The Law of "A Tooth Or An Eye" And The Law Of "A Day Or Two" In Cases Of Split Ownership (89b-90a)

  • Rav Shmuel Shimoni

 

 

            Our passage continues to discuss the issues that we saw last week, regarding the law that kinyan peirot ke-kinyan ha-guf dami (the right to usufruct is akin to full-fledged ownership of the property) and the enactment of Usha, as it analyzes the Tannaitic dispute regarding the law of "a tooth or an eye" and the law of "a day or two." Let us review the various stages of the passage.

 

I. Hanging the Law on the enactment of Usha

 

Shall we say that the enactment of Usha is the subject of a Tannaitic dispute? For one [Baraita] teaches that melog slaves are to go out free for the sake of a tooth or an eye if assaulted by the wife, but not if assaulted by the husband, whereas another [Baraita] teaches that [they are not to go out free] when assaulted either by the husband or by the wife. Now it was thought that all authorities agree that kinyan peirot lav (is not) ke-kinyan ha-guf dami. Is it not then that they disagree about this: the one who holds that they are to go out free if assaulted by the wife did not accept the enactment of Usha, while the one who held that they are not to go out free when assaulted either by the husband or by the wife accepted the enactment of Usha? No; it is quite certain that the enactment of Usha was unanimously accepted, but the former Baraita was formulated before the passing of the enactment while the other one was formulated after.

 

            Before we get into the details, it seems clear from the passage that the significance of the Usha enactment goes beyond the law that if a woman sold of her melog property and subsequently died, the husband may recover it from the buyers. In our case the woman neither sold of her property nor died, but nevertheless the law has significance: the enactment of Usha strengthened the husband's rights in the property. Rashi formulates the matter as follows: before the enactment, "his lien was weak like any other kinyan peirot, as we maintain that [kinyan peirot] lav ke-kinyan ha-guf dami." But after the enactment, "they strengthened his lien so that it should be like kinyan ha-guf."

 

This brings to mind one of the formulations that we saw last week, that the enactment related to the husband's kinyan peirot, granting him a status that is similar to the one enjoyed according to the authority who maintains that kinyan peirot ke-kinyan ha-guf dami. We will, however, see below (in the context of the next stage of the Gemara), that the Rid had a different understanding of the passage, and that in his view, all that the Usha enactment established is that a woman cannot remove the property from the hands of her husband.

 

            The Gemara cites one Baraita that maintains that the woman is the owner with respect to the law of "a tooth or an eye." It holds that the woman has a kinyan ha-guf, which is not diminished by the husband's kinyan peirot, because kinyan peirot lav ke-kinyan ha-guf dami and the Usha enactment has no force (either because it does not accept it, or because it had not yet been enacted). The second Baraita agrees that the husband is not the owner with respect to the law of "a tooth or an eye," but it maintains that neither is the woman. Rashi explains: "[the slaves] do not go out because of the husband, because their bodies do not actually belong to him; neither do they go out because of the woman, because [the husband's] lien was strengthened to be like a kinyan ha-guf."

 

In the previous shiur, mention was made of the Tosafot in Yevamot (66a, s.v. almana), who say that even according to the one who says that kinyan peirot ke-kinyan ha-guf dami, it is clear that certain laws require full and formal ownership of the property itself, which is not based only on the functional connection to the property. The Tosafot say this regarding a priest's ownership of his slaves and animals with respect to feeding them teruma, and as an example they bring the law of "a tooth or an eye" according to our passage, that even if kinyan peirot ke-kinyan ha-guf dami, or there is the Usha enactment, this does not suffice that the slave should go out free because of a tooth or an eye if he was assaulted by the husband. However, in contrast to teruma, which according to the Tosafot depends solely on the abstract kinyan ha-guf, the law of "a tooth or an eye" is effected by the law that kinyan peirot ke-kinyan ha-guf dami, but this is only to diminish the ownership of the person who actually has a kinyan ha-guf.

 

            The Tosafot in our passage (s.v. Rabbi) explain that the difficulty with relying on kinyan peirot as a substitute for kinyan ha-guf is that regarding the law of "a tooth or an eye," the person who causes the injury cancels the kinyan ha-guf, and this cannot be done when that kinyan ha-guf belongs to a different person. Here we must pay attention to the difference between guf and peirot. Surely according to the one who says that they go out free if assaulted by the wife, she thereby impairs the kinyan peirot of her husband. The Rid in his Tosafot (ad loc.) explains this point:

 

Since she can sell the body of the slave, and since the sale takes effect with respect to the body of the slave, the release of his body also takes effect. And the fruit of the husband is automatically cancelled, because since the release took effect and he is a free man, the husband is forbidden to subjugate him as a slave. This is not like a sale, where one person buys the body, and the other eats the fruit all his life.

