teach the mishna: And with regard to man, responsibility for safeguarding his body is incumbent upon him.
מתקיף לה רב מרי ואימא מבעה זה המים כדכתיב (ישעיהו סד, א) כקדוח אש המסים מים תבעה אש מי כתיב מים נבעו תבעה אש כתיב § Rav Mari objects to the Gemara’s initial suggestion that the dispute between Rav and Shmuel with regard to the meaning of Maveh is based on biblical terms with similar etymology. He suggests: But why not say that Maveh, this is the primary category of damage caused by water, as it is written: “As when fire ignites brushwood; fire boils [tiveh] water” (Isaiah 64:1). The terms tiveh and maveh share a common root, and the reference is to water. The Gemara rejects this: Is it written in the verse: Water boils [nivu] from fire, with water, a plural noun in Hebrew, the subject of the intransitive plural verb, nivu? No, “fire boils [tiveh] water” is written, and since tiveh is a transitive singular verb, the subject is fire, which is a singular noun. Therefore, no proof can be adduced from this verse that Maveh refers to an action performed with water.
מתקיף לה רב זביד ואימא מבעה זה האש דכי כתיב תבעה באש הוא דכתיב אי הכי מאי המבעה וההבער וכי תימא פרושי קמפרש אי הכי ארבעה שלשה הוו Rav Zevid objects to the Gemara’s initial suggestion that the dispute between Rav and Shmuel with regard to the meaning of Maveh is based on biblical terms with similar etymology. He suggests: But why not say that Maveh, this is the primary category of Fire, as when the term “tiveh” is written in the verse cited by Rav Mari, it is written with regard to Fire. The Gemara rejects this: If so, what is the meaning when the mishna enumerates the primary categories of damage: The category of Maveh and the category of Fire, indicating that they are two distinct categories? And if you would say that these are not two distinct categories but rather the mishna is explaining the meaning of Maveh, if so, why does the mishna say: There are four primary categories of damage? There are only three.
וכי תימא תנא שור דאית ביה תרתי אי הכי לא זה וזה שיש בהן רוח חיים אש מאי רוח חיים אית ביה ותו מאי כהרי האש And if you would say that Maveh is Fire, and there are four categories in the mishna, as the mishna teaches the primary category of Ox, in which there are two primary categories of damage, Eating and Trampling, the mishna remains difficult. If it is so that Maveh in the mishna is referring to Fire, what is the meaning of that which the mishna states with regard to the common denominator of Maveh and Ox: And the defining characteristics of this category of Ox and that category of Maveh, in which there is a living spirit, are not similar to the defining characteristic of the next category in the mishna, in which there is no living spirit. Accordingly, how can Maveh mean Fire; what living spirit is there in Fire? And furthermore, if Maveh is Fire, what is the meaning of the next phrase in the mishna: They are not similar to the defining characteristic of the category of Fire, in which there is no living spirit. Clearly, Maveh is not Fire.
תני רב אושעיא שלשה עשר אבות נזיקין שומר חנם והשואל נושא שכר והשוכר נזק צער וריפוי שבת ובושת וארבעה דמתני' הא תליסר § Contrary to the mishna, where four primary categories of damage were enumerated, Rabbi Oshaya taught (Tosefta 9:1) that there are thirteen primary categories of damage. The thirteen categories consist of four bailees, five types of indemnity, and the four primary categories listed in the mishna. The four bailees are: The unpaid bailee, who is liable for damage caused by his negligence; and the borrower, who is liable for all damage; the paid bailee, and the renter, who is liable if the object is lost or stolen. The five types of indemnity one is liable to pay for injuring another person are: Damage, i.e., the decrease in the injured party’s value; pain; and medical costs; loss of livelihood; and humiliation that the injured party suffered from the assault. And with the four primary categories enumerated in the mishna, that is a total of thirteen.
ותנא דידן מ"ט לא תני הני בשלמא לשמואל בנזקי ממון קמיירי בנזקי גופו לא קמיירי אלא לרב ליתני תנא אדם וכל מילי דאדם The Gemara asks: And what is the reason the tanna of our mishna does not teach these nine categories and enumerates only four? Granted, according to the opinion of Shmuel, who says that Maveh is Eating, it is with regard to the categories of damage caused by one’s property that the tanna of the mishna speaks. With regard to categories of damage caused by one’s body, the tanna of the mishna does not speak, and the additional categories of Rabbi Oshaya are damage caused by one’s body. But according to the opinion of Rav, who says that Maveh is Man, let the tanna of the mishna teach these nine categories as well. The Gemara answers: According to Rav, the mishna teaches the primary category of Man, and included in that category are all matters of damage that are caused by man, among them the categories added by Rabbi Oshaya.
ולר' אושעיא נמי הא תני ליה אדם תרי גווני אדם תנא אדם דאזיק אדם ותנא אדם דאזיק שור The Gemara asks: And according to Rabbi Oshaya too, doesn’t the mishna teach the primary category of Man? Why then did he enumerate the four bailees and the five types of indemnity? The Gemara answers: In his enumeration, Rabbi Oshaya distinguishes between two types of damage caused by a man: He teaches cases involving a man who injures another person, and he teaches the primary category of Maveh, which involves the cases of a man who damages an ox or damages other property belonging to another person.
