Injury to a Slave (87a)

 

 

 

 

 

            In the framework of the mishna on p. 87a, we will deal today with the law governing a non-Jewish slave,[1] primarily as a nichval (the victim of an injury inflicted by others or by his master), but also as a chovel (one who causes an injury to others). We will conclude with a case that combines the issues – a non-Jewish slave who causes an injury to himself.

 

I. One who causes an injury to a non-Jewish slave belonging to another person

 

One who injures a non-Jewish slave belonging to another person is liable for all [five payments]. Rabbi Yehuda says: No boshet (humiliation) is paid in the case of non-Jewish slaves. (87a)

 

            The discussion in our mishna does not revolve around the question of who receives the payments imposed in the case of injury, but rather it focuses on the very existence of such liability. As a rule the master is entitled to such payments, and we will deal with this matter later in the shiur, but the focus here is the obligation itself. Here, apart from the Tannaitic disagreement regarding boshet, which we will not deal with today, all is clear – chovel bi-eved shel acherim (one who injures a non-Jewish slave belonging to another person) is liable for the five payments ordinarily imposed on the offender.

 

            This, however, is not self-evident. As we know, the payments imposed in the case of chovel, apart from the payment made for nezek, are unique to the case of a chovel, and they do not apply in the case of a person who causes an injury to another person's animal. As for a slave, one might have thought that since a non-Jewish slave is regarded as chattel that is absolutely owned by his master, he should be treated like property, so that an injury inflicted upon him should be considered like damage done to another person's property, rather than an injury inflicted upon a person. The mishna, however, teaches that this is not so. This duality characterizes a non-Jewish slave: on the one hand, we do not say that since he is a human-being, he does not fall into the category of chattel, but on the other hand, we do not say that since he is chattel, he does not fall into the category of a subject, a person who among other things can become liable as a chovel and also cause a person who was chovel him to become liable for the five payments. We will return to this issue later in the shiur.

 

            As for the party who is entitled to receive the payments, it is generally agreed, as stated above, that it is the master who is entitled to receive the payments. Here, however, there is a fundamental question, whether the master is seen as the injured party and therefore directly entitled to the payments, or whether perhaps the slave is viewed as the injured party and the person directly entitled to the payments, and the master becomes entitled to the payments by virtue of the law that "ma she-kana eved kana rabbo" ("whatever is acquired by a slave is acquired by his master"). If at this point this question seems vague and abstract, I hope that it will be sharpened over the course of the shiur with the practical ramifications that stem from it.[2]

 

            At the outset, I would like to repeat a point regarding an injury inflicted upon a slave that was addressed already in the first shiur on chapter Ha-Chovel. The Minchat Chinukh (commandment 49, no. 25) relates to the Rambam's position that liability for the nezek in a case of chovel is regarded as a kenas, and proposes an exceedingly novel idea:

 

It is clear to me that a chovel bi-eved shel acherim is liable to pay his master the five payments… In such a case the payment for nezek is not a kenas, so that he should be exempt if he admits having caused the injury, for a person's slave is like his ox and other chattel… Thus he is like a person who caused damage to another person's ox, in which case the payment for the damage is a chiyyuv mamon, and he is liable even if he admits having caused the injury.

 

In the previous shiur we expressed our reservations about this novel idea. As we saw, also in the case of a free person who suffered an injury, there would have been room to relate to his body as damaged property and impose liability for the depreciation as a monetary payment, for when an animal causes an injury to a person, its master is liable for the damage as a monetary payment.[3] The Rambam's position is based on the fact that the unique stringency in the case of a chovel be-meizid (one who intentionally causes an injury to another person) cancels the ordinary monetary obligation and shifts the liability to that of a kofer (ransom) for the injured organs. This stringency exists also in the case of a non-Jewish slave, as the prohibition to cause an injury is valid with respect to him as well, and the law applying to him, as established by our mishna that is quoted also in the words of the Minchat Chinukh, is like that of a person, the injury of whom imposes liability for the five payments. Therefore, there is no reason not to say that according to the Rambam here too the obligation is defined as a kenas and kofer for the injured organs. [At the end of this shiur we will see a case, unique in my opinion, where an intentional injury to a person is considered like damage done to property.]