 

            That is to say, the woman has the authority to sell her kinyan ha-guf in the slave. This fact in itself does not allow her to cancel her husband's right to the fruit – if she sells the slave to another person, the husband continues to own kinyan peirot. But when the transfer of ownership from the woman is not to some other owner, but to the slave himself, i.e., manumission, and for this purpose injury to a tooth or an eye is considered an act of manumission, this has ramifications for fruit and use, because from the minute that the slave is defined as a free man, it is no longer permitted by Torah law to subjugate him as a slave. In practice, then, it is possible to impair another person's kinyan peirot. Impairing another person's kinyan ha-guf, on the other hand, is problematic, even if the person coming to impair it has rights that are akin to kinyan ha-guf.

 

II. Hanging the law on the law that "consecration, [the prohibition of] leaven, and the manumission of a slave release any of these articles [if mortgaged] from the burden of the lien." 

 

            From here we continue to the next stage in the passage:

 

Or if you like I may say that both the one Baraita and the

other deal with conditions prevailing after the enactment, and also that both accepted the enactment of Usha. But the authority who held that the slaves are to go out free if assaulted by the wife and not by the husband did so on account of a reason underlying a statement of Rava, for Rava said: "The consecration [of cattle to the altar, the prohibition of] leaven [from any use] and the manumission of a slave release any of these articles [if mortgaged] from the burden of the lien" [Editor: For the rest of this shiur we will write only consecration, but will be referring to all three, unless noted otherwise.] Shall we say that this statement of Raba is the subject of a Tannaitic dispute? No; it is possible that all agree with Rava [in general cases], but in this particular case here the Rabbis [might perhaps] have specially strengthened the lien of the husband.

 

            In my opinion, this stage of the Gemara is difficult to understand, and I find it astonishing that the commentators paid so little attention to its difficulties, apart from an exceptional position emerging from the Rid, which seems not to have been accepted by the other Rishonim. The primary difficulty is that however we understand the law that consecration releases from the burden of the lien,[1] the person manumitting the slave must have the authority to do so. Rava's law does not create the authority to manumit, but only deals with its ramifications. Accordingly, if we maintain that in the situation of the Usha enactment the woman's kinyan ha-guf is weakened by the strengthened kinyan peirot enjoyed by the husband, and she is not the owner with respect to the Torah's law of "a tooth or an eye," it is not clear how Rava's law helps her manumit the slave.

 

            Let us examine the way in which the Rid dealt with the passage, in his comments on the previous stage of the passage, which we shall now see in full:

 

"Now it was thought that all authorities agree that kinyan peirot lav ke-kinyan ha-guf dami. Is it not then that they disagree about this: the one did not accept the enactment of Usha, while the other accepted the enactment of Usha?" This means: the one who holds that they are to go out free if assaulted by the wife, but not if assaulted by the husband, did not accept the enactment of Usha. And since kinyan peirot lav ke-kinyan ha-guf dami, they go out free if assaulted by the wife. You might ask: why do they go out free if assaulted by the wife, so that the husband loses his fruit? But surely even according to the one who holds that kinyan peirot lav ke-kinyan ha-guf dami, if the son sold [the property], the buyer has nothing until the father dies, as the son cannot cancel the father's eating of the fruit. Here then how can the woman cancel the fruit of the husband and free the slave immediately? The answer is: since she can sell the body of the slave, and since the sale takes effect with respect to the body of the slave, the release of his body also takes effect. And the fruit of the husband is automatically cancelled, because since the release took effect and he is a free man, the husband is forbidden to subjugate him as a slave. This is not like a sale, regarding which the one buys the body, and the other eats the fruit all his life.

And don't say that the reason that the owner of the fruit loses the slave is because of "consecration… from the burden of the lien." For this reason was only said below when we say that it accepts the enactment of Usha; and the body of the slave is also mortgaged to the husband, and for this reason the woman cannot manumit him. There it is certainly appropriate to say that manumission releases him from the burden of the lien, because his body is not really owned by the husband, but only mortgaged to him, that his wife cannot sell him to others. But he is not absolutely his, so that the husband can sell his body. For this reason, even his manumission releases him. But the fruit that are absolutely the husband's, and he can sell them now, we can't say about the fruit that the manumission releases him. For this reason when we say below: or again both were formulated before the enactment, but they differ as to whether kinyan peirot ke-kinyan ha-guf dami; and for this reason they are not released if assaulted by the woman, because the husband's kinyan peirot prevents the release, as it is akin to kinyan ha-guf – we do not say that the manumission should release him, because that kinyan peirot is absolute for the husband immediately, and the manumission cannot release it, for manumission only releases a lien that is not absolutely his, but that which is absolutely his it cannot release.

