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Bava Kama, 90

1) KILLING AN "EVED" THAT ONE DOES NOT FULLY OWN

QUESTION: The Beraisa teaches that if a person sells an Eved and stipulates that "the sale is *on condition* that the Eved continues to serve me for the next thirty days," the Tana'im argue whether the first owner has the Halachah of "Yom O Yomayim." The Halachah of "Yom O Yomayim" teaches that when an owner of an Eved hits his Eved and his Eved dies only after a twenty-four hour period, the owner is exempt from the punishment of Misah (which he would receive had he killed a fellow Jew in such a manner). Perhaps the Halachah of "Yom O Yomayim" applies to him, since he has the Kinyan Peros of the Eved. On the other hand, perhaps it applies only to the purchaser, because he has the Kinyan ha'Guf of the Eved.

If the sale was contingent on the Eved serving the first owner for thirty days, then if the purchaser kills the slave within that time, he has not kept his part of the deal, and the sale will be annulled since the Eved did not serve the first owner for thirty days! How, then, can the second owner be exempt from Misah because of the Halachah of "Yom O Yomayim?" He did not own the Eved at all!

In addition, if the Eved is serving the first owner only because of a stipulation made in the sale, then why do we consider the first owner to have *any* Kinyan, even a Kinyan Peros, in the Eved? He does not own the Eved at all, and the Eved is serving him only to fulfill the condition that was stipulated in the sale! (OR SAME'ACH, Hilchos Rotze'ach 2:15; see also KEHILOS YAKOV 1:33.)

ANSWER: The words "Al Menas" apparently are not to be understood literally as referring to an actual Tenai, condition. Rather, when he sold his Eved, the first owner sold him completely but left for himself thirty days of use of his Eved (this is called a "Shiyur" and not a "Tenai"). Indeed, the Gemara in Bava Basra (50a) which quotes this Sugya does not include the words "Al Menas," and nor does the RAMBAM.

QUESTION: Ameimar teaches that neither a husband nor his wife may sell their respective portions of the wife's Nichsei Milug. The Gemara explains that Ameimar holds like Rebbi Eliezer, who says that neither the husband nor the wife are exempted by the Halachah of "Yom O Yomayim" from the punishment of Misah for killing an Eved (of Nichsei Milug), since neither of them own the Eved fully. Similarly, Rebbi Eliezer rules that an Eved who is owned by two partners (or who is half-free and half-Eved) does not go free through the Halachah of "Shen v'Ayin" when one of the owners knocks out his eye or tooth, because the Halachah of "Shen v'Ayin" applies only to an Eved which belongs completely to the owner.

RASHI (DH Lo Asu) writes that Ameimar does not mean to say that each partner cannot sell his portion in a jointly-owned field. Each partner owns half of the entire field. Since the half that he owns is fully owned by him, he can sell it. The only time a partner cannot sell his share is when one partner owns the Peros and one owns the Guf, since neither has a full Kinyan on his portion.

How can this be reconciled with the fact that Rebbi Eliezer, who is the source of Ameimar's opinion, teaches that an Eved owned by two partners does not go free with "Shen v'Ayin" when either of the partners knocks out the Shen or Ayin? Rebbi Eliezer seems to be discussing a case of a normal partnership, and yet he still asserts that neither partner is considered a full owner with regard to causing the Eved to go free. (TOSFOS DH Ish v'Ishah)

ANSWERS:

(a) TOSFOS answers that Rebbi Eliezer is not referring to a case of a normal partnership. Rather, when he says that neither partner can free the Eved through "Shen v'Ayin," he is referring to a partnership where one owns the Guf and one owns the Peros. (Tosfos explains the case of a half-free Eved in the same manner.)

(b) The RA'AVAD explains that Rebbi Eliezer is discussing a case of a normal partnership. Nevertheless, freeing an Eved differs from selling property, since an Eved is not "Ra'uy l'Chalukah," he cannot be divided into two parts in the way that land can be divided. Because of this, neither owner is considered the full owner of his share of the Eved.

The TOSFOS RID explains this further. He says that there are two parts to the Kinyan of an Eved: the Kinyan Mamon and the Kinyan ha'Guf. The Kinyan Mamon is indeed fit to be divided (since the Eved can serve one master one day, and the other master the next day). It is the Kinyan Isur -- which gives the Eved the Halachos of an Eved -- which cannot be divided. He explains that when one sells the Kinyan Mamon of an Eved, the Kinyan Isur is dragged along. Therefore, a person can sell his half of the Eved, and his Kinyan Isur is transferred automatically with the Kinyan Mamon. However, when an Eved goes free with "Shen v'Ayin," it is the Kinyan *Isur* which is released and drags the Kinyan Mamon along with it. Since the Kinyan Isur cannot be divided into two, neither of the owners can free the Eved through "Shen v'Ayin" by himself.

