Injury to a Slave (87A) - part 2 of 2
[Editor’s note: Due to the length of this shiur, it was split into two shiurim. The first half was sent out last week.]
II. One who causes an injury to his own Non-Jewish Slave
At the end of the mishna it says: "He who injures a non-Jewish slave of his own is exempt from all of them." The Posekim disagree whether or not the wording "exempt from all of them" indicates that he is exempt even from lashes. To understand their positions, let us preface by saying that a chovel violates a biblical prohibition ("Do not continue… to flog" [lo yosif]), and the reason that he does not receive lashes is that a person cannot become liable to both lashes and monetary payment, and the Torah explicitly imposed financial liability upon a chovel (Ketubot 32b). Therefore, the Rambam rules (Hilkhot Chovel u-Mazik 5:3): "When one strikes another person with a blow that does not warrant a peruta to be paid in recompense, he should receive lashes, for there is no financial penalty to be exacted for transgression of this negative commandment." And the Rambam adds: "Even if a person strikes a slave belonging to another person with a blow that does not warrant a peruta to be paid in recompense, he should receive lashes, because a servant is obligated to perform certain mitzvot."
The Bach (420, no. 5) and the Gra (420, no. 6) understood that one who strikes his own slave receives lashes even if he struck him with a blow that warrants a peruta to be paid in recompense, because he bears no liability for payment that would exempt him from the lashes. However, the Beit Yosef (420, no. 4) and the Ketzot ha-Choshen (424, no. 1) understood from the words "exempt from all of them" that one who injures his own slave is exempt even from lashes. They base this exemption on three cumulating assumptions:
1. The party who is initially entitled to compensation for injury in the case of chovel bi-eved shel acherim is the slave himself; the master receives the payment only because of the rule that "ma she-kana eved kana rabbo."
2. Even in the case of a master who causes an injury to his own slave, liability for compensation for the injury is created, and the slave is the party who is initially entitled to the payment, only that the master receives it because of the rule that "ma she-kana eved kana rabbo." It turns out then that the master is not exactly "exempt," but rather he is indirectly liable to himself.
3. It suffices that the master is theoretically liable to pay his slave, even if this does not lead to an obligation in actual practice, to define the master's action as the violation of a prohibition for which there is payment, and thus to exempt him from lashes.
This course of reasoning is surprising and brilliant. Nevertheless, there is room to challenge each of its assumptions. As for the third assumption, one can disagree based either on the parameters of the rule that "whatever is acquired by a slave is acquired by his master," or on the parameters of the exemption from lashes in the case of a prohibition for which there is payment. This is not our concern today.
As for the first assumption, we already demonstrated in the first section of this shiur that the Gemara in Gittin 42b teaches that it is incorrect, as it is possible that the master should be entitled to receive the payment for his slave's injury even without the rule that "ma she-kana eved kana rabbo." For this reason, and also based on other passages, the Acharonim tend to reject this assumption. However, there are those who reconciled the position of the Beit Yosef and the Ketzot, and applied it to the payments for tza'ar, boshet and ripuy, regarding which the party initially entitled to the money is indeed the slave, and the Beit Yosef and the Ketzot can base their argument on them. This, however, is difficult.
We, however, will focus in this section of the second assumption of the Beit Yosef and the Ketzot, according to which theoretical liability to make compensation is created even in the case where a master causes an injury to his own slave. Several objections can be raised against this assumption.
One objection was raised by the Beit Yosef himself, and he left it unresolved. As stated, the Beit Yosef understands that one who causes an injury to his own slave is exempt from lashes because we are dealing with a prohibition for which there is payment. Therefore, the Beit Yosef does not infer from the words of the Rambam: "Even if a person strikes a slave belonging to another person with a blow that does not warrant a peruta to be paid in recompense, he should receive lashes," that one who strikes his own slave always receives lashes, as do the Bach and the Gra, but rather that one who strikes his own slave is always exempt, even if he struck him with a blow that does not warrant a peruta to be paid. The Beit Yosef, however, asks about this: "Even if [the slave] is his, why should he not be liable for lashes for a blow that does not warrant a peruta to be paid?"