 

            The Rid maintains that there are contexts in which Rava's law cannot be used. The question of how a woman can cancel her husband's right to the fruit of her slave still stands, as you cannot say that the manumission releases the lien, because we are not dealing with a lien, but with a right owned by him. Even when the husband's senior status regarding the property is based on the idea that kinyan peirot ke-kinyan ha-guf dami, this is not a lien but a proprietary right. As the Rid formulates it: "something that is absolutely his," and cannot be cancelled by the law of Rava. According to the Rid, Rava's law only deals with a lien. What is a lien? According to his understanding, a lien is a situation in which protection is given to a person's right to receive certain property. When a creditor has a lien on property, this means that the Torah protects his right to collect the debt, in such a way that the debtor cannot cancel that right by selling his property to another person, because the lien will continue to rest on that property and the creditor can collect it from the buyer. In such a situation, consecration can impair the lien, because they succeed in stamping the property with a certain status that has ritual significance, which in practice cancels the creditor's likelihood of deriving any benefit from the property.

 

            Regarding the matter at hand, as I prefaced at the beginning of the shiur, the Rid understands the significance of the Usha enactment differently than does Rashi. In his view, the enactment of Usha does not create a type of " kinyan peirot ke-kinyan ha-guf dami," but rather acts in its primary sense. The enactment of Usha is a type of lien on the property for the husband's inheritance – the husband is the assured heir of the property, by virtue of the fact that the Sages enacted that if the woman sells the property and dies, the husband can recover it from the buyer. If so, the enactment of Usha implies nothing beyond its basic law – it did not strengthen the husband's proprietary rights, nor did it strengthen his kinyan peirot, nor did it grant him already now the deferred ownership. The enactment created a lien, and therefore the argument is raised that the woman cannot impair that lien by manumitting the slave, just as she cannot sell the property to others.

 

The answer to this is the stage in the Gemara where we now find ourselves – manumission is different than a sale, because consecration and manumission release the property from the lien: since the woman owns the slave, she can manumit him, whether with an act of manumission or through the law of "a tooth or an eye," and the release has consequences regarding the slave's personal status that in practice bring about that the husband will not have a slave. However, there is also an opinion that the woman cannot release the slave based on the law of "a tooth or an eye" because of the enactment of Usha, and the Gemara says that according to this opinion, "the Rabbis strengthened the husband's lien." (Further study is needed whether we are still dealing with a lien in the sense described above, or that here we are dealing with a strengthening of the husband's proprietary standing, as understood by Rashi.)

 

            The Rid's position is not free of uncertainties. For example, it is not clear how it was possible to think that the enactment of Usha, which created protection from sale, something that is easy to institute because of the rule that anything declared ownerless by the court is ownerless, would prevent the application of a Torah law, such as a slave's release for a tooth or an eye. Nevertheless the distinction that the Rid makes between a lien and an "absolute" proprietary right is an important distinction that provides a persuasive understanding of the passage.

 

            As stated, Rashi did not accept this explanation, and did not distinguish between relying on the enactment of Usha and relying on the rule that kinyan peirot ke-kinyan ha-guf dami. According to him, it is truly difficult to understand how Rava's law explains the woman's ability to release the slave with a tooth or an eye. If the Usha enactment changed the balance of ownership, so that with respect to the Torah law of a tooth or an eye the woman is no longer the slave's owner, how does Rava's law define her as owner?

 

            Regarding Rashi it seems that we must say that even according to his position the woman was and remains the slave's owner with respect to a tooth or an eye. The husband's ownership, which became strengthened in the framework of the Usha enactment, does not negate her standing as owner, but rather limits her power as owner to manumit the slave, because of the harm done to someone whose ownership of the slave is akin to kinyan ha-guf. That is to say, an incident of "a tooth or an eye" is in the end an act that constitutes a sort of kinyan in the slave, and its force is limited by the harm it causes to another person's ownership. Here there is an additional novelty, that Rava's law can overcome such a stumbling block. That is to say, Rava's law allows for impairment not only to a lien, but also to another person's right of ownership. Since the woman is defined as owner with respect to the law of "a tooth or any eye," and there is basic validity to her act, there is a consequence relating to the slave's personal status that in practice will bring about impairment of the proprietary rights of others, and there is nothing to stop this. To this it should be added, that according to many understandings every lien gives proprietary rights to the creditor, but nevertheless they can be impaired by way of consecration. This offers certain support to the position of Rashi.