Consistent with this logic, the Ra'avad adds that if both owners sell the Eved at the same time, or if the husband and wife sell the property at the same time (or if the two owners of an Eved hold a stick together and knock out the Eved's eye or tooth), the property or the Eved can be transferred. Each of the owners has enough ownership to transfer his part of the property, and the only reason he cannot do so is because it is not possible to divide the property (the Eved cannot be split into two, and the Kinyan Peros of property cannot be separated from the Kinyan ha'Guf). Therefore, when they sell it together, the property can be transferred.

Rashi and Tosfos might disagree, since they maintain that neither owner has a full-fledged ownership on his half of the property, since a Kinyan Peros alone is not a full ownership. Therefore, even if they sell the property at the same moment, it cannot be sold.

(c) The RAMBAN in Bava Basra (50a) and the RASHBA there write that the reason an Eved does not go free when one of its two owners knocks out an eye or tooth is because of a Gezeiras ha'Kasuv. The verse teaches that the Eved must be fully owned by the owner in order to go free with "Shen v'Ayin." This Gezeiras ha'Kasuv excludes even a normal partnership from the Halachah of "Shen v'Ayin." However, when Ameimar teaches that neither a husband nor his wife can sell the Nichsei Milug, he is not basing this on the verse which the Gemara quotes regarding "Shen v'Ayin" or regarding the Halachah of "Yom O Yomayim." Ameimar is simply suggesting that based on logic alone, it would seem that a Kinyan Peros alone, or a Kinyan ha'Guf alone, is not a full enough Kinyan to be sold or transferred. This logic does not apply to a normal partnership, as Rashi writes, and therefore each partner *can* sell his portion. (According to this, Ameimar's statement is only loosely based on Rebbi Eliezer's ruling.)

90b

QUESTION: The Gemara teaches that if a Shor Mu'ad killed a person and also caused damage, we must first judge it for the damages that it caused, and afterwards we judge it for killing the person and make it a Shor ha'Niskal, a Shor that must be put to death. The judgement must be done in this order, because if the Shor is made into a Shor ha'Niskal first, we can no longer obligate the owner to pay for damages. The Gemara concludes that the only reason for this is because Beis Din must kill the Shor immediately after making it a Shor ha'Niskal, and, therefore, we cannot evaluate whether the Shor was fit to cause damage after it became a Shor ha'Niskal, and nor can the owner use the ox for plowing in order to pay back the damages after it became a Shor ha'Niskal.

REBBI AKIVA EIGER (in Gilyon ha'Shas), and the KETZOS HA'CHOSHEN (405:2) in the name of his brother (the author of the Kuntrus ha'Sefeikos), ask that the owner should be exempt for paying for damages after the Shor becomes a Shor ha'Niskal for a different reason. The Gemara in Kerisus (24a) teaches that if the witnesses who made a Shor into a Shor ha'Niskal turn out to be Edim Zomemim, the Shor is Hefker and anyone may take it, since the owner is Mafkir the Shor when he hears that it has become a Shor ha'Niskal and is Asur b'Hana'ah. The Mishnah earlier (44b) teaches that according to Rebbi Yehudah, a Shor is not killed if its owner is Mafkir or Makdish it after it kills a person (Rashi on 98b, DH Machur, seems to explain an anonymously-authored Beraisa like Rebbi Yehudah). In order to be put to death, the Shor must be in the possession of a person (and not Hefker) until after the G'mar Din. The Gemara (13b) applies this to compensation for damages as well; the owner is only Chayav to compensate for damages caused by the Shor when he owned the Shor at the time of the G'mar Din. Accordingly, in our Sugya the owner of the Shor should be exempt as soon as his Shor has been judged as a Shor ha'Niskal, because he is Mafkir the Shor before it is brought to court to be judged for the damages, and therefore he is exempt from payment!

ANSWERS:

(a) REBBI AKIVA EIGER (in Gilyon ha'Shas) suggests that, at least according to Rashi, it is possible that being Mafkir a Shor exempts the Shor only from Misah, but does not exempt the owner from monetary payments. (The verse from which we derive the exemption discusses a Shor that killed a person and is Chayav Misah.)

According to this, how can we explain the Gemara earlier (13b) which applies this principle even to monetary compensation? Perhaps that Gemara is discussing only the payment of "Kofer" that is given when the Shor kills a person, while compensation for damages is different!

This, in fact, seems necessary according to Rashi's own view. Rashi writes that not only being Mafkir the Shor exempts the owner from payment and the Shor for Misah, but even *selling* the Shor exempts it from payment or Misah. TOSFOS RABEINU PERETZ (44b; see Insights there) asks that according to Rashi, how will it be possible to ever obligate a person to pay for damages that his Shor caused? The owner can always sell his Shor before it is brought to court and exempt himself from payment, without losing the value of his Shor! It therefore seems logical that Rashi does not exempt a person from payment if the Shor is sold or made Hefker before the case is brought to the court. He only exempts the Shor from Misah or the owner from Kofer. In neither of these cases will it be in the interest of the owner to sell the Shor, because even if the owner becomes exempt from Kofer by doing so, he will still have to pay compensation, or "Damim" (see Gemara 43a). In addition, he will not be able to sell the Shor in order to exempt it from being killed, since nobody would pay money for a Shor that killed a person. It is worthwhile for the owner to keep the Shor on the possibility that the Shor will not be found guilty of killing a person.

