BAVA KAMA - 088a – החובל – פרק שמיני – בבא קמא, פח ע”א

(The question concerned only a wound) that lowered her value; but a wound that did not lower her value, he did not ask about.^[1]

דאפחתיה מכספיה - For he has the right to sell her (as a maidservant).

Rabbi Yosi bar Chanina said: The case is where he wounded her in her face and so lowered her value.

One who injures another person's Canaanite slave is liable, etc.^[2]

What is the reason of Rabbi Yehuda?

The verse says (Devarim 25): When men fight together, a man and his brother — one who has brotherhood; this excludes a slave, who has no brotherhood.

יצא עבד שאין לו אחוה - (No brotherhood) with Israel, for he may not enter the congregation.

And the Rabbis: he is his brother in mitzvos.

במצות - Every mitzvah that a woman is obligated in, a slave is obligated in, for it is derived through “lah–lah” from a woman.^[3]

But if so, according to Rabbi Yehuda, the plotting witnesses against a slave should not be executed, since it is written (Devarim 19): And you shall do to him as he plotted to do to his brother!^[4]

זוממי עבד - Witnesses who made him liable to court-imposed death and were found to be zomemin should not be executed; yet we hold that a slave is like a Jew regarding court-imposed death, as we learned in Maseches Makkos (8b): And a Jew receives lashes [and goes into exile] on account of a slave.

Rava said in the name of Rav Sheshes: The verse says (Devarim 19): And you shall eliminate the evil from your midst — in any case.

But if so, according to the Rabbis, a slave should be fit for kingship!^[5]

They answer: And by your reasoning, you should be troubled by a convert, according to everyone!

תיקשי לך גר - Whose birth and conception were in holiness; even according to Rabbi Yehuda he has brotherhood, and yet he is disqualified from kingship, and even from being an ordinary officer, unless his mother is from Israel — in Perek HaCholetz in Yevamos (45b).

Rather, the verse says (Devarim 17): From among your brothers — from the choicest of your brothers.

But if so, according to the Rabbis, a slave should be fit for testimony, since it is written (Devarim 19): And behold, the witness is a false witness; he has testified falsely against his brother!

Ulla said: Regarding testimony you cannot say this, for testimony is derived by a kal vachomer from a woman:^[6]

עדות לא מצית אמרת - For even if we did not derive the disqualification from “your brother,” it would come from a kal vachomer.

If a woman, who is fit to enter the congregation, is disqualified from testimony, then a slave, who is not fit to enter the congregation, is it not logical that he is disqualified from testimony!

פסולה לעדות - For it is written regarding plotting witnesses: And the two men shall stand, and it is taught in Shevuos (30a) that the verse speaks of plotting witnesses — implying men and not women. A minor too we derive from here, for it says “men” and not minors; moreover, it is testimony that cannot be subjected to hazamah, since he is not subject to punishment.

What about a woman — that is because she is not subject to circumcision; will you say the same of a slave, who is subject to circumcision?

A minor will prove it: he is subject to circumcision, and is disqualified from testimony.

What about a minor — that is because he is not obligated in mitzvos; will you say the same of a slave, who is obligated in mitzvos?

A woman will prove it: she is obligated in mitzvos, and is disqualified from testimony.

And the argument comes back around: the feature of this one is not like the feature of that one, and the feature of that one is not like the feature of this one; the common denominator between them is that they are not obligated in all the mitzvos and are disqualified from testifying; so too I will include the slave, who is not obligated in all the mitzvos, and is disqualified from testifying.^[7]

אינן בכל המצות - Only in some, for a woman is obligated in the prohibitions and punishments, and a minor is subject to circumcision.

What about the common denominator between them — that they are not a “man”; will you say the same of a slave, who is a “man”?

שאין איש - And “the two men” does not apply to them.

Rather, derive it from a robber.

מגזלן - Who is fit to enter the congregation and yet is disqualified from testimony, as it is written (Shemos 23): Do not put your hand etc., meaning: do not make a wicked man a witness of violence.

What about a robber — his own deeds brought it upon him; will you say the same of a slave, whose own deeds did not bring it upon him?

Rather, derive it from a robber and from one of these (a woman or a minor).

מגזלן וחד מהנך - And the common denominator between them is that they are not careful in all the mitzvos — this one because of his wickedness, and that one because he was not commanded.