 

III. Disagreement regarding whether kinyan peirot ke-kinyan ha-guf dami and the connection to the law of "A day or two"

 

            From here let us move on to the last stage of the Gemara. Here the passage relates to the law of "a day or two." "And if a man smites his slave or his female slave, with a rod, and he dies under his hand, he shall be surely punished. But if he continues [to live] a day or two, he shall not be punished; for he is his money" (Shemot 21:20-21). The Gemara cites four different opinions among the Tannaim regarding the law of "a day or two" in the case where one person is the slave's owner, but another person enjoys the right to use him. Before we see the Gemara in our passage, let us see the four opinions as they appear in the Yerushalmi (Kiddushin 3:1):

 

"With this money I shall acquire your slave after thirty days." There are those who teach: the first [owner] is governed by the law of "a day or two." And there are those who teach: the second is governed by the law of "a day or two." There are those who teach: neither the one nor the other is governed by the law of "a day or two." There are those who teach: both this one and that one are governed by the law of "a day or two." The one who says that the first [owner] is governed by the law of "a day or two" – "and he died under his hand." The one who says that the second [owner] is governed by the law of "a day or two" – "for he is his money." The one who says both the one and the other are governed by the law of "a day or two" – the first because "he died under his hand" [and] the second "for he is his money." The one who says neither this one nor that one is governed by the law of "a day or two" – the first because he is not his money, and the second because he did not die under his hand.

 

            We have before us four opinions that disagree in their understanding of the foundations of the law of "a day or two." The two components in the verses that create the disagreement are: 1) "under his hand" – relates to the fact that in practice the slave is subject to the master's control and the master is likely to smite him. 2) "for he is his master" – emphasizes the master's proprietary right in his slave. According to the simple understanding, all seem to agree that in the aforementioned case the seller remains the owner of the right to use the slave, but ownership has been transferred to the buyer, and this leads to the four opinions. The first focuses on control, the second on ownership, the third maintains that only control that is accompanied by a full proprietary right allows for the law of "a day or two," and the fourth maintains that there are two different tracks: control and ownership.

 

            Our Gemara, however, offers a different and surprising understanding of the disagreement, according to which each of the four opinions expresses a position about the general disagreement whether kinyan peirot ke-kinyan ha-guf dami (see Ramban, Gittin 48a for this matter). All this, it should be remembered, is found in the framework of the attempts to explain the Tannaitic disagreement as to whether a woman frees her melog slaves with "a tooth or an eye":

 

Or again if you like I may say that these Tannaim were unanimous in not accepting the enactment of Usha. But they disagree here about whether kinyan peirot ke-kinyan ha-guf dami. And they disagree about that which is subject to the dispute of earlier Tannaim. For it was taught: "If an owner sells his slave to a man with whom he stipulates that the slave shall still remain to serve him for the next thirty days, Rabbi Meir says that the seller would be subject to the law of 'a day or two,' because the slave was still 'under' him." He maintains that kinyan peirot ke-kinyan ha-guf dami. "Rabbi Yehuda says that the buyer would be subject to the law of 'a day or two,' because the slave was 'his money.'" He maintains that kinyan peirot lav ke-kinyan ha-guf dami. "Rabbi Yosi says: Both of them would be subject to the law of 'a day or two': the seller because the slave was still 'under' him and the buyer because the slave was already 'his money.'" He was in doubt whether kinyan peirot ke-kinyan ha-guf dami, and a doubt in capital charges should always be for the benefit of the accused. "Rabbi Eliezer says: Neither of them would be subject to the law of 'a day or two': the purchaser because the slave is not 'under' him, and the seller because he is not 'his money.'" Rava said: The reason of Rabbi Eliezer is because the verse states: "For he is his money," implying that he has to be "his money" owned by him exclusively. Whose view is followed in the statement made by Ameimar that if a husband and wife sold the melog property, their act is of no effect? Of course the view of Rabbi Eliezer. So too, who was the Tanna who stated that which our Rabbis taught: "One who is half a slave and half a freeman, as well as a slave belonging to two partners, does not go out free for the mutilation of the principal limbs, even those that cannot be restored to him"? Rav Mordechai said to Rav Ashi: Thus was it stated in the name of Rava: This ruling gives the view of Rabbi Eliezer. For did Rabbi Eliezer not say that "his money" implies that which was owned by him exclusively? So also here "his slave" implies one who is owned by him exclusively.

