L'iluy Nishmas: Shifra bas Harav Moshe
The gemara says that nowadays where we do not have beis din with smicha, we cannot collect k'nas in beis din, but if the damagee(nizuk) grabs from the damager (mazik) the payment that is prescribed by the Torah, he can keep what he grabbed. Rabbeinu Tam (Tosafos) says that the right of the damagee to grab is limited to the item that actually did the damage. His rationale is that if the damagee had the right to grab anything from the damager, he would grab all his possessions and beis din would not be able to take them away since by calculating the true amount of the chatzi nezek, they are in essence judging on kenasos which they have no authority to do. Therefore, we must limit his ability to grab originally to only the item that did the damage. It would seem from Rabbeinu Tam that even if the damage was minimal i.e. $100 and the damagee grabbed the ox that damaged which was worth $1000, beis din cannot do anything to force the damagee to return the difference.
However, Rashi (d.h. lo mafkinan) implies that the beis din will only allow the damagee to grab up until the chatzi nezek that he deserves but not more. Rashi seems to imply that beis din can allow him to grab anything, but they would in fact make an evaluation to make sure that any value beyond what the damagee deserves is returned. The Rama (C.M. 1:5) says that explicitly in the name of the Rosh. Clearly they understand that it only qualifies as evaluating damages when the beis din is involved with the collection, but not if they are merely involved with returning the excess beyond what is deserved. The s'ma (s.k. 18) says that we follow Rabbeinu Tam when it comes to the chatzi nezek of keren, but when it comes to other k'nas where there is no "damaging ox", we follow the opinion of the Rosh.
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