 

            There is, however, room to adopt a certain point assumed by the Minchat Chinukh, namely, that the injured party with respect to the payment made for the injury is the master. That is to say, it is incorrect to say that the slave is entitled to this payment, and the reason that the master collects it is that "ma she-kana eved kana rabbo." The payment made for the injury is compensation for the depreciation in value of the damaged item, i.e., the injured body, and in this case the owner of the damaged item is not the slave, but rather his master. This is implied by Rashi in Gittin on a passage to which we will yet return: "It was not necessary [to mention] his damage, i.e., the value of his hand, as it is obvious that it is paid to his master, for he caused him a monetary loss" (12b, s.v. u-refu'ato). It would seem that the same is true, and all the more so, regarding liability for shevet (loss of livelihood), which stems from the loss of potential wages that belong to the master, a matter that we will expand upon below. As for tza’ar (pain) and boshet,[4] however, it stands to reason that the party entitled to the compensation is the slave, for these payments are based on the suffering of the slave, and the master receives them only by virtue of the law that "ma she-kana eved kana rabbo."

 

            In any event regarding nezek, the position of Rashi and the Minchat Chinukh is clear. It should be noted that the case of chovel bi-eved (one who injures a slave) presents us with the rare split between the person suffering an injury and the owner of the injured body – the person who actually suffered the injury is the slave, but the owner of the body is his master. As stated, it seems from Rashi that the person entitled to payment for the nezek is the owner of the injured body. This position accords with the general approach in the laws of nezek, according to which the party entitled to compensation is the owner of the damaged article, and not the damaged article itself. We asked in the past whether liability for damage is for the damage caused the article or for the damage caused to the person, but it is clear that the party entitled to demand payment is not the article but the person. This is true not only because the article is not fit to demand payment, but because the basic liability is toward the party that suffered the damage. When, for example, a person causes damage to an ownerless item, from the perspective of the laws of nezek, there is no damage.

 

            It would seem that there is room for a different approach to the payment made for injury in the case of a chovel bi-eved. It may be argued that liability for damage in the case of an injury is different from the regular laws of nezek, and this obligation is toward the party who actually suffered the injury and not its owner. Surely we are dealing (especially according to the Rambam who says that the payment made for injury is a kenas) with a unique liability that comes in place of "an eye for an eye" – a kofer for the injured organs, rather than compensation for the financial loss that was caused. The replacement for "an eye for an eye" is a monetary payment, and this payment is meant for the person who was injured. Since we have established that a slave is a human being with respect to injury, it is he who is entitled to the payment made for the injury, but in practice the master acquires it because of the law that "ma she-kana eved kana rabbo."

 

            However, as was demonstrated by the Acharonim,[5] this proposal is contradicted by the Gemara in Gittin 42b. The Gemara there deals with a most interesting halakhic figure: A non-Jewish slave who lacks his deed of emancipation. We are dealing with a slave whose master no longer has monetary rights to him, but nevertheless he is not a free person, and he remains – at least with respect to his personal standing according to the laws of Yoreh De'a – with the status of a non-Jewish slave, as he has not yet received his deed of emancipation. As the Ramban writes in Gittin 38b:

 

There are two kinyanim regarding a non-Jewish slave: a monetary kinyan, i.e., for the work of his hands, and a bodily kinyan that imposes prohibition. This is similar to the kinyan of marriage in a married woman, and it can only be cancelled through a deed of emancipation, even if the monetary kinyan in him was already cancelled, e.g., where [the slave's owner] declared him ownerless or despaired from finding him.

