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Bava Kama, 83

1) HALACHAH: A PET DOG

QUESTION: The Gemara relates the severity of raising dogs in Eretz Yisrael. The Gemara derives from verses that when there are 22,000 Jews in one place, the Shechinah dwells among them. It could happen that there will be 21,999 Jews, and a woman who is pregnant will be frightened by a barking dog and she will lose her baby. Hence, raising dogs in Eretz Yisrael can cause the Shechinah to depart from the Jewish people.

If a barking dog can cause a woman to miscarry, and cause the Shechinah not to dwell among the Jewish people, then why does the Mishnah (79b) and the Gemara here permit raising a dog if it is tied to a chain? Even when it is tied to a chain, it might cause a pregnant woman to miscarry if it barks at her!

ANSWERS:

(a) It could be that since the pregnant woman knows that the Chachamim permitted raising a dog if it is tied to a chain, she will not be afraid when she hears it barking because she knows that it is tied to a chain.

(b) Another explanation is that the only fear is that a pregnant woman will *see* the dog as well as hear its bark. When she hears its bark but she does not see the dog, there is no fear that she will miscarry. Hence, when the dog is restrained by a chain, even when she sees it she will not be afraid, because she sees that it cannot hurt her.

A practical difference between these two approaches is a place where not all of the people are scrupulous about observing the enactments of the Chachamim, or a place in which Nochrim live. In such a place, when a pregnant woman hears a dog barking, she will be scared even though she cannot see the dog, because she knows that there is a possibility that it is not tied up. According to the first explanation, it will be prohibited to keep a dog even on a chain, since the barking alone will cause the pregnant woman to miscarry. According to the second explanation, it will be permitted to keep a dog when it is tied to a chain, since the only fear is that the woman will *see* the dog as well as hear it, and when she sees the dog on the chain she will not miscarry.

HALACHAH: The YOSEF DA'AS writes that he heard from RAV SHLOMO ZALMAN AUERBACH zt'l that the decree of the Chachamim applies only when the dog is not kept on a chain. When the dog is tied to a chain, there is no fear that a woman will miscarry, for the sound of barking alone will not cause her to miscarry. The Yosef Da'as cites RAV CHAIM KANIEVSKY, shlit'a, who says that we do not have to worry that although the dog is on a chain, the woman might not see the chain and still become frightened.

83b

OPINIONS: The Mishnah says that one who causes bodily damage to someone else must pay five forms of compensation. The first form, Nezek, is assessed by determining the value of the person who was damaged as if he were an Eved being sold on the market. According to the value of what type of Eved is his value determined?

We also find that one must pay the value of a person when his ox (which is a Mu'ad) kills a person and the owner must pay Kofer. According to some opinions (43a), if one's ox kills a person unintentionally, the owner of the ox does not pay Kofer, but he pays the value of the dead person, similar to the way he pays a person's decrease in value if he damages him. In both of these cases -- Kofer and Nezek, we must determine the value of the person by viewing him as if he were an Eved, for a person who is not being sold has no quantifiable value, as Abaye states later (end of 84a). Like which type of Eved do we view the person in order to determine the value of Kofer?

The Gemara also gives this method for determining the value of a person with regard to another Halachah. If a person states, "I will give my value to Hekdesh" ("Dami Alai"), we determine his value by viewing him as if he were an Eved being sold on the market. Here, too, we must clarify the type of Eved to which we compare the person.

(a) RASHI explains that the reason we evaluate him as though he were being sold as an Eved is because the one who damaged him caused him that amount in decrease in value, since, if the person who was damaged wanted, he could sell himself as an Eved Ivri. It seems from Rashi that we determine his value based on that of an Eved Ivri. This is also the view of the NIMUKEI YOSEF and BARTENURA here. TOSFOS in Megilah (23b, DH Shamin) also implies that when a person says "Dami Alai," his value is evaluated as if he were an Eved Ivri.

Rashi's explanation is logically sound, since the damage is being paid for the loss of value incurred by the person who was damaged. The value of an Eved *Kena'ani* has nothing to do with the victim's value, because a Jew cannot be sold as an Eved Kena'ani, but only as an Eved Ivri. The value of an Eved Kena'ani is not the same as the value of an Eved Ivri, because an Eved Kena'ani can be asked to perform menial tasks, and the master does not have to show him respect (such as giving him his only pillow), and he serves the master forever.

The ROSH (8:1) questions this explanation. An Eved Ivri can be sold only for a maximum of six years (or until Yovel, whichever comes first). How, then, can a person's decrease in value be determined based on how much he would cost if sold as an Eved Ivri? That value would only represent the value of six years of his work, while the value of the damage is worth more, since he would be able to sell himself additional times after six years have passed. (The Acharonim add that it is not logical to suggest that according to Rashi, every six years the Mazik must pay an additional payment for the damage, and we must evaluate again how much the Nizak would be worth if sold as an Eved Ivri. It is also not logical to suggest that we multiply the value of the person as an Eved Ivri by the number of periods of six years that we expect him to live, since we cannot know how long he will live. In addition, the value owed for damages is always assessed based on a *single* estimate that takes into account the entire life of the Nizak, in order to be lenient on the Mazik. If we were to evaluate the value of the damage based on multiple sets of six years, then it would be a greater sum than a single estimate for the total number of years.)

Perhaps Rashi means that we evaluate how much a person would pay to buy an Eved Ivri, stipulating that part of the sum will make a Kinyan on the Eved for the first six years, and another part of the sum will renew the Kinyan at the moment that the first Kinyan expires (if he is still alive), and so on, until the end of the life of the Eved. Such a sale is valid according to the RASHBA cited by the RAN in Nedarim (30a), and it would reflect the value of the person as an Eved Ivri for the duration of his entire life. (See CHIDUSHEI ANSHEI SHEM on the Rif here.)

