INSIGHTS TO THE DAF - BAVA KAMA 90

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Previous Daf BAVA KAMA 90

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1) KILLING AN "EVED" THAT ONE DOES NOT FULLY OWN
QUESTION: The Beraisa discusses a case in which a person sells his Eved and stipulates that "the sale is on condition that the Eved continues to serve me for the next thirty days." The Tana'im disagree about whether the first owner has the Halachah of "Yom O Yomayim." The Halachah of "Yom O Yomayim" states that when an owner of an Eved hits his Eved and his Eved dies after a period of only twenty-four hours, the owner is exempt from the punishment of Misah (which he would have received had killed a fellow Jew in such a manner). Some Tana'im rule that the Halachah of "Yom O Yomayim" applies to him, since he owns the Kinyan Peros of the Eved. Others rule that it applies only to the purchaser, who owns the Kinyan ha'Guf of the Eved.

The premise of the Gemara is difficult to understand. If the sale is conditional on the Eved's continued service of the first owner for thirty days, if the purchaser kills the Eved within that time he has not fulfilled his part of the deal; the sale should be annulled retroactively since the Eved did not serve the first owner for thirty days. Why is the second owner exempt from Misah because of the Halachah of "Yom O Yomayim?" Since the sale was nullified, the purchaser never owned the Eved at all.

Moreover, if the Eved serves the first owner only because of a stipulation made in the sale, why is the first owner considered to have any ownership in the Eved, even the Kinyan Peros? In truth, he does not own the Eved at all; 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: In this case, the words "Al Menas" ("on condition") apparently do not denote an actual Tenai, condition. Rather, when the first owner sold his Eved he retained for himself thirty days of use of the 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 the RAMBAM leaves them out as well.

2) SELLING A PARTIALLY-OWNED "EVED"
QUESTION: Ameimar teaches that neither a husband nor a wife may sell their respective portions of the wife's Nichsei Milug. The Gemara explains that Ameimar follows the view of Rebbi Eliezer who says that neither the husband nor the wife is exempted by the Halachah of "Yom O Yomayim" from the punishment of Misah for killing an Eved (of Nichsei Milug), since neither of them owns 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 due to 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 who belongs completely to the owner.

RASHI (DH Lo Asu) writes that Ameimar's position does not also preclude the partners in a jointly-owned field from selling their respective portions. In such a case, each partner fully owns half of the entire field, and he therefore may sell that half. The only case in which 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 any portion of the property.

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 is not freed when either of the partners knocks out the Shen or Ayin? Rebbi Eliezer seems to refer to a case of a normal partnership, and yet he 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 does not refer to a case of a normal partnership. Rather, when he says that neither partner frees the Eved through "Shen v'Ayin," he refers 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 indeed discusses a case of a normal partnership, and nevertheless freeing an Eved differs from selling property. An Eved is not "Ra'uy l'Chalukah"; he cannot be divided into two parts in the way that land can be divided. As a result, neither owner is considered the full owner of his share of the Eved.

The TOSFOS RID elaborates on this. He explains that there are two parts to the Kinyan of an Eved: the Kinyan Mamon and the Kinyan Isur. The Kinyan Mamon is dividable (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 automatically transferred with it. Therefore, one owner may sell his half of the Eved, and his Kinyan Isur is transferred automatically with the Kinyan Mamon. However, when an Eved goes free due to the law of "Shen v'Ayin," it is the Kinyan Isur which is released and causes the Kinyan Mamon to be released 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 (of the Peros and the Guf) sell their portions of the Eved at the same time, or if the husband and wife sell the Nichsei Milug 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 why he cannot do so is that 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 may disagree with this approach since they maintain that neither owner has a full-fledged ownership on his half of the property, because a Kinyan Peros or Kinyan ha'Guf alone is not a full ownership. Therefore, they might rule that even when both owners sell the property at the same moment, the sale is ineffective because the owners lack the ability to sell it.

(c) The RAMBAN and RASHBA in Bava Basra (50a) write that the source for the ruling that an Eved is not freed when one of his two owners knocks out his eye or tooth is a Gezeiras ha'Kasuv. The verse teaches that an 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, his teaching is not based on the verse which the Gemara quotes regarding "Shen v'Ayin" or regarding the Halachah of "Yom O Yomayim." Ameimar simply suggests based on logic (and not based on a verse) that a Kinyan Peros alone, or a Kinyan ha'Guf alone, is not a full enough Kinyan such that it can 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----------------------------------------90b

3) JUDGING AN OX THAT KILLED AND CAUSED DAMAGE
QUESTION: The Gemara teaches that if a Shor Mu'ad killed a person and also caused damage, Beis Din must first judge it for the monetary damages that it caused, and only afterwards can Beis Din judge it for killing the person and declare it a Shor ha'Niskal, a Shor that must be put to death. The judgment must be done in this order because if the Shor is made into a Shor ha'Niskal first, Beis Din no longer can obligate the owner to pay for damages. The Gemara concludes that the only reason for this is that Beis Din must kill the Shor immediately after making it a Shor ha'Niskal. Since the Shor must be killed immediately, Beis Din will be unable to evaluate whether the Shor was fit to cause damage, and the owner will not be able to use the ox for plowing in order to pay back the damages.