Another difficulty arises from the law governing ripuy. As we explained above, the Gemara in Gittin 12b states that one who causes an injury to another person's slave is obligated to heal him, and the master does not receive the money unless there was money left over that was not used for the slave's healing, because: "Surely the payment for ripuy goes to the slave, for he needs it for his cure." (We explained above why we do not apply here the rule of "ma she-kana eved kana rabbo.") According to this, and in light of the Beit Yosef's assertion that even a master who causes an injury to his own slave is initially liable for the injury he caused, it follows that a master who causes an injury to his own slave is liable in practice for his healing. Indeed, the Tosafot (87a, s.v. bi-eved) raise the possibility that one who causes an injury to his own slave is liable for ripuy, and even though they reject this possibility, in Gittin (s.v. refu'ato), it remains unchallenged. However, the simple understanding of the mishna and the Rambam supports the Tosafot's conclusion in Bava Kama, that a master who causes an injury to his own slave is exempt even from ripuy. According to the Beit Yosef and the Ketzot, this is difficult.
Owing to these objections, there may be room to disagree with the second assumption of the Beit Yosef and the Ketzot, and establish that while in the case of chovel bi-eved shel acherim, it is a clear case of injury, and for certain matters it is the slave who is initially entitled to compensation as the injured party, the case of a master who causes an injury to his own slave is not at all defined halakhically as a case of injury, and it does not obligate payment for injury, not even on the theoretical level. By law, such an action is not defined as a case of injury, but rather it is the acceptable - even if not desired – conduct of a master disciplining his slave. Therefore, this action does not make the master liable for the slave's healing. So too, it does not dictate lashes for the violation of the prohibition to cause an injury, but for the reason that is the very opposite of that of the Beit Yosef and the Ketzot – not because it is a prohibition that theoretically makes him liable for compensation, but because it does not involve the violation of any prohibition whatsoever.
Support for this approach may be brought from the words of the Rambam in Hilkhot Rotze'ach regarding the law of "a day or two" with respect to a non-Jewish slave, that exempts a master who strikes his slave and the slave does not die immediately:
Whether a person kills his own non-Jewish slave or a slave belonging to someone else, he should be executed. For a servant has accepted the yoke of mitzvot and has been added to "the heritage of God."
What is the difference between killing one's own non-Jewish slave and a slave belonging to someone else? With regard to one's own slave, one has the right to strike him. Thus, if one strikes him with a blow that is sufficient to cause death, and he is on the verge of dying, but survives for 24 hours and dies afterwards, the owner should not be executed, although the slave died because of the blow…
It appears to me that when a person strikes his slave with a knife, a sword, a stone, a fist or the like, and it was assessed that he would die, and he did die, the leniency granted if the slave survives more than 24 hours does not apply. Instead, even if the slave dies a year later, the owner should be executed because of the slave's death. To underscore this point, the verse mentions striking the servant "with a rod." For the Torah only granted the owner permission to beat his slave with a rod, a staff, a strap or the like, but he may not strike him with murderous blows. (2:11-14)
The Rambam clarifies that a master is permitted to strike his slave. The author of Responsa Shevut Ya'akov (I, 181) explains the exemption from lashes granted to one who causes an injury to his slave that does not warrant a peruta to be paid in recompense based on this ruling of the Rambam, and he rejects the views that wish to explain it as dealing exclusively with a blow for the sake of work, for we do not find such a distinction regarding the law of "a day or two," and the Torah decreed, "He shall not be punished, for he is his money." It is possible that the basis for the allowance is the need to maintain discipline for the sake of work, but in practice we do not examine the context, but rather we see the blow delivered by the master as an act of discipline.
Qualifications must, of course, be put forward. First of all, we are certainly not dealing with moral behavior. The Rambam clarifies at length in the last halakha in Hilkhot Avadim the proper attitude toward a non-Jewish slave. But even on the halakhic plane, the allowance is not sweeping. One qualification is spelled out in the aforementioned Rambam: "For the Torah only granted the owner permission to beat his slave with a rod, a staff, a strap or the like, but he may not strike him with murderous blows." When the blow is defined as "murderous" (e.g., where the master attacked his slave with a knife, but the slave was only injured), it is not included in the allowance, and it stands to reason – though I do not find support for this – that it would also obligate the master to pay for his slave's ripuy, and if there is no need for healing, and it does warrant a peruta to be paid in recompense, it would make the master liable for lashes.
A second qualification is the law regarding "a tooth or an eye," which teaches that when the master injures one of his slave's primary organs, the slave goes free. Rashi (Gittin 21b, s.v. lo) explains that this law is strongly connected to the prohibition to cause an injury to a non-Jewish slave. It stands to reason then that just as the permission granted to the master to discipline his slave does not cover "murderous blows," it also does not include an injury to one of the slave's major organs, including his teeth. Here too it stands to reason that an injury caused to one of the slave's primary organs, if it was done in such a way that it does not set the slave free, is defined as an injury, and it would obligate the master to pay for his slave's healing (and were it possible for there to be an organ that is worth less than a peruta, it would also make the master liable for lashes).