 

The master of a slave who lacks his deed of emancipation is not entitled to the slave's handiwork, and it would seem that he is no longer governed by the law that "ma she-kana eved kana rabbo." For our purposes, the Gemara raises a question regarding a case where a mu'ad ox (an ox with an established propensity for goring) gores and kills a slave who lacks his deed of emancipation. In such a case the Torah imposes a kenas on the owner of the ox: "He shall give to his master thirty shekels of silver" (Shemot 21:32). The Gemara is in doubt whether the master of a slave who lacks his deed of emancipation is entitled to this kenas: "The Torah says: 'To his master,' and this [man] is not his master; or perhaps since the slave still lacks a deed of emancipation, we do call him a master." What is important for us is that the Gemara is quick to clarify that if the master is entitled to the kenas in such a case, he is also entitled to compensation for injury in a case of chovel bi-eved when the slave lacks his deed of emancipation. The Tosafot (ad loc., s.v. chavli) relate to this assumption, and explain it as follows:

 

Even though his handiwork belongs to himself, since the kenas goes to his master, payment for injury also goes to his master, for what is the difference between killing him entirely and killing him partially?

 

            The Tosafot say that we can see the payment for chovel in this context as a partial version of the kenas of thirty shekels, and if the master is entitled to the kenas, he should also be entitled to the payment for injury. According to the simple understanding, the payment for injury under discussion here is the payment for nezek, which is the payment that parallels the kenas of thirty shekels, which is liability for the loss of the slave.

 

            What can we learn from this Gemara regarding our question whether a chovel bi-eved that belongs to another person is liable for payment for the injury to the slave, and the master collects the payment by virtue of the law that "ma she-kana eved kana rabbo"; or whether the initial liability is already to the master? First of all, the matter is decided in favor of the second option, for we are dealing here with a situation where the law that "ma she-kana eved kana rabbo" does not apply, and nevertheless it is at least possible that the master is entitled to payment for the injury.[6] It cannot be argued that the Gemara in Gittin is in doubt about this very point, because the initial doubt is not about injury but about the kenas, and the Gemara clarifies that we are dealing with a doubt regarding the definition of "master" in the interesting situation of a slave who lacks his deed of emancipation.

 

            Another thing that may be learned from the Gemara in Gittin, at least in the framework of the possibility that the kenas is paid to the master, is that the idea that underlies the understanding that we just rejected, that we must distinguish between the party who is ordinarily entitled to damage payments and the party who is entitled to payment for injury, remains in place. Surely it is an astonishing law – the master has no monetary rights in the slave, but nevertheless he is entitled to the payment for injury.

 

This is a difficult position to justify in the ordinary context of the laws of nezek.[7] We are forced to the conclusion that, at least according to this possibility in the Gemara, we are not dealing with ordinary monetary compensation, but to unique liabilities that the Torah imposed in the form of a thirty shekel penalty in the case of an ox that killed a slave and in the form of a kofer for the injured organs in the case of a chovel bi-eved. These liabilities do not relate to the owner of the property that was damaged, but rather to the person who suffered the injury, only that in the case of a non-Jewish slave, the master is the person in whose name the slave is registered! The slave's basic identity is "the slave of X," and therefore the payments that are meant personally for the slave go directly to his master. This belonging is not monetary, put personal. Therefore, it is at least possible that it remains in place even when the master has no monetary rights in the slave, when he lacks nothing but his deed of emancipation. That is to say, even though we adduced proof from the Gemara in Gittin to the Minchat Chinukh's understanding that the party that is fundamentally entitled to the compensation is the master, were the law in accordance with his position that a chovel bi-eved is liable as one who causes damage to another person's property, we would be unable to understand that Gemara. The Gemara is only understandable because of the unique nature of liability in the case of injury, which is valid even in the case where the injury is caused to a slave.

 

Liability for shevet in a case of chovel bi-eved SHEL ACHERIM

 

            In light of what was said above, it seems obvious that if a person caused an injury to a non-Jewish slave who lacked his deed of emancipation, it is the slave who is entitled to collect the compensation for shevet, and not the master, because it is the slave who suffers a monetary loss owing to the shevet, and the rule that "ma she-kana eved kana rabbo" also does not apply.[8] I therefore find it astonishing that the Tosafot Rosh thinks otherwise:

 

Even shevet, even though he is idled from his work, since it because of the injury to his body, and the kenas goes to his master, what is the difference between killing him entirely and killing him partially?