However, the ROSH (1:16) writes that not only does Rebbi Yehudah exempt the owner of the Shor from paying for damages if he is Mafkir the Shor, but even the Rabanan agree with Rebbi Yehudah in this regard. They argue only with regard to whether the Shor is put to death after the owner is Mafkir it. Accordingly, the owner of the Shor should be exempt from payment according to both Rebbi Yehudah and the Rabanan once the Shor becomes a Shor ha'Niskal.

(b) The KETZOS HA'CHOSHEN answers that there are two ways for a person's property to become Hefker: the first is the normal act of Hefker, wherein the owner willingly removes the object from his property; the second is Yi'ush, wherein the object is unavailable to the person and he gives up hope of ever having use of the object again.

The Ketzos ha'Choshen writes that when the Gemara in Kerisus says that when the witnesses of the Shor ha'Niskal are found to be Edim Zomemim anyone may take the Shor (since the Shor is Hefker), this can be because of either of these two methods of making an object Hefker. We can assume that the owner was Mafkir the Shor ha'Niskal, and, in addition, since the owner thought that he would never have use of the Shor again, he had Yi'ush.

However, neither of these methods of making an object Hefker would apply to our Sugya to exempt the owner of the Shor from payment for damages. The Ketzos reasons as follows:

Making an object Hefker is a form of Kinyan, just like when a person sells or is Makdish an object. The Gemara teaches that a person cannot sell or be Makdish an object that is not in his domain, available to him to use. Examples of things that are not in his domain are items that became lost or stolen, or items that became Asur b'Hana'ah. For this reason, Rashi writes earlier (45a, DH Eino Mukdash) that after the G'mar Din of a Shor ha'Niskal, the owner can no longer be Makdish the Shor. It follows, therefore, that the owner cannot be *Mafkir* a Shor ha'Niskal either. Why, then, does the Gemara in Kerisus teach that if the witnesses of the Shor ha'Niskal become Edim Zomemim, the Shor is Hefker? The Ketzos explains that when the witnesses become Edim Zomemim, retroactively the Shor *was* available for the owner's use at the time that he was Mafkir it (when he thought that it was a Shor ha'Niskal). Therefore, the Hefker takes effect. In the case of our Sugya, where the witnesses were not made into Edim Zomemim, the Shor does not become Hefker. (Other Acharonim argue that as long as the owner had no *practical* use of the Shor, he cannot be Mafkir or Makdish it, even though retroactively we determine that the Shor was not Asur b'Hana'ah. They explain that the Gemara in Kerisus considers the Shor to be Hefker only because of Yi'ush, and not because the owner was Mafkir it. See KEHILOS YAKOV 30:4, and BEIS HA'LEVI 1:48:9.)

Why will the Shor ha'Niskal not become Hefker because of Yi'ush? After all, Yi'ush certainly does apply to an object when the owner cannot use it; because the owner thinks that the Shor will never become available to him for use, he has Yi'ush, making the Shor Hefker. This should exempt the owner from paying for damages, since the Shor is Hefker and does not belong to him.

The Ketzos ha'Choshen answers that Yi'ush only works by creating a permit for anyone else to take possession of the object which the owner gave up hope of having. Yi'ush does *not* remove the object from the owner's possession, though, until the moment that someone else takes it from him. In this respect, it is not similar to Hefker, which removes the object from the owner's possession immediately. Therefore, even though the owner of the Shor ha'Niskal had Yi'ush, since the Shor is still in his possession he is not exempt from paying for damages. In the case in Kerisus, on the other hand, where the witnesses were found to be Edim Zomemim, anyone may take the Shor, thereby removing it from the previous owner's possession, due to the Yi'ush of the Shor's owner.

However, there are a number of Acharonim who argue with the Ketzos on this point, and maintain that Yi'ush also removes the object from the owner's possession immediately. (See DIVREI YECHEZKEL 49:4, and CHAZON ISH Bava Kama 18:3.)

(c) The CHASAM SOFER (CM 165) and the CHAZON ISH (Bava Kama 3:16) explain that the only time that Hefker exempts the owner of the Shor from paying for damages is when he no longer has any connection to the Shor that caused the damage. However, the owner of a Shor ha'Niskal still has some connection to the Shor, since he has certain responsibilities with regard to his Shor -- it is a Mitzvah for the owner to see to it that the Shor is put to death. Therefore, the owner is still considered to be the owner of the Shor with regard to the obligation to pay for damages.

(d) According to the ROSH, it is possible that the Torah exempts the owner from killing the Shor or from paying for damages only because the owner has suffered sufficiently since he lost the Shor by being Mafkir or Makdish it. Hence, the exemption would apply only when the owner was willingly Mafkir or Makdish the Shor. If the owner had Yi'ush from having the use of the Shor because it became unavailable to him against his will (for example, it became a Shor ha'Niskal, or it became lost or stolen), then the owner might not be exempt from payment since he did not suffer because of the damage that the Shor caused. (M. Kornfeld)