To conclude this section I wish to note that, as was cited above, the position of the Bach and the Gra is that one who causes an injury to his own slave is liable for lashes, even if the blow warrants a peruta to be paid in recompense, because it is not a prohibition for which there is payment. According to them it is clear that a case of a master who causes an injury to his own slave is considered a case of injury with respect to the Torah prohibition that it involves. Nevertheless, there is room to consider the possibility that even according to them, we are not dealing with a case of injury with respect to the five payments, which are monetary obligations that are not created when a master disciplines his slave, and therefore there is no liability for ripuy. The matter requires further study.
III. A Non-Jewish slave who causes an injury or damage
In this section we shall deal with another issue that is mentioned in our mishna, which addresses a slave not as a nichval, but as the chovel. "A slave and a woman are awkward to deal with (pegiatan ra’ah), as he who injures them is liable [to pay], whereas if they injure others they are exempt, though they may have to pay at a later date; for if the woman was divorced or the slave emancipated, they would be liable to pay." A slave who causes an injury becomes liable in principle, but in practice as long as he is a slave he has nothing from which to pay, owing to the law that "ma she-kana eved kana rabbo." His fundamental liability is connected to a point that was emphasized at the beginning of the shiur, namely, the duality that characterizes a non-Jewish slave – on the one hand he is the absolute property of his master, while on the other hand he is a human being for all purposes, who can impose liability for injury upon a person who causes him injury, and who can become liable as a chovel.
At this point the question arises, whether alongside the liability that he bears as a person who causes an injury, the monetary ownership also makes his master liable based on the law governing damage caused by a person's property, similar to a person's liability for the damage caused by a person's animal. The answer, as is stated in our mishna, is negative: "pegiatan ra’ah." This issue was the subject of disagreement between the Sadducees and the Pharisees, as discussed in the mishna in tractate Yadayim (4:7):
The Sadducees say: We complain against you, O you Pharisees, in that you say, my ox or ass that has done injury is liable, yet my manservant or maidservant who has done injury is not liable. Now if in the case of my ox or my ass, for which I am not responsible if they do not fulfill mitzvot, yet I am responsible for their damage, in the case of my manservant or maidservant for whom I am responsible to see that they fulfill the mitzvot, how much more so that I should be responsible for their damage? They said to him: No, if you argue about my ox or my ass, which have no misunderstanding, can you deduce anything therefrom concerning my manservant or maidservant who have understanding? For if I were to anger them they would go and burn another person's grain heap and I should be liable to make restitution.
The Sadducees maintain that the master's ownership of his slave is not inferior to his ownership of his animal, but superior to it, and therefore it stands to reason that there should be liability in such a case for the damage caused by one's property. The Pharisees' answer is that there is no room to impose liability, because "they have understanding, and if I were to anger them they would go and burn another person's grain heap and I should be liable to make restitution."
The Rishonim seem to disagree about how to understand the Pharisees' explanation. Rashi (Bava Kama 4a, s.v. lav) writes: "For were you to impose liability upon him, whenever the master would anger him, he would go and burn another person's grain heap in order to make his master liable." He implies that by strict law there would be room to impose liability upon the master, but the Sages ordained not to impose liability out of concern that perhaps the slave will go out and cause damage in order to make his master liable. This opinion aptly illustrates the duality of a non-Jewish slave, for it turns out that before the enactment, when the slave would cause an injury, two parties would become liable for the damage: the slave as the party who caused the injury, and his master based on the law governing damage caused by a person's property. It stands to reason that when we are dealing with injury, the master would not be liable for the four payments, but only for nezek, similar to the law governing the owner of an ox that gored a person.
We must examine what happens if the master paid for the damage caused by his slave, and afterwards the slave was emancipated: can the master collect from the slave the sum that he had paid out as compensation for the damage? Intuitively it would seem that the slave's liability as the party that caused the damage takes precedence over the master's liability as owner of the property that caused damage. But there seems to be no basis for this in the law, and if the master paid what he was obligated to pay according to the law, it is difficult to see by what right he can collect from the slave.