 

            The Gemara explains that Rabbi Meir, who focuses on "under him," does this because of his position in general that kinyan peirot ke-kinyan ha-guf dami, and therefore the party defined as the slave's owner is he who enjoys kinyan peirot over him. The Ra'avad (ad loc.) adds that since Rabbi Meir maintains that kinyan peirot ke-kinyan ha-guf dami, both components in the verses are fulfilled, for the slave is "under him" and he is also "his money," since kinyan peirot ke-kinyan ha-guf dami. As for Rabbi Yehuda, the Gemara understands that his focusing on "his money" reflects a general position that kinyan peirot lav ke-kinyan ha-guf dami, and therefore the focus is on formal ownership. Rabbi Yosi as well does not introduce two tracks for the law of "a day or two," but simply expresses uncertainty about the general law, which finds expression in the explanation of the verse, "a day or two," and the double exemption stems from the rule that a doubt in capital charges should always be for the benefit of the accused.

 

            Even Rabbi Eliezer, who appears to accept a special exposition of the words, "a day or two," which necessitates full and singular ownership, expresses a position that according to our Gemara applies in completely different contexts, e.g., in the case of a husband and wife who sold melog property. This understanding requires additional explanation, but it is clear that it is not a local law regarding "a day or two." Rabbi Eliezer's general position is, as formulated by the Yad Rama in Bava Batra (3, 193), that "wherever the property itself belongs to one person and the fruit to another person, neither has full ownership by himself." It would seem that this can easily be explained based on the assumption that kinyan peirot ke-kinyan ha-guf dami, and therefore the party owning the fruit impairs the standing of the party with the abstract ownership of the property itself, even though he himself does not enjoy true ownership. However, the Ra'avad in our passage teaches differently. From the wording of Rabbi Eliezer, that the seller is not subject to the law of "a day or two" because the slave is not "his money," the Ra'avad concludes that kinyan peirot lav ke-kinyan ha-guf dami, for he maintains that were it akin to kinyan ha-guf that would suffice to define him as "his money" (as was emphasized by the Ra'avad cited above regarding the position of Rabbi Meir). Therefore, the Ra'avad explains that according to Rabbi Eliezer, kinyan peirot lav ke-kinyan ha-guf dami, but nevertheless kinyan peirot impairs the standing of the party who has kinyan ha-guf: "Since we maintain that [kinyan peirot] lav ke-kinyan ha-guf dami, he is the money of the second person, but since he is not 'under' him, he is not exclusively his." It would appear that we are dealing here with a special Scriptural decree regarding the law of "a day or two," that we require "under" him, and "exclusive to him." But since the Gemara bases on this the inability of the husband and wife to sell of her melog property, it is difficult to say this. We are forced then to say that even if we accept the Ra'avad's assertion that classifies Rabbi Eliezer under the approach that kinyan peirot lav ke-kinyan ha-guf dami, we are dealing with a unique approach that in the case of a split, neither one enjoys "total ownership," as stated by the Rama.

 

            The Rambam, who rules in general that kinyan peirot lav ke-kinyan ha-guf dami, rules in accordance with Rabbi Eliezer with respect to the law of "a day or two" (Hilkhot Rotze'ach 2:15), and so too he rules that a melog slave does not go out free for the sake of a tooth or an eye, if he was assaulted either by the wife or by the husband (Hilkhot Avadim 5:16). This seems to be like the position of the Ra'avad, that according to Rabbi Eliezer, kinyan peirot lav ke-kinyan ha-guf dami. However, the Rambam does not rule in accordance with Rabbi Eliezer regarding a husband and wife who sold melog property, and so it is possible that according to the Rambam, we are dealing with specific requirements in the laws of "a tooth or an eye" and "a day or two." The matter requires further study.]

 

            How does the Gemara hang the disagreement regarding "a tooth or an eye" on the various opinions regarding "a day or two?" According to our reading of the Gemara, the two opinions regarding "a tooth or an eye" disagree whether or not kinyan peirot ke-kinyan ha-guf dami. This implies that they disagree about the matter in dispute between Rabbi Meir and Rabbi Yehuda. As for Rabbi Yehuda, it is easy to explain with his help the position that the woman is the owner with respect to a tooth or an eye: kinyan peirot lav ke-kinyan ha-guf dami, and therefore the person with kinyan ha-guf is defined as owner both with respect to "a tooth or an eye" and with respect to "a day or two." The Ra'avad adds another possibility, namely, that it is possible to explain the position that the woman is the owner even based on the position of Rabbi Eliezer, who according to him, as may be recalled, maintains that kinyan peirot lav ke-kinyan ha-guf dami. Kinyan ha-guf suffices for the law of "a tooth or an eye," but regarding the law of "a day or two," it is necessary that the slave be "under him," and this is lacking.