REBBI AKIVA EIGER (in Gilyon ha'Shas) and the KETZOS HA'CHOSHEN (406:2 in the name of his brother, the author of the Kuntrus ha'Sefeikos) ask why the Gemara gives this reason instead of a more fundamental reason for why Beis Din cannot obligate the owner to pay for damages once the Shor has become a Shor ha'Niskal. The Gemara in Kerisus (24a) teaches that when witnesses testify to make a Shor into a Shor ha'Niskal and then are found to be Edim Zomemim, the Shor is Hefker and anyone may take it since the owner was Mafkir the Shor when he heard that it became a Shor ha'Niskal and 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 later (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 Gemar Din. The Gemara (13b) applies this rule to compensation for monetary damages as well; the owner of a Shor is liable to pay for damages caused by the Shor only when he owns it at the time of the Gemar Din. Accordingly, in the case of the Gemara here, the owner of the Shor should be exempt from payment as soon as his Shor has been judged as a Shor ha'Niskal, because he is assumed to have been Mafkir the Shor before it was brought to court to be judged for the monetary damages.

ANSWERS:
(a) REBBI AKIVA EIGER (in Gilyon ha'Shas) suggests that it is possible, at least according to Rashi, that when the owner is Mafkir his Shor, this merely exempts the Shor from Misah but does not exempt the owner from monetary payments. (The verse from which the exemption is derived discusses a Shor that kills a person and is Chayav Misah.)

According to this explanation, what is the meaning of the Gemara earlier (13b) which states that the principle that the Shor must be owned until the Gemar Din applies even to a judgment of monetary compensation? Perhaps that Gemara discusses only the payment of "Kofer" given when the Shor kills a person, while compensation for damages is different.

In fact, this distinction seems to be a necessary conclusion based on Rashi's own view. Rashi writes that not only does being Mafkir the Shor exempt the owner from payment and the Shor from Misah, but even selling the Shor exempts the owner from payment and the Shor from Misah. The TOSFOS RABEINU PERETZ (44b; see Insights there) questions Rashi's position. According to Rashi, how can a person ever be obligated to pay for damages that his Shor caused? After all, 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. In light of this question, it 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 court. Rashi maintains only that the Shor is exempt from Misah and the owner from Kofer, but he does not apply this exemption to the ordinary payments for Nezikin. In these two cases, however, it is not in the best interest of the owner to sell the Shor, because even if the owner becomes exempt from Kofer by selling his Shor, he will remain obligated to pay compensation, or "Damim" (see 43a). His sale of the Shor also will not exempt the Shor from Misah, since nobody would pay to purchase a Shor that killed a person. It is worthwhile for the owner to keep the Shor since there is a 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 makes it Hefker. According to the Rosh's understanding, 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 Ye'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 the ruling of the Gemara in Kerisus -- which says that a Shor convicted of murder as a result of testimony of witnesses found to be Edim Zomemim is Hefker -- may be a function of either one of these two methods of making an object Hefker: first, it may be assumed that the owner was Mafkir the Shor ha'Niskal, and, second, since the owner thought that he would never have use of the Shor again, he had Ye'ush.

However, neither of these methods of making an object Hefker apply to the case of the Gemara here 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, like a sale and like making an object Hekdesh. The Gemara teaches that a person cannot sell or consecrate an object that is not in his domain, available for him to use. Examples of things that are not in his domain are items that were lost, stolen, and items that became Asur b'Hana'ah. In fact, Rashi earlier (45a, DH Eino Mukdash) writes that this is why the owner of a Shor ha'Niskal cannot be Makdish the Shor after its Gemar Din. It follows that the owner cannot be Mafkir a Shor ha'Niskal as well. Why, then, does the Gemara in Kerisus say that if the witnesses of the Shor ha'Niskal are proven to be Edim Zomemim, the Shor becomes Hefker? After all, the owner could not have been Mafkir it when it became a Shor ha'Niskal since it was Asur b'Hana'ah.

The Ketzos ha'Choshen explains that when the witnesses are proven to be Edim Zomemim, it becomes revealed retroactively that the Shor was available for the owner's use at the time he was Mafkir it (when he thought that it was a Shor ha'Niskal). That is why the Hefker takes effect. In the case of the Gemara here, where the witnesses were not found to be Edim Zomemim, the Shor does not become Hefker because it really is Asur b'Hana'ah. (Other Acharonim argue that as long as the owner has no practical use of the Shor, he cannot be Mafkir or Makdish it, even though it is retroactively determined that the Shor was not really Asur b'Hana'ah. They explain that the Gemara in Kerisus considers the Shor to be Hefker only because of Ye'ush, and not because the owner was Mafkir it. See KEHILOS YAKOV 30:4, and BEIS HA'LEVI 1:48:9.)

This explains why the owner cannot be Makdish the Shor. Why, though, does it not become Hefker because of Ye'ush? After all, Ye'ush certainly applies to an object when the owner cannot use it. The owner has Ye'ush precisely because he thinks that the Shor will never become available to him for use, and Ye'ush makes the Shor Hefker. This should exempt the owner from having to pay for damages, since the Shor is Hefker and does not belong to him.

The Ketzos ha'Choshen answers that Ye'ush does not remove an object from the owner's possession; rather, it permits someone else to take possession of the object from the owner's possession. In this respect it is not similar to Hefker which removes the object from the owner's possession immediately. Accordingly, even though the owner of the Shor ha'Niskal had Ye'ush, since the Shor is in his possession he is not exempt from paying for damages. In contrast, in the case in Kerisus where the witnesses were found to be Edim Zomemim, anyone may take the Shor (and remove it from the previous owner's possession) because of the Ye'ush of the Shor's owner.

However, a number of Acharonim disagree with the Ketzos ha'Choshen on this point and maintain that Ye'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 Hefker exempts the owner of the Shor from paying for damages only 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; namely, the owner has a Mitzvah to ensure that the Shor is put to death. Therefore, the owner still is considered the legal owner of the Shor with regard to the obligation to pay for damages.

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

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