 

            The Rosh argues that according to the possibility that the master is entitled to the kenas of thirty shekels, and in keeping with the argument that we saw already in the Tosafot, "what is the difference between killing him entirely and killing him partially," compensation for shevet is also included in the master's entitlement to the payments made for the injury. As stated, this is astonishing, because compensation for shevet is a clear chiyyuv mamon (according to all opinions), and it is difficult to understand how the master can be entitled to it, since he suffers no monetary loss whatsoever from the slave's loss of earning potential, as he no longer belongs to him.

 

            In the context of liability for shevet, I wish to note the position of the Netivot ha-Mishpat, 363, no. 2. The Netivot relates to the law regarding theft appearing later in the tractate (96b), according to which slaves are compared to landed property and therefore cannot be stolen. Accordingly, if a person stole a slave and the slave grew old, the thief can say to the owner: "Your slave stands before you." The Netivot asks: Why doesn't the thief bear the liability of one who caused an injury to a slave? For surely we learned above (p. 85b) that causing a person to be idle from his work is treated like injury with respect to liability for shevet. Why then is the thief not liable to pay the slave's owner for the shevet, as if he had injured him?

 

The core of the answer to this question is simple, and appears also in the words of the Netivot: Payments made to the master for the injury caused to his slave are payments for injury. As we emphasized above, the fundamental point that follows from our mishna is that an injury caused to a non-Jewish slave is not ordinary damage caused to another person's property, but rather injury, like any injury caused to another person, which creates liability for the five payments. Therefore, if the thief locked the slave in a room, he would be liable for his shevet, as in the case of one who locked another person in a room. The person who would be entitled to collect this compensation is of course the master. The law found on p. 96b states that stealing a slave from his master, despite the loss caused to the master, is not a case of damage that creates liability. This is not remarkable, as we know that a person who deprives another person from making a profit is exempt, as this is merely gerama. As stated, even the Netivot agrees with this.

 

The Netivot, however, takes the matter a step further, and writes that the unique payments imposed in a case of chovel, i.e., the four payments, apply only in the case of a person who is obligated in the commandments, and the slave is the person who is fundamentally entitled to them, and the master becomes entitled to them based on the rule that "ma she-kana eved kana rabbo." It turns out then that the Netivot distinguishes in a manner opposite to that which we proposed above. We proposed that logically there is room to say that the payment for nezek, like the kofer for injured organs, belongs basically to the party who actually suffered the injury, but compensation for shevet - which is a clear chiyyuv mamon – is paid to the party who suffered the loss, i.e., the owner of the work potential, namely, the master. The Netivot maintains the reverse: the payment for nezek, which is similar to the ordinary payment for damage, is made to the owner of the injured article, i.e., the master. Compensation for shevet, on the other hand, which is a payment unique to chovel, is paid to the person who suffered the injury, and the master receives it only because of the rule that "ma she-kana eved kana rabbo." In my opinion, this is exceedingly difficult, for we are dealing with a financial loss that the slave does not suffer. Why then should there be any liability to him?

 

            In any event, we can summarize the discussion concerning liability for shevet in the case of one chovel bi-eved shel acherim, by saying that the simple understanding is that even though the liability is created in the wake of an injury caused to a person, i.e., the slave, the person who is entitled to the payment is the master, owing to the monetary nature of the liability. Against this understanding arose opponents from opposing directions: the Tosafot Rosh maintains that this is a liability toward the master even when he has no monetary rights in the slave, because he is the party by whom the slave is called. The Netivot, on the other hand, maintains that the party entitled to the payment is the slave himself, even when the monetary rights belong to the master. Both shift the liability for shevet away from the monetary rights in the slave. In my opinion, the matter requires further study.[9]

 

Liability for ripuy in a case of chovel bi-eved shel acherim

            A novel point regarding this issue appears in the Gemara in Gittin 12b:

 

The Master said: He must compensate his master for his shevet and ripuy. [What need is there to tell me this in] the case of shevet, which is obvious? Shevet is mentioned because the payment for ripuy [had to be mentioned]. Surely the payment for ripuy goes to the slave, for he needs it for his cure. This must be stated in view of a case where it was calculated that he requires five days [of treatment] and by the application of a painful remedy he was cured in three. You might think that in this case [the whole of the estimated medical cost goes to the slave since] the extra pain is his; but now know [that it does not].