The Rambam's approach is different from that of Rashi:
For a person is not liable for the damage caused by his slaves, even though they are his property. The rationale is that the slaves are mentally competent, and their owner is incapable of guarding them. [Were the owner to be held liable for the damage that his slaves cause,] if he angered a slave, the slave might go out and ignite a grain heap worth a thousand dinar or precipitate other similar damage [to cause his owner to be liable]. (Hilkhot Geneiva 1:9)
The Rambam implies that the scenario in which the slave will cause damage in order to hurt his master is not the reason that underlies this law, but merely an illustration of the fact that we are not dealing here with an ordinary case of property that caused damage. Here there is room to ask – and the matter involves fundamental questions regarding liability for damage caused by one's property – whether the principle that removes the slave from his master's responsibility is the fact that "the owner is incapable of guarding them," or the very fact that "slaves are mentally competent," i.e., that an independent subject cannot be treated like property that causes damage. In any event, for our purposes it can be argued that the Rambam slightly reduces the stated duality, and that he maintains that indeed there is a contradiction between defining the slave as a person who causes injury and the possibility of seeing him as property that causes damage.
IV. A non-Jewish Slave who causes injury to himself
After having dealt with a non-Jewish slave as the victim of an injury (inflicted by others or by his master) and as the cause of an injury, let us now complete the picture with the law governing a slave as both the victim and the cause of an injury. Such a case is discussed in the Tosefta:
A slave that caused an injury to himself goes free and pays his master. (9:8)
All the commentators agree that the Tosefta does not come to teach us the inexplicable novelty that a non-Jewish slave that causes an injury to himself goes free based on the law of "a tooth and an eye." Rather it means to say that when a slave who had caused an injury to himself goes free, he must pay his master.
We seem to have here a perfect display of the duality of a non-Jewish slave. He is both the victim of the injury and also the cause of the injury, and therefore he is liable to compensate his master for the injury, like an ordinary person who causes an injury to a non-Jewish slave. This seems to be the understanding of Rav Yechezkel Abramski (in his commentary, Chazon Yechezkel, on the Tosefta), and therefore he adduces additional proof from here against the view that one who causes an injury to a slave is liable to pay the slave, and that the master receives the money based on the law that "ma she-kana eved kana rabbo." It was clear to the Chazon Yechezkel that we cannot say that the slave is liable to pay himself and the master acquires it from him, because a person's liability to himself is not at all liability. This proves then that the liability is directly to the slave's owner, and in this case the slave becomes liable to his master. According to his analysis, we come to the conclusion – which stands to reason for other reasons as well – that a slave who causes an injury to himself is not liable to pay his master for the tza'ar and boshet, as these are liabilities due initially to the party who suffered the injury. It is only with respect to nezek and shevet that we can say that the master is the primary beneficiary, and therefore the slave is liable to him.
In my opinion, however, the ruling in the Tosefta can be understood differently. We are dealing here with a person who causes an injury to himself. We will deal with this issue later in the chapter, and we will see different opinions regarding the prohibition to do this, and to the extent that there is such a prohibition, what is its nature and what is the relationship to the prohibition to cause an injury to another person. But it seems to me that even according to those who see here a single prohibition, regarding the monetary aspect, it is not the same phenomenon – one who causes an injury to himself is not at all considered as one who causes an injury according to the laws of Choshen Mishpat, for there is no interpersonal damage. Here we must return to a point that was raised at the beginning of the shiur. We noted that in principle we can see a person's body as a monetary asset in his possession, and treat an injury to that body not in terms of the unique laws of injury, but in the context of ordinary damage – damage to an article of monetary value. Therefore, when an animal injures a person, there is only liability for the resulting depreciation, and even according to the Rambam this liability is a chiyyuv mamon. We proposed that in a case of chovel we are dealing with a uniquely severe event of interpersonal injury, and this severity cancels the ordinary law of nezek, and shifts the matter to the unique track of the law of chovel: liability for four new payments is added, and according to the Rambam the liability for nezek turns into a kenas. We rejected the words of the Minchat Chinukh that the liability for nezek in the case of chovel bi-eved shel acherim is a chiyyuv mamon because he damages the master's property, and we argued that this is no different than any other liability for nezek resulting from injury, as there is no foundation for chiyyuv mamon, as the event of injury cancels it. However, in light of what we have said about one who causes an injury to himself, in the case of self-injury there is no injury, as that is defined as an interpersonal event, and therefore there is nothing to remove it from the realm of mazik. When a free person causes an injury to himself, even the regular laws of mazik do not apply, because no damage is caused to another party. But when a slave causes an injury to himself, he damages property belonging to his master, and therefore he enters the category of a person who causes damage without passing over to the unique track of chovel. Therefore, regarding a slave who causes an injury to himself, the Minchat Chinukh is right that the liability is defined as a chiyyuv mamon as in the case of a person who causes damage to another person's property. So too there will be no liability for the four payments; needless to say, nezek and tza'ar, which do not apply here even according to the Chazon Yechezkel, but even shevet (as an independent obligation, separate from nezek) does not apply here, because here we are not dealing with the law of chovel but with the ordinary law of mazik. As I understand the matter, this is the only instance of an intentional injury caused by a person to the body of a person that is governed by the laws of damage to property and not by the laws of chovel. According to the suggested explanation, there is no proof from the Tosefta that in the ordinary case of one who causes an injury to a non-Jewish slave the primary beneficiary is not the slave himself, for the unique nature of the law of injury allows for such an approach, whereas in the case of the Tosefta the law of injury does not apply.