 

            As for the position that a slave who is melog property does not go free for the sake of a tooth or an eye if assaulted by the husband or by the wife, it seems according to our reading that it must accept the view of Rabbi Meir that kinyan peirot ke-kinyan ha-guf dami. Here, however, there is a difficulty, for regarding the law of "a day or two" Rabbi Meir maintains that it is the party with kinyan peirot who is defined as the owner. Therefore, there is a position in Tosafot, s.v. Rabbi Meir, that of R. Yitzchak b. Barukh, which changes the reading and understands that in fact, according to Rabbi Meir, the husband is the slave's owner both with respect to the law of "a tooth or an eye" and with respect to the law of "a day or two." According to this understanding the Gemara hangs the baraita that states that melog slaves do not go out for the sake of a tooth or an eye if assaulted by the husband or by the wife on the position of Rabbi Eliezer, who indeed impairs the ownership of both sides. However, most of the Rishonim accept our reading, and understand that even though according to Rabbi Meir the party who has kinyan ha-guf is the owner with respect to the law of "a day or two," the husband does not send the slave free for "a tooth or an eye." Why so? The Tosafot write:

 

Rabbi Meir says that the seller would be subject to the law of "a day or two." He maintains that kinyan peirot ke-kinyan ha-guf dami. And even though with respect to "a tooth or an eye" the slave does not go out if assaulted by the husband or by the wife, because he does not have the power to release the kinyan ha-guf of the woman. But regarding the law of "a day or two," where the slave is "under" him, and he has the power to force him to do his work, it stands to reason that he is subject to the law of "a day or two," since kinyan peirot ke-kinyan ha-guf dami."

 

            That is to say, kinyan peirot, if it is akin to kinyan ha-guf, bestows a status of owner, but this does not free us from struggling with the fact that "a tooth or an eye" is in large measure an act of releasing the slave by removing him from the hands of all of his owners. As we explained at the beginning of the shiur, here there is a difference between the actual impairment of the kinyan peirot of the husband and the impairment of kinyan ha-guf, even if we maintain that kinyan peirot ke-kinyan ha-guf dami.

 

            A different understanding emerges from the words of the Ra'avad. If I understand what he is saying correctly, his explanation does not distinguish between the law of "a day or two" and the law of "a tooth or an eye," but rather between the case where one sells a slave, but retains him for himself for thirty days, and the case of a husband and a wife. In the case of the husband and wife, the slave is "under the two of them," whereas in the case of the person who sells his slave, he is "under the first owner alone." It is possible that the Ra'avad joins with one of the approaches of Tosafot in Yevamot 36b (which we saw in the previous shiur) that a husband's kinyan peirot in his wife's property is not really a kinyan peirot, but rather a right to eat the fruit, and in his view, even though this suffices to impair the wife's standing as owner, it does not bestow the standing of owner upon the husband, because the slave is still in the category of "under the two of them."

 

            In any event, according to R. Yitzchak b. Barukh, according to the one who says that kinyan peirot ke-kinyan ha-guf dami, the party who has kinyan peirot sends the slave free for a tooth or an eye; and regarding an ordinary kinyan peirot it is possible that the Ra'avad agrees with him. Here consideration must be given to the words of the Tosafot in Yevamot 66a that we mentioned at the beginning of this shiur and in the previous shiur, who argue that certain laws depend on the pure and official kinyan ha-guf, even according to the one who says kinyan peirot ke-kinyan ha-guf dami, and assert that the law of "a tooth or an eye" is one of these laws. It must be examined whether R. Yitzchak b. Barukh and the Ra'avad disagree with the general principle of the Tosafot, or perhaps we are dealing with a localized disagreement regarding the law of "a tooth or an eye."

 

