QUESTION: The Gemara relates the severity of the sin 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 (with the 22,000th Jew) will be frightened by a barking dog and miscarry. 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, why does the Mishnah (79b) and the Gemara here permit raising a dog when it is tied to a chain? Even when tied to a chain, a dog might bark at a pregnant woman and cause her to miscarry!

(a) Perhaps since the pregnant woman knows that the Chachamim permitted one to raise a dog when he keeps it tied to a chain, she will not be afraid when she hears it barking because she will know that it is tied to a chain.

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

A practical difference between these two approaches exists in a place where not all of the people are scrupulous about observing the enactments of the Chachamim, or in a place in which Nochrim live. In such a place, when a pregnant woman hears a dog bark, she will be scared even though she cannot see the dog because she knows that there is a possibility that it is not restrained. According to the first explanation, in such a place one may not keep a dog even on a chain, since the barking alone will cause the pregnant woman to miscarry. According to the second explanation, one is 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, but when she sees the dog on the chain she will not miscarry.

OPINIONS: The Mishnah states 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 though he were an Eved being sold on the market. According to the value of what type of Eved is one's value determined?

Similarly, when one's ox (which is a Mu'ad) kills a person, the owner must pay the value of the victim (Kofer). According to some opinions (43a), when 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 cases, Kofer and Nezek, the value of the person is determined by viewing him as though he were an Eved (because a person who is not being sold has no quantifiable value, as Abaye states later, end of 84a). To what type of Eved is the person compared 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"), his value is determined by viewing him as though he were an Eved being sold on the market. Here, too, to what type of Eved is the person compared?

(a) RASHI explains that the reason his value is assessed as though he were being sold as an Eved is that the one who damaged him caused that amount in decrease in his value since, if the damagee wanted, he could have sold himself as an Eved Ivri. Rashi implies that his value is determined 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 assessed as though he were an Eved Ivri.

Rashi's explanation is logically sound. Since the payment is for the loss of value of the person who was damaged, it is logical that his value is assessed according to his worth on the Eved Ivri market. In contrast, the value of an Eved Kena'ani is unrelated to 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; the owner of an Eved Kena'ani may force his slave to perform menial tasks, the owner does not have to show him respect (such as by giving him his only pillow), and the Eved serves his master forever.

The ROSH (8:1) questions this explanation. An Eved Ivri may be sold only for a maximum of six years (or until Yovel, whichever comes first). How can a person's decrease in value be determined based on how much his cost would be if sold as an Eved Ivri? That value would represent only the value of six years of his work, while the value of the damage is worth much more, since he could 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 thus the Nizak's value is assessed again, at that time, according to his worth as an Eved Ivri. It is also not logical to suggest that the value of the person as an Eved Ivri is multiplied by the number of periods of six years that he is expected to live, since there is no way to know how long he will live. Moreover, the value owed for damages is always assessed based on a single estimate which takes into account the entire life of the Nizak. This is a leniency for the Mazik. If the Torah would mandate an evaluation of the value of the damage based on multiple sets of six years, it would be a greater sum than a single estimate for the total number of years.)

Perhaps Rashi means that Beis Din evaluates how much a buyer would pay for an Eved Ivri with the stipulation that part of the sum will serve as a Kinyan on the Eved for the first six years, and another part of the sum will renew the Kinyan at the moment the first Kinyan expires (if the Eved 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) disagrees with Rashi and writes that the person's value is assessed based on his value as an Eved Kena'ani. As mentioned above, the value of an Eved Kena'ani is more than that of an Eved Ivri. Why, though, should the value of a Jew be calculated according to his value if sold as an Eved Kena'ani?

Apparently, the Rosh maintains that the payment of Nezek is not intended to compensate the person for a material loss that he suffered directly as a result of the damage. Rather, it is compensation for the victim's devaluation, for becoming a less-valuable entity. Since a free person obviously cannot be given any quantifiable value, his devaluation can be assessed only according to how much an Eved would be devalued by such damage. (This approach is consistent with the view 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.

1. Tosfos in Megilah (23b) points out that when a person says "Dami Alai," his value is assessed in the presence of ten men, the same way the value of land is assessed, because an Eved is compared to Karka, and this person's value is assessed like that of an Eved. However, only an Eved Kena'ani is compared to Karka, and not an Eved Ivri. Rashi, on the other hand, may maintain that even an Eved Ivri is compared to Karka (see Insights to Kidushin 28:1).

2. The HAFLA'AH SHEB'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 the Mishnah here says that the person is evaluated like an Eved sold in the marketplace, it must refer to an Eved Kena'ani. However, the Mishnah in the Yerushalmi does not include the phrase "in the marketplace" ("ba'Shuk"). This also seems to be the Girsa of some Rishonim in the Mishnah here (see RABEINU GERSHOM to Erchin 19b).

3. 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), even though the Halachah of Eved Ivri does not apply nowadays. Moreover, 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! Also, the Gemara (84a) says that the value of damage done to a male child is assessed 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.

One might suggest that in all of these cases, the Gemara does not mean to say that their value is determined literally by the value of an Eved. Rather, the Gemara means that their value is determined 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 the woman's value is determined by the value of a Shifchah Kena'anis being sold in order for her to become a wife to her buyer's Eved Kena'ani.

The Acharonim offer a number of responses to these proofs against the view of Rashi.

1. The Bach suggests that the amount to be paid as Nezek certainly is 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 teaches that in these cases, a man may insist that he should at least be paid his value as though he were being sold as an Eved Ivri.

2. The YAM SHEL SHLOMO writes that although the person who was damaged lost only the profit which 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 Beis Din can do is determine the value of the person as though he were being sold as an Eved Kena'ani and base the payment of the Mazik on that value. Similarly, if a woman or child is damaged, her loss is that she no longer can hire herself out as a worker for a high price, or, in the case of a woman, her loss is that she will not receive as large of a dowry. However, the woman or child's value is determined based on the price of an Eved Kena'ani or Shifchah Kena'anis.

This also seems to be the opinion of RABEINU YEHONASAN cited by the Shitah Mekubetzes who explains that the Mishnah refers 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 an Eved Kena'ani.

(c) Rashi might not mean that the Nizak's value is assessed as though he were an Eved Ivri being sold to a Jew. Rather, his value is assessed as though he were 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 a Nochri is not required to treat an Eved Ivri differently from 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. An Eved Ivri may be sold to a Nochri in the marketplace, even nowadays, and even an adult Jewish woman may be sold in such a manner. (M. Kornfeld)