Mar the son of Ravina said: The verse says (Devarim 24): Fathers shall not be put to death because of sons — they shall not be put to death on the word of “fathers” who have no lineage of sons.^[8]

חייס בנים - Lineage of sons.

לא יומתו אבות על בנים - No person shall be put to death on the word of one whose son is not attributed to him and called by his father’s name — and that is a slave.

For if it should enter your mind that it means as we say — fathers shall not be put to death because of sons, through the testimony of sons — let the Merciful One write “fathers shall not be put to death because of their sons”!^[9]

דאי ס"ד - The whole verse comes, as is said in Sanhedrin (27b), to disqualify relatives.

לכתוב על בניהם - Since it changed and wrote “sons” without qualification, learn two things from it.

Why “sons”? Learn from it that they shall not be put to death on the word of “fathers” who have no lineage of sons.

But if so, and sons shall not be put to death because of fathers — here too, they shall not be put to death on the word of “sons” who have no lineage of fathers; then a convert, too, should be disqualified from testimony?

They answer: How can you compare? A convert, though he has no lineage above, has lineage below; this excludes a slave, who has no lineage either above or below.^[10]

גר אין לו חייס דכתיב וזרמת סוסים זרמתם - And even though it is written “Baladan son of Baladan,” that applies while they were gentiles; but once they converted, the sons are not attributed to their father — in Perek HaBa al Yevimto (Yevamos 62a).

For if it should enter your mind that a convert is disqualified from testimony, let the Merciful One write “fathers shall not be put to death because of their sons,” for what we said — they shall not be put to death through the testimony of sons; and let the Merciful One write and sons shall not be put to death because of fathers, from which you would learn two things: one, sons shall not be put to death through the testimony of fathers; and the other, they shall not be put to death on the word of “sons” who have no lineage of fathers.

דאי ס"ד גר נמי פסול - If we expound “because of fathers,” “because of sons” as those who have no lineage of fathers, why should the verse vary in both? Let it write in the first clause “because of their sons” to disqualify relatives, and in the latter clause let it vary and write simply “because of fathers,” and we would learn two things — since it did not write “because of their fathers.”

And the slave would be derived by a kal vachomer from a convert: if a convert, who lacks lineage only above but has lineage below, is disqualified from testimony, then a slave, who has no lineage either above or below, is it not logical that he is disqualified from testimony!

Rather, since the Merciful One wrote fathers shall not be put to death because of sons, which implies they shall not be put to death on the word of “fathers” who have no lineage of sons, learn from it that it is a slave, who has no lineage above or below, who is disqualified from testimony; but a convert, since he has lineage below, is fit for testimony.

אלא מדכתב רחמנא על בנים - To disqualify a slave; learn from it that a convert is fit, for there is no longer a kal vachomer.

יש לו חייס למטה - His son is called by his name.

And if you will say: Let the Merciful One write “and sons shall not be put to death because of their fathers”; why do I need that the Merciful One wrote and sons shall not be put to death because of fathers, implying they shall not be put to death on the word of “sons” who have no lineage of fathers?

Since it wrote fathers shall not be put to death because of sons, it also wrote and sons shall not be put to death because of fathers.

A deaf-mute, an insane person and a minor — meeting them is bad.^[11]

The mother of Rav Shmuel bar Abba was from Hagronia; she was married to Rabbi Abba. She wrote over her property to Rav Shmuel bar Abba, her son;

כתבתינהו לנכסי מלוג^[12] - After she married Rabbi Abba.

after she died…

בתר דשכיבא - Rav Shmuel went, etc.

יצא עבד שאין לו אחוה - Explanation: his offspring are not called “brothers,” which is not so with a convert, regarding his offspring; so the Kuntres (Rashi) wishes to explain.

זוממי עבד לא יהרוגו - And since they are not executed, the slave too would not be executed (on their testimony), for it would be testimony that cannot be subjected to hazamah.

דכתיב כאשר זמם לעשות לאחיו - It is puzzling: Rabbi Yehuda should be troubled by interest, onaah (overcharging) and kidnapping, for in all of them “his brother” is written; and regarding charity too it is written your brother, the poor one. However, it is somewhat implied in the first perek of Gittin (12a) that there is not so great an obligation to give charity to a slave, for it says that Rabban Shimon ben Gamliel holds that a slave can say to his master in years of famine, “Either feed me or free me,” so that people will see me and have mercy on me. And for kidnapping too one is not liable over a slave, even according to the Rabbis, for “of the children of Israel” is written; and in Perek HaNechnakin (Sanhedrin 86a) the dispute of Rabbi Yehuda and the Rabbis here is brought. And as for interest and onaah, a slave has no acquisition apart from his master.