(Translated by David Strauss)
Sources For the next Shiur – Bava Kama 21
INjury to a minor Daughter
Having learned the mishna on p. 87a, we will continue with the Gemara until 88a (top), "she-patz'a be-faneha ve-ifcheta mi-kaspa." We will try to understand the foundation for the father's entitlement, if it exists, to the compensation paid for an injury caused to his minor daughter. See also Tosafot 87b, s.v. amar lei; Rambam, Hilkhot Chovel u-Mazik 4:14; Rif 31a in Alfasi (bottom), "ba'i R. Elazar" until the mishna on 31b; Ramban, Milchamot HaShem (the Ba'al ha-Ma'or does not appear in print, but is partially cited by the Rambam) 31b, "ve-katav od aval" until the end of the page.
 If we do not understand that the slave makes the initial acquisition, and the master acquires it at a second stage, but rather that the master acquires it in the name of the slave. But this is not the forum to expand upon the matter.
 If we understand that the exemption only applies when in practice he is liable to pay. But this is not the forum to expand upon the matter.
 So suggests the Grach al ha-Shas, no. 121, and the Chazon Yechezkel on the Tosefta, Bava Kama, chap. 9. Of course, the assumption is that in order to be exempt from lashes, it suffices that one of the payments, or all of them together, have the value of a peruta. This assumption stands to reason, and so states Rashi explicitly in Ketubot 33a, s.v. ela. The Or Same'ach (Hilkhot Na'ara Betula 1:11), however, understands differently based on the words of Hagahot Oshri in the name of the Or Zaru'a. But his position is difficult, and so too his reliance on the Or Zaru'a (so writes the Afikei Yam, II, no. 39). I wish to add that from the words of the aforementioned Rashi, it is clear that even payment for ripuy suffices to define the injury as a prohibition for which there is payment. If the obligation to pay for ripuy is a chiyyuv mamon there is nothing novel about this. But what if ripuy is fundamentally an obligation to heal? Certainly, "rapo yerape" is not a positive commandment that can define that prohibition as a lav ha-nitak le-asei (prohibition that can be rectified with a positive commandment), and so it is clear that we must resort to the law of a prohibition for which there is payment. There is, however, no difficulty, for we are dealing with an obligation to repair, which even if it is not a chiyyuv mamon, falls into the category of payment, for the purpose of a prohibition for which there is payment. However, it is possible that we must say that if ripuy is necessary, he will be exempt from lashes even if it is not in the value of a peruta (if this is realistically possible), as this is an obligation to do something, and not a chiyyuv mamon.
 See also Penei Yehoshua on our passage, s.v. Tosafot bd"h bi-eved kena'ani.
 For example, where there were no witnesses; see Bava Kama 74b.
 In order to sharpen the matter, I wish to compare the suggested analysis to the analysis brought by Rav Shlomo Fisher in his book, Beit Yishai (no. 88) in the name of the Acharonim. Rav Fisher writes that in the case of one who causes an injury to a non-Jewish slave there are two separate causes of liability: chovel and mazik (he suggests various explanations as to why he does not pay double damage). In the case of a master who causes an injury to his own slave there is no liability based on the law of mazik, as he owns the property, but only liability based on the law of chovel (and it is possible that the slave is the initial beneficiary, and that the master keeps the money because of the law that "ma she-kana eved kana rabbo"). In the case of a slave who causes an injury to himself, the situation is reversed: there is no liability based on the law of chovel, but there is liability based on the law of mazik. According to what I have suggested, on the other hand, we are not dealing with two parallel laws. The bodies of all people, both slaves and free people, have a monetary value, and therefor an animal that causes an injury to a person causes ordinary liability for monetary damage. The law of chovel cancels the ordinary liability for mazik and shifts the liability to the unique track involving four additional payments, a kenas according to the Rambam, etc. Therefore, in the case of one who causes an injury to a slave belonging to another person, there is no law of mazik, but only a law of chovel. Only in the case of a slave who causes an injury to himself, which is not defined as injury, are we left with the basic law – which is based on a foundation that is found in the case of a free man as well – of one who causes damage to property belonging to another person.