אי הכי שור נמי ליתני תרי גווני שור ליתני שור דאזיק שור וליתני שור דאזיק אדם The Gemara asks: If so, with regard to Ox as well, let him teach two categories of Ox. Let him teach the case of an ox that damages an ox or other property belonging to another person, and let him teach the case of an ox that injures a person.
האי מאי בשלמא אדם דאזיק שור נזק הוא דמשלם אדם דאזיק אדם משלם ארבעה דברים אלא שור מה לי שור דאזיק שור מה לי שור דאזיק אדם אידי ואידי נזק הוא דמשלם The Gemara rejects this suggestion: What is this comparison? Granted, in the case of a man who damages another’s ox or other property, he pays merely for the damage; in the case of a man who injures another person, he pays an additional four types of indemnity payments: Pain, medical costs, loss of livelihood, and humiliation. But with regard to damage caused by an ox, what difference is there to me if it is an ox that damages an ox or other property belonging to another person and what difference is there to me if it is an ox that injures a person? In both this case and that case the owner of the ox pays merely for the damage. Therefore, unlike a case where a person causes the damage, there is no reason to distinguish between cases where an ox causes damage based on the victim of that damage.
והא שומר חנם והשואל נושא שכר והשוכר דאדם דאזיק שור הוא וקתני With regard to the assertion that Rabbi Oshaya added only cases involving a man who injures another person, the Gemara asks: But aren’t there the categories of the unpaid bailee and the borrower, the paid bailee and the renter, which are categories that describe a man who damages another’s ox or other property, as the cases referred to by Rabbi Oshaya are those where the bailee fails to return the deposit that he was entrusted to safeguard? And yet Rabbi Oshaya teaches each type of bailee as distinct categories and does not include them under the rubric of Man, one of the four categories enumerated in the mishna.
תני הזיקא דבידים וקתני הזיקא דממילא The Gemara answers that the reason why Rabbi Oshaya enumerates Man separately from the bailees is that he teaches one category, Man, referring to damage that is engendered by direct action, e.g., the five types of indemnity payments, and he teaches the four bailees, referring to damage that occurs on its own, e.g., failure of the four bailees to safeguard the deposit.
תני ר' חייא עשרים וארבעה אבות נזיקין תשלומי כפל ותשלומי ארבעה וחמשה וגנב וגזלן ועדים זוממין The Gemara cites a third listing of primary categories of damage. Rabbi Ḥiyya teaches that there are twenty-four primary categories of damage: Payment of double the principal, paid by a thief who is apprehended and convicted based on the testimony of witnesses and who does not admit his crime; and payment of four or five times the principal, paid by a thief who steals an ox or sheep, respectively, and then slaughters or sells it; and payment of the principal, by a thief who admits his crime; and a robber, who steals openly and by force or threat of violence; and conspiring witnesses who pay the individual against whom they falsely testified with regard to a sum that they conspired to cause him to lose.
והאונס והמפתה ומוציא שם רע והמטמא והמדמע והמנסך והני תליסר הא עשרים וארבעה And the rapist, and the seducer, who seduces an unmarried young woman, who pay a fine of fifty sela; and the defamer, i.e., one who defames his wife by claiming falsely in court that he discovered that she was not a virgin when he consummated the marriage and alleges that she engaged in intercourse with another man while betrothed, who pays a fine of one hundred sela; and one who causes another’s teruma to become ritually impure, rendering it prohibited to partake of that teruma; and one who mixes teruma with another’s non-sacred food, rendering it prohibited for any non-priest to partake of it; and one who pours another’s wine as a libation for idolatry. When one combines the eleven categories enumerated by Rabbi Ḥiyya and these thirteen categories enumerated by Rabbi Oshaya, this totals twenty-four principal categories of damage.
ורבי אושעיא מאי טעמא לא תני הני בממונא קמיירי בקנסא לא קמיירי The Gemara asks: And as for Rabbi Oshaya, what is the reason that he did not teach these eleven additional categories? The Gemara answers: It is with regard to cases where one is liable to pay monetary restitution that Rabbi Oshaya speaks. With regard to cases where one is liable to pay a fine, Rabbi Oshaya does not speak.
גנב וגזלן דממונא הוא ליתני הא קתני ליה שומר חנם והשואל The Gemara asks: What of the cases of a thief and a robber, which are cases where one is liable to pay monetary restitution? Let Rabbi Oshaya also teach those cases and include them in his list. The Gemara answers: Doesn’t he teach those cases, as he enumerates in his list the unpaid bailee and the borrower? An unpaid bailee who takes a false oath that the deposit was stolen, when in fact it remained in his possession, is liable to pay restitution like a thief.
ורבי חייא נמי הא תנא ליה שומר חנם והשואל תני ממונא דאתא לידיה בהיתירא וקתני ממונא דאתא לידיה באיסורא The Gemara asks: And as for Rabbi Ḥiyya too, doesn’t he teach those cases; as he enumerates in his list the unpaid bailee and the borrower? Why does Rabbi Ḥiyya list them separately? The Gemara answers: Rabbi Ḥiyya makes a distinction between different types of theft: He teaches cases of theft with regard to property that came into one’s possession in a permitted manner, e.g., an unpaid bailee who was entrusted with a deposit and later misappropriated it, and he teaches cases of theft with regard to property that came into one’s possession in a prohibited manner, e.g., the actions of a thief and a robber.