The Acharonim suggest, and this is stated explicitly in the words of the Tosafot Rid on our passage that we will discuss below, that the law of "a tooth or an eye" focuses on the release from the kinyan ha-issur (kinyan governing the personal status of a non-Jewish slave), and not on the kinyan mammon (monetary kinyan). When does this apply? As was already mentioned in earlier shiurim, the Rishonim explain that "there are two kinyanim with respect to a slave: a kinyan mammon for his handiwork, and a kinyan ha-guf that makes him forbidden, similar to the kinyan of marriage. The latter is only cancelled with a bill of manumission, even though the kinyan mammon has been cancelled, e.g., where the owner declared the slave ownerless, or despaired from recovering him" (Ramban, Gittin 38b). From among these two kinyanim, as stated, many understand that the law of "a tooth or an eye" is connected specifically to the kinyan ha-issur (and especially according to the opinion that an injury involving a tooth or an eye completely emancipates the slave, so that he does not need a bill of manumission). If we accept this assumption, we have here a fundamental dispute regarding the principle that kinyan peirot ke-kinyan ha-guf dami, whether according to this the party with the kinyan peirot become the owner with respect to the kinyan ha-issur, that is to say, the person to whom the slave is connected in the realm of Yoreh De'a, and not just with respect to monetary rights. There is no doubt that if this is the position of R. Yitzchak b. Barukh and the Ra'avad, we are dealing with a very novel idea, which greatly strengthens the significance of the position of Rabbi Yochanan and Rabbi Meir that kinyan peirot ke-kinyan ha-guf dami, and it is not clear what room is left for the general approach of the Tosafot in Yevamot 66a.

 

            Let us now add a few words regarding the limitation that Rabbi Eliezer places on the sale of property and the manumission of slaves in situations of split ownership: "A husband and wife who sold the melog property, their act is of no effect… One who is half a slave and half a freeman, as well as a slave belonging to two partners does not go out free for the mutilation of the principal limbs, even those that cannot be restored to him." As a rule, all the Rishonim agree that certainly in a case of ordinary partnership, in which each partner owns 50% of the property, each partner can sell his portion, and that Rabbi Eliezer comes only to exclude the case in which one person has abstract ownership of the property, while another person has rights to use property that are not supported by formal ownership of the property.[2] The greater novelty, of course, lies in the fact that the person who has kinyan peirot cannot sell his rights, because the ordinary understanding is that we are dealing with rights that are fully tradable.

 

The Rishonim disagree about the scope of this limitation. According to the Ra'avad, if the husband and wife sold the property together, the sale is certainly valid, and Rabbi Eliezer comes only to say that the rights of each party prevent the other from executing a sale. But according to Rashi, even if the two sold the property together, the sale is not valid. This is very far-reaching: two people owning the rights to property, and they can't sell it. It stands to reason that the husband can waive his rights to the fruit, and then the wife can sell the property (that is, he cannot sell the property, but he can remove himself from it, something that is not a proprietary action).[3]

 

A tooth or an eye according to Rabbi Eliezer:  The Gemara hangs the following Baraita on the opinion of Rabbi Eliezer: "One who is half a slave and half a freeman, as well as a slave belonging to two partners does not go out free for the mutilation of the principal limbs, even those that cannot be restored to him." The Tosafot (s.v. ish) explain that we are not dealing here with a slave belonging to two people, for Rabbi Eliezer's position is not relevant in the case of ownership of half the property, which is not impaired by the fact that the other half also has an owner. In their view, it is obvious that when the owner of half a slave mutilates one of his principal limbs, that half goes out free. Therefore they understand that the Baraita is dealing with a case similar to the one discussed above, of a split between the kinyan ha-guf and the kinyan peirot.[4] Even in the case of one who is half a slave and half a free man, in the simple sense, they assume that if the owner of the half that is a slave mutilates him, this will complete the slave's manumission. Therefore they understand the case as dealing with a situation discussed previously in our shiurim: one whose bill of manumission has been delayed, i.e., a slave whose owner no longer has any kinyan mammon over him, but as for his personal status he is still the slave of that master until he receives from him his bill of manumission. In such a case it is clear that the master does not have kinyan peirot in the slave, and there is room to ask whether he has a kinyan ha-guf in the monetary sense, or perhaps only a relationship in the laws of Yoreh De'a (this is a broad topic, but this is not the forum to discuss it at length). In any event, it is clear that according to the opinion of the Tosafot regarding Rabbi Eliezer, the kinyan ha-issur does not suffice to set the slave free for the sake of a tooth or an eye.

 

            The Ra'avad disagrees with the Tosafot, and understands that according to Rabbi Eliezer even in the ordinary situation of a slave belonging to two partners, there is no law of a tooth or an eye – since the slave cannot be divided, neither partner wholly owns his half of the slave so that the slave (or half the slave) can be viewed as "his slave." Based on the fact that the Rambam did not specify otherwise (Hilkhot Avadim 5:15), it is difficult to assume that he accepted the position of the Tosafot.