יהא עבד כשר לעדות - It is puzzling: everywhere we derive the gezeirah shavah “lah–lah” from a woman! And if you will say that “brothers” comes and includes a slave and takes him out of the gezeirah shavah — if so, he should also be taken out of the kal vachomer that is stated! One can answer: when we derive “lah–lah” from a woman, that is to be stringent with the slave, to make him like a Jew at least in the mitzvos a woman is obligated in; but to lessen him from a man and disqualify him from testimony like a woman we would not learn, for by law he is fit for testimony, as it is written And the two men shall stand, and this one is a man. And a gentile, though he is a man, nevertheless is not “his brother”; but a slave, who is a man and “his brother” in mitzvos, should be fit. [a] And Rashi explained in the first perek of Gittin (11a), regarding documents drawn up in gentile courts,^[13] that they are fit for testimony by Torah law; but our sugya does not bear this out.

שכן אינה במילה - Even though (a woman) has no part in circumcision, it is a valid refutation. Some explain that she is not commanded to circumcise her son — but that is not so, for if so, what does it mean “a minor will prove it”?

אלא תיתי מגזלן ומחד מהנך - One cannot ask: let us derive that a mamzer, a petzua daka and a kerus shafchah, who are disqualified from the congregation, are disqualified from testimony, from a robber and one of these — for (one can refute): what about the common denominator between them, that they are not careful in all the mitzvos, this one because of his wickedness and this one because he is not commanded.

ועבד נפקא לן מק"ו - It seems he said it for added thoroughness, meaning: even if you were to say it is not derived from the verse itself, nevertheless it comes by a kal vachomer.

Notes

1. 1. This continues the discussion on 87b of one who wounds his own minor daughter. A father may sell his minor daughter as a Hebrew maidservant, so an injury that lowers her market value is a loss to him; the question concerned only a wound of this kind.
2. 2. The Mishnah (87a): one who injures another person’s Canaanite slave is liable for all the payments; Rabbi Yehuda says slaves have no payment for embarrassment. The Gemara now seeks the source of Rabbi Yehuda’s view.
3. 3. Lah–lah: a gezeirah shavah, a link drawn between two verses that share a word. “Lah” (to her) is said of a freed maidservant (Vayikra 19:20) and of a woman (Devarim 24:1); from it we learn that a Canaanite slave is bound by the mitzvos a woman is bound by.
4. 4. Eidim zomemin: witnesses proven false by others who testify that they were elsewhere at the time. They receive the punishment they plotted to bring on the accused (“as he plotted to do to his brother”). If “his brother” excludes a slave, those who plotted against a slave would go free.
5. 5. A king must be appointed “from among your brothers” (Devarim 17:15). If, per the Rabbis, a slave counts as “a brother” through his mitzvos, he should be eligible to be king.
6. 6. Kal vachomer: an argument from a lenient case to a stricter one. A woman, who may marry into the congregation, is disqualified as a witness; all the more so a slave, who may not.
7. 7. Ha-tzad ha-shaveh: when a law is derived from two sources, each with its own feature that could refute the derivation, one draws on the feature they share. A woman and a minor are both not bound by all the mitzvos, and both are disqualified; the slave shares that feature.
8. 8. The plain sense of the verse is that fathers are not executed for their sons’ sins. Mar the son of Ravina reads “al” as “on the word of”: no one is executed on the testimony of “fathers” whose children are not legally counted as theirs — that is, a slave.
9. 9. In Sanhedrin 27b this verse is expounded to disqualify relatives as witnesses: fathers are not executed on the testimony of their sons. For that alone, “their sons” would have sufficed; the plain “sons” leaves room for a further teaching.
10. 10. A convert is considered like a newborn and has no legal father (“above”), but his children born after his conversion are attributed to him (“below”). A slave has neither.
11. 11. The Mishnah (87a): meeting a deaf-mute, an insane person or a minor is bad — one who injures them is liable, while they who injure others are exempt.
12. 12. Nichsei melog: a wife’s property whose principal remains hers while her husband takes its produce; when she dies, the husband inherits it. That is why writing it over to her son mattered.
13. 13. Arkaos: gentile courts. Documents drawn up in them are valid, as the Mishnah in Gittin (10b) teaches; Tosfos notes Rashi there holds such documents valid by Torah law.