(b) The ROSH (8:1) argues with Rashi and writes that the person is evaluated like an Eved Kena'ani. As we pointed out, the value of an Eved Kena'ani is more than that of an Eved Ivri. Why, then, should we base the value of a Jew according to his value if he were sold as an Eved Kena'ani?

It seems that according to the Rosh, Nezek that is paid to a person is not meant to compensate the person for a material loss that was caused directly as a result of the damage. Rather, it is a compensation for devaluating the person, for making the person a less-valuable entity. Since a free person obviously cannot be attributed a value, we can measure that devaluation only be assessing how much an Eved would be devalued by such damage. (This approach is consistent with the approach of a number of Acharonim who explain that money paid for permanent physical damage is a form of Kofer; see Gemara later on this Daf.)

RABEINU CHANANEL in Sanhedrin (15a) also writes that when a person says "Dami Alai," he is evaluated like an Eved Kena'ani.

The Rishonim and Acharonim provide a number of proofs for the opinion that the Eved mentioned in the Mishnah is an Eved Kena'ani. First, Tosfos in Megilah (23b) points out that when a person says "Dami Alai," we determine his value in the presence of ten men, the same way we determine the value of land, because an Eved is compared to Karka, and we are determining this person's value like that of an Eved. It is only an Eved Kena'ani who is compared to Karka, and not an Eved Ivri. Rashi, on the other hand, might maintain that even an Eved Ivri is also compared to Karka (as we wrote in Insights to Kidushin 28:1).

Second, the HAFLA'AH SHE'B'ERCHIN (Erchin 19b) points out that the RAMBAM (Hilchos Avadim 1:5) writes, based on the TORAS KOHANIM, that an Eved Ivri is not sold in the marketplace. Hence, when our Mishnah says that the person is evaluated like an Eved that is sold in the marketplace, it must be referring to an Eved Kena'ani. However, the Mishnah in the Yerushalmi does not include the word "in the marketplace" ("b'Shuk"). This also seems to be the Girsa of some Rishonim in our Mishnah (see RABEINU GERSHOM in Erchin 19b).

Third, the BACH (CM 420:15) and the NETZIV (in Meromei Sadeh) point out that the Gemara seems to apply the rule of evaluating a person like a slave sold in the marketplace even today (see 84a and 84b), and yet the Halachah of Eved Ivri does not apply nowadays. In addition, how will a person pay Nezek to a *woman* according to Rashi, since a woman (over the age of twelve) cannot be sold as an Amah Ivriyah! In addition, the Gemara (84a) says that we evaluate damage done to a male child in accordance with his price as an Eved, even though a male child (under the age of thirteen) cannot be sold as an Eved Ivri!

We might suggest that in all of these cases, the Gemara does not mean to say that we determine their value literally by the value of an Eved, but by the value of hired workers, since all of these individuals can be hired as workers. However, the Gemara (84a) clearly says that evaluating a child as an Eved would be disgraceful to him, since it would look like he was being sold as a slave. Also, with regard to the payment of Pegam (which is a form of Nezek) given to a woman who was raped, Rashi (84b, DH u'Pegam) quotes the Gemara in Kesuvos that teaches that we determine the woman's value by the value of a Shifchah *Kena'anis* who is being sold in order to marry her to her buyer's Eved Kena'ani.

The Acharonim offer a number of answers to these questions.

1. The Bach suggests that we certainly determine the amount to be paid as Nezek based on the value of an Eved Kena'ani. However, there are times when a person is embarrassed to be placed on the podium in the marketplace to be evaluated as though he is being sold as a slave. Rashi is teaching that in these cases, a man can insist that he should at least be paid his value if he were sold as an Eved Ivri.

2. The YAM SHEL SHLOMO writes that even though the person who was damaged lost only the profit that he could have made as an Eved Ivri, as Rashi writes, nevertheless it is impossible to determine in a single sale what that value would be for the entire life of the person (as the Rosh asks), and what the value of a woman or child would be. Therefore, the best that we can do is determine the value of the person as if he were being sold as an Eved Kena'ani. We will base the payment of the Mazik on that value. Similarly, if a woman or child is damaged, his loss is because he can no longer hire himself out as a hired worker for a high price, and her loss is due to the fact that she will not receive as large of a dowry. However, we determine his or her value based on the price of an Eved Kena'ani or Shifchah Kena'anis.

This also seems to be the opinion of the RABEINU YEHONASAN cited by the Shitah Mekubetzes who explains that the Mishnah is referring to an Eved Kena'ani, even though he explains like Rashi, that the damage prevents the person from being sold for a high price as an Eved Ivri.

According to these explanations, Rashi agrees with the Rosh that the Eved mentioned in the Mishnah refers to Eved Kena'ani.

(c) Rashi might not mean that we evaluate the Nizak as if he were an Eved Ivri who is being sold to a Jew. Rather, we evaluate him as an Eved Ivri being sold to a *Nochri* (see Kidushin 16a), since the Nizak -- had he been destitute -- could have sold himself to a Nochri. Since a Nochri is not required to free an Eved Ivri after six years (see Kidushin 15b and Chart #4 there), and he is not required to treat an Eved Ivri differently than any other Eved, the price of an Eved Ivri sold to a Nochri is close to the price of an Eved Kena'ani. However, his price must be less than that of an Eved Kena'ani, since a Jewish Eved cannot work on Shabbos and Yom Tov, and he must be freed at the arrival of the Yovel year (if the Jewish governing body is dominant and the Nochri is subject to its laws).

This answers all of the questions on Rashi's explanation, because an Eved Ivri can be sold to a Nochri in the marketplace, and even nowadays, and even an adult Jewish woman can be sold in such a manner. (M. Kornfeld)