 

            The Tosafot Rid also disagrees with the Tosafot, and broadens the canvas in this context. In his view, the rule according to Rabbi Eliezer is that in a case of partnership in property that cannot be divided, neither party wholly owns property that he can sell to others. However, he maintains that a division of days, which is the practical solution in the case of partnership in a slave (Gittin 41a, Bava Batra 13a), defines a slave as property that can be divided, and is divided in practice – each partner is owner of the days of work assigned to him. However, all this relates to the kinyan mammon, and not the kinyan ha-issur. As for the kinyan ha-issur, we are dealing with property that cannot be divided, as he cannot be split.[5] Therefore, when one of the partners in the slave wishes to sell his portion, he can only sell his half in the kinyan mammon. However, the Rid maintains that there is no problem with this, for the kinyan ha-issur follows the kinyan mammon. The Rid supports this assertion with the fact that when a Jew buys a non-Jewish slave from a non-Jew, the seller only has a kinyan peirot in the slave, but not a kinyan ha-guf or a kinyan ha-issur (for by Torah law, a non-Jew does not have a kinyan ha-guf over a fellow non-Jew). And when the Jew acquires that kinyan peirot, a kinyan ha-guf and a kinyan ha-issur are created. So too, the Rid maintains that one of the two partners can set his portion free, "for what is the difference between transferring him to another person, and transferring him to the slave himself." This already is more difficult, for according to his position, we must say that he releases only the kinyan mammon, and the Halakha is that one who declares his slave ownerless must still give him a bill of manumission, that is to say, cancelling the kinyan mammon does not suffice to cancel the kinyan ha-issur (Gittin 38b). The matter requires further study. In any event, as for a tooth or an eye, the Rid maintains that we are not dealing with a process of releasing the kinyan mammon, but with a Scriptural decree that cancels the kinyan ha-issur, and for this, independent ownership of the kinyan ha-issur is required, and as stated, this is missing in his opinion in a situation of partnership in a non-Jewish slave or in the case of one who is half a slave and half a free man.

 

(Translated by David Strauss)

 

 

Sources For the next ShiurBava Kama 25

THe Mishna on 90A and the Law governing verbal humiliation

 

            In next week's shiur we shall once again deal with the liabilities cast upon a person who causes an injury. We shall learn the mishna on pp. 90a-90b (as for the latter section of the mishna, "It once happened that a certain person uncovered the head of a woman" – we shall deal with it only in another two weeks). Under which categories of injury do the amounts mentioned in the mishna fall? See Rashi (90a, s.v. noten; 92a, s.v. kol elu she-amru; 27b, s.v. harei amru, shelosh esreh); Rosh, chap. 3, no. 2; Rambam, Hilkhot Chovel u-Mazik 3:8. See also 27b, Tosafot, s.v. kenasa.

Regarding the dispute between the first Tanna and Rabbi Akiva, see also the Gemara on p. 91a: "All depends upon the dignity… he meant a leniency. Learn from here." Compare the formulation of the Rambam, 3:11, to Tosafot 27b, s.v. harei.

Regarding the liability for spitting mentioned in the mishna, see also the Gemara on p. 91a: "If he spat so that the spittle reached him… Where the insult was merely in words, there would be exemption from any liability"; Rambam 3:5; Rosh, chap. 8, no. 15: "… that a person take out against his friend." See also Rambam 5:6-8; try to understand the novelty in his position regarding humiliation, and consider how this case answers the limitations regarding verbal humiliation and intention for humiliation.

Following the mishna, there are several important passages that we will not address in the shiur. Anyone who learns them on his own will be rewarded. Fill in the Gemara until the colon on p. 91a: "the hire obtained from plowing forms a part of the general estate of the owner."


[1] This is a weighty topic that requires a separate shiur, and we will not deal with it today.

[2] The Rishonim relate in this context to the fact that the property is fit to be divided and that each partner can take a half for himself, but it seems that the prevalent inclination among the Rishonim is that the same law applies to property that cannot be divided. See, however, Ritva, Bava Batra 50a, who cites an opinion in Tosafot that in the case of a slave belonging to two partners, according to Rabbi Eliezer, one partner cannot sell his share.

[3] See Rashba here who holds like Rashi, and adds that even if the husband and the wife mutilated the slave's eye together, the slave does not go out free. The relationship between these words of the Rashba and his words above, p. 53b, s.v. shor ve-adam, need further examination.

[4] Rabbi Eliezer certainly agrees with the Baraita above that melog slaves do not go out free for the sake of an eye or a tooth if assaulted by either the husband or the wife. The disagreement among the Rishonim that we saw was whether the Gemara chose to hang this Baraita on Rabbi Eliezer or on Rabbi Meir.

[5] Compare with the words of the Tosafot Rid in Bava Batra 13a, where he holds that the inability to divide the property with respect to the kinyan ha-issur is also an inability to divide the property with respect to the kinyan ha-guf, even with respect to certain monetary matters.