 

            "Surely the payment for ripuy goes to the slave, for he needs them for his cure." It is clear to the Gemara that the payment for ripuy is not money that is paid to the master for him to spend as he sees fit; rather it is earmarked exclusively for the healing of the slave. From this the Kovetz Shiurim (Ketubot, 218) reaches the conclusion, already mentioned several times over the course of these shiurim, that liability for ripuy is not a chiyyuv mamon, but rather an obligation to heal the injured party, which in practice finds expression in covering the medical costs. Since the obligation is to heal, there is no monetary entitlement that the master acquires by way of the rule that "ma she-kana eved kana rabbo," and the obligation cast upon the person who caused the injury is to heal the slave. Other Acharonim disagree with this idea, and in the shiur about liability for ripuy we noted that even the Rambam implies otherwise. According to this viewpoint, it must be understood that even though the obligation is a chiyyuv mamon, it is an obligation the basis of which is the sum paid to the doctor, and if it is decided not to heal the injured party, there is no longer any foundation to impose liability for ripuy. In my opinion, however, the Gemara's wording, "The payment for healing goes to the slave," tends more in the direction of the Kovetz Shiurim, that we are dealing here with an entitlement belonging to the slave. If we would like to integrate this with the previous sections of the shiur, the liability for ripuy – like the payments for tza'ar and boshet – is an obligation whose primary beneficiary is the slave, and owing to its non-monetary nature, it is not governed by the rule that "ma she-kana eved kana rabbo."

 

            As we noted in the shiur regarding ripuy, according to the understanding that the obligation is not to pay but to heal, it turns out that the manner of assessment regarding the payment for ripuy is more revolutionary than that regarding the other payments, and it translates an obligation to heal into a chiyyuv mamon. In any event, it is clear that if money that had been intended for the healing of the slave is left over in the hands of the slave, the master is entitled to it, if only because of the rule that "ma she-kana eved kana rabbo." There is no difficulty in the words of the aforementioned Gemara regarding the entitlement of the master in the case of expedited healing. Rashi there explains that the Gemara's initial assumption relies on the understanding – novel in my opinion – that when they healed the slave quickly with the stronger medication, and this presumably caused him great pain, the money saved is considered like payment for tza'ar, and there might have been room to think that the slave should be entitled to the payment for tza'ar. In light of the rule that "ma she-kana eved kana rabbo" we understand that the master is also entitled to the payment for tza'ar, and there was never any doubt about this. Nevertheless on the intuitive level, it can be understood why we might have though that when the slave saves his master the cost of healing, and for this he suffers pain, he should be entitled to the savings. In any event, according to the conclusion, the Gemara applies the rule that "ma she-kana eved kana rabbo" here as well.

 

            We will return to the law governing liability for ripuy in the case of a non-Jewish slave in the next section as well.

 

 

 

II. One who causes an injury to his own Non-Jewish Slave

 

            At the end of the mishna it says: "He who injures a non-Jewish slave of his own is exempt from all of them." The Posekim disagree whether or not the wording "exempt from all of them" indicates that he is exempt even from lashes. To understand their positions, let us preface by saying that a chovel violates a biblical prohibition ("Do not continue… to flog" [lo yosif]), and the reason that he does not receive lashes is that a person cannot become liable to both lashes and monetary payment, and the Torah explicitly imposed financial liability upon a chovel (Ketubot 32b). Therefore, the Rambam rules (Hilkhot Chovel u-Mazik 5:3): "When one strikes another person with a blow that does not warrant a peruta to be paid in recompense, he should receive lashes, for there is no financial penalty to be exacted for transgression of this negative commandment." And the Rambam adds: "Even if a person strikes a slave belonging to another person with a blow that does not warrant a peruta to be paid in recompense, he should receive lashes, because a servant is obligated to perform certain mitzvot."

