לזכות רבי אברהם יצחק בן אסתר
ורבי יוסף עזרא בן אסתר
וכל משפחותיהם
Continuing where we left off....
To explain the Rashba, Rav Baruch Ber [Birkas Shmuel 2-3 I believe] answered similarly to what the Chasam Sofer said. Rav Baruch Ber was from Lithuania while the Chasam Sofer was from Hungary. But Hungarians and Lithuanians are allowed to agree. My wife's family is originally from Russia [like 100 years ago] while mine is from the Hungary [on one side] and Poland [on the other] areas, yet at times, we even agree on things. He said that the issue is whether קרן מחוברת is included in the איסור of ולא ישמרנו בעליו or not. That is why this is an "איסור" question and not a "ממון" one.
This, however, raises a few difficulties, one of which is [as we mentioned already] that the Rashba never said that this is a איסור question, just that we are מחמיר as if it were.
Many many sefarim deal with this Rashba and attempt to explain him.
Rav Nosson Geshtetner [נתן פריו סוגיות ח"א סי' י"ח] answered at some length that according to the opinion [15a] that paying half damages is ממון [and not קנס], the real obligation is to pay the entire sum of the damages, just Hashem went easy on him. That being the case, when we are in doubt [like in our gemara's case] we start with the presumption that he must pay the whole thing and just wonder if he is lucky enough to receive an exemption. That spells being מחמיר. In a usual case of ספק ממון, our base assumption ["base assumption" is a הוה אמינא in a Beis Medrash - get it?] is that he need not pay, so מספק we can't obligate. But here, our starting point is that he must pay the whole thing and our doubt is whether we can let him off. That explains why we obligate him מספק as we stick with his חזקת חיוב and he must pay.
Rebbe Abba Berman [שיעורי עיון התלמוד ב"ק שיעור ח] explained the Rashba to mean that in normal cases of ספק ממון the מחייב, what obligates him to pay, is the ממון, the monetary obligation. So if we have a doubt as to the מחייב we can't make him pay. ספק ממונא לקולא. But here, the מחייב is נזיקין and thus there is no doubt about the עצם מחייב. We KNOW that his ox damaged and that he must pay, we just have a doubt as to how much he owes. In such an instance we go לחומרא.
[According to both answers, the Rashba holds that, strictly speaking, it is a ממון issue and not an איסור issue, as he implies with his choice of words].
SO MUCH MORE TO SAY!!!!!:-):-) I hope we can say it.