 

The Bach (420, no. 5) and the Gra (420, no. 6) understood that one who strikes his own slave receives lashes even if he struck him with a blow that warrants a peruta to be paid in recompense, because he bears no liability for payment that would exempt him from the lashes. However, the Beit Yosef (420, no. 4) and the Ketzot ha-Choshen (424, no. 1) understood from the words "exempt from all of them" that one who injures his own slave is exempt even from lashes. They base this exemption on three cumulating assumptions:

 

1. The party who is initially entitled to compensation for injury in the case of chovel bi-eved shel acherim is the slave himself; the master receives the payment only because of the rule that "ma she-kana eved kana rabbo."

 

2. Even in the case of a master who causes an injury to his own slave, liability for compensation for the injury is created, and the slave is the party who is initially entitled to the payment, only that the master receives it because of the rule that "ma she-kana eved kana rabbo." It turns out then that the master is not exactly "exempt," but rather he is indirectly liable to himself.

 

3. It suffices that the master is theoretically liable to pay his slave, even if this does not lead to an obligation in actual practice, to define the master's action as the violation of a prohibition for which there is payment, and thus to exempt him from lashes.

 

            This course of reasoning is surprising and brilliant. Nevertheless, there is room to challenge each of its assumptions. As for the third assumption, one can disagree based either on the parameters of the rule that "whatever is acquired by a slave is acquired by his master,"[10] or on the parameters of the exemption from lashes in the case of a prohibition for which there is payment.[11] This is not our concern today.

 

            As for the first assumption, we already demonstrated in the first section of this shiur that the Gemara in Gittin 42b teaches that it is incorrect, as it is possible that the master should be entitled to receive the payment for his slave's injury even without the rule that "ma she-kana eved kana rabbo." For this reason, and also based on other passages, the Acharonim tend to reject this assumption. However, there are those who reconciled the position of the Beit Yosef and the Ketzot, and applied it to the payments for tza'ar, boshet and ripuy, regarding which the party initially entitled to the money is indeed the slave, and the Beit Yosef and the Ketzot can base their argument on them.[12] This, however, is difficult.

 

            We, however, will focus in this section of the second assumption of the Beit Yosef and the Ketzot, according to which theoretical liability to make compensation is created even in the case where a master causes an injury to his own slave. Several objections can be raised against this assumption.

 

            One objection was raised by the Beit Yosef himself, and he left it unresolved. As stated, the Beit Yosef understands that one who causes an injury to his own slave is exempt from lashes because we are dealing with a prohibition for which there is payment. Therefore, the Beit Yosef does not infer from the words of the Rambam: "Even if a person strikes a slave belonging to another person with a blow that does not warrant a peruta to be paid in recompense, he should receive lashes," that one who strikes his own slave always receives lashes, as do the Bach and the Gra, but rather that one who strikes his own slave is always exempt, even if he struck him with a blow that does not warrant a peruta to be paid. The Beit Yosef, however, asks about this: "Even if [the slave] is his, why should he not be liable for lashes for a blow that does not warrant a peruta to be paid?"

 

            Another difficulty arises from the law governing ripuy. As we explained above, the Gemara in Gittin 12b states that one who causes an injury to another person's slave is obligated to heal him, and the master does not receive the money unless there was money left over that was not used for the slave's healing, because: "Surely the payment for ripuy goes to the slave, for he needs it for his cure." (We explained above why we do not apply here the rule of "ma she-kana eved kana rabbo.") According to this, and in light of the Beit Yosef's assertion that even a master who causes an injury to his own slave is initially liable for the injury he caused, it follows that a master who causes an injury to his own slave is liable in practice for his healing. Indeed, the Tosafot (87a, s.v. bi-eved) raise the possibility that one who causes an injury to his own slave is liable for ripuy, and even though they reject this possibility, in Gittin (s.v. refu'ato), it remains unchallenged. However, the simple understanding of the mishna and the Rambam supports the Tosafot's conclusion in Bava Kama, that a master who causes an injury to his own slave is exempt even from ripuy. According to the Beit Yosef and the Ketzot, this is difficult.

 

            Owing to these objections, there may be room to disagree with the second assumption of the Beit Yosef and the Ketzot, and establish that while in the case of chovel bi-eved shel acherim, it is a clear case of injury, and for certain matters it is the slave who is initially entitled to compensation as the injured party, the case of a master who causes an injury to his own slave is not at all defined halakhically as a case of injury, and it does not obligate payment for injury, not even on the theoretical level. By law, such an action is not defined as a case of injury, but rather it is the acceptable - even if not desired – conduct of a master disciplining his slave. Therefore, this action does not make the master liable for the slave's healing. So too, it does not dictate lashes for the violation of the prohibition to cause an injury, but for the reason that is the very opposite of that of the Beit Yosef and the Ketzot – not because it is a prohibition that theoretically makes him liable for compensation, but because it does not involve the violation of any prohibition whatsoever.

 

            Support for this approach may be brought from the words of the Rambam in Hilkhot Rotze'ach regarding the law of "a day or two" with respect to a non-Jewish slave, that exempts a master who strikes his slave and the slave does not die immediately:

 

Whether a person kills his own non-Jewish slave or a slave belonging to someone else, he should be executed. For a servant has accepted the yoke of mitzvot and has been added to "the heritage of God."

What is the difference between killing one's own non-Jewish slave and a slave belonging to someone else? With regard to one's own slave, one has the right to strike him. Thus, if one strikes him with a blow that is sufficient to cause death, and he is on the verge of dying, but survives for 24 hours and dies afterwards, the owner should not be executed, although the slave died because of the blow…

It appears to me that when a person strikes his slave with a knife, a sword, a stone, a fist or the like, and it was assessed that he would die, and he did die, the leniency granted if the slave survives more than 24 hours does not apply. Instead, even if the slave dies a year later, the owner should be executed because of the slave's death. To underscore this point, the verse mentions striking the servant "with a rod." For the Torah only granted the owner permission to beat his slave with a rod, a staff, a strap or the like, but he may not strike him with murderous blows. (2:11-14)

 

            The Rambam clarifies that a master is permitted to strike his slave. The author of Responsa Shevut Ya'akov (I, 181) explains the exemption from lashes granted to one who causes an injury to his slave that does not warrant a peruta to be paid in recompense based on this ruling of the Rambam,[13] and he rejects the views that wish to explain it as dealing exclusively with a blow for the sake of work, for we do not find such a distinction regarding the law of "a day or two," and the Torah decreed, "He shall not be punished, for he is his money." It is possible that the basis for the allowance is the need to maintain discipline for the sake of work, but in practice we do not examine the context, but rather we see the blow delivered by the master as an act of discipline.

 

            Qualifications must, of course, be put forward. First of all, we are certainly not dealing with moral behavior. The Rambam clarifies at length in the last halakha in Hilkhot Avadim the proper attitude toward a non-Jewish slave. But even on the halakhic plane, the allowance is not sweeping. One qualification is spelled out in the aforementioned Rambam: "For the Torah only granted the owner permission to beat his slave with a rod, a staff, a strap or the like, but he may not strike him with murderous blows." When the blow is defined as "murderous" (e.g., where the master attacked his slave with a knife, but the slave was only injured), it is not included in the allowance, and it stands to reason – though I do not find support for this – that it would also obligate the master to pay for his slave's ripuy, and if there is no need for healing, and it does warrant a peruta to be paid in recompense, it would make the master liable for lashes.

 

            A second qualification is the law regarding "a tooth or an eye," which teaches that when the master injures one of his slave's primary organs, the slave goes free. Rashi (Gittin 21b, s.v. lo) explains that this law is strongly connected to the prohibition to cause an injury to a non-Jewish slave. It stands to reason then that just as the permission granted to the master to discipline his slave does not cover "murderous blows," it also does not include an injury to one of the slave's major organs, including his teeth. Here too it stands to reason that an injury caused to one of the slave's primary organs, if it was done in such a way that it does not set the slave free,[14] is defined as an injury, and it would obligate the master to pay for his slave's healing (and were it possible for there to be an organ that is worth less than a peruta, it would also make the master liable for lashes).

 

            To conclude this section I wish to note that, as was cited above, the position of the Bach and the Gra is that one who causes an injury to his own slave is liable for lashes, even if the blow warrants a peruta to be paid in recompense, because it is not a prohibition for which there is payment. According to them it is clear that a case of a master who causes an injury to his own slave is considered a case of injury with respect to the Torah prohibition that it involves. Nevertheless, there is room to consider the possibility that even according to them, we are not dealing with a case of injury with respect to the five payments, which are monetary obligations that are not created when a master disciplines his slave, and therefore there is no liability for ripuy. The matter requires further study.

 

III. A Non-Jewish slave who causes an injury or damage

 

            In this section we shall deal with another issue that is mentioned in our mishna, which addresses a slave not as a nichval, but as the chovel. "A slave and a woman are awkward to deal with (pegiatan ra’ah), as he who injures them is liable [to pay], whereas if they injure others they are exempt, though they may have to pay at a later date; for if the woman was divorced or the slave emancipated, they would be liable to pay." A slave who causes an injury becomes liable in principle, but in practice as long as he is a slave he has nothing from which to pay, owing to the law that "ma she-kana eved kana rabbo." His fundamental liability is connected to a point that was emphasized at the beginning of the shiur, namely, the duality that characterizes a non-Jewish slave – on the one hand he is the absolute property of his master, while on the other hand he is a human being for all purposes, who can impose liability for injury upon a person who causes him injury, and who can become liable as a chovel.

 

            At this point the question arises, whether alongside the liability that he bears as a person who causes an injury, the monetary ownership also makes his master liable based on the law governing damage caused by a person's property, similar to a person's liability for the damage caused by a person's animal. The answer, as is stated in our mishna, is negative: "pegiatan ra’ah." This issue was the subject of disagreement between the Sadducees and the Pharisees, as discussed in the mishna in tractate Yadayim (4:7):

 

The Sadducees say: We complain against you, O you Pharisees, in that you say, my ox or ass that has done injury is liable, yet my manservant or maidservant who has done injury is not liable. Now if in the case of my ox or my ass, for which I am not responsible if they do not fulfill mitzvot, yet I am responsible for their damage, in the case of my manservant or maidservant for whom I am responsible to see that they fulfill the mitzvot, how much more so that I should be responsible for their damage? They said to him: No, if you argue about my ox or my ass, which have no misunderstanding, can you deduce anything therefrom concerning my manservant or maidservant who have understanding? For if I were to anger them they would go and burn another person's grain heap and I should be liable to make restitution.

 

            The Sadducees maintain that the master's ownership of his slave is not inferior to his ownership of his animal, but superior to it, and therefore it stands to reason that there should be liability in such a case for the damage caused by one's property. The Pharisees' answer is that there is no room to impose liability, because "they have understanding, and if I were to anger them they would go and burn another person's grain heap and I should be liable to make restitution."

 

The Rishonim seem to disagree about how to understand the Pharisees' explanation. Rashi (Bava Kama 4a, s.v. lav) writes: "For were you to impose liability upon him, whenever the master would anger him, he would go and burn another person's grain heap in order to make his master liable." He implies that by strict law there would be room to impose liability upon the master, but the Sages ordained not to impose liability out of concern that perhaps the slave will go out and cause damage in order to make his master liable. This opinion aptly illustrates the duality of a non-Jewish slave, for it turns out that before the enactment, when the slave would cause an injury, two parties would become liable for the damage: the slave as the party who caused the injury, and his master based on the law governing damage caused by a person's property. It stands to reason that when we are dealing with injury, the master would not be liable for the four payments, but only for nezek, similar to the law governing the owner of an ox that gored a person.

 

We must examine what happens if the master paid for the damage caused by his slave, and afterwards the slave was emancipated: can the master collect from the slave the sum that he had paid out as compensation for the damage? Intuitively it would seem that the slave's liability as the party that caused the damage takes precedence over the master's liability as owner of the property that caused damage. But there seems to be no basis for this in the law, and if the master paid what he was obligated to pay according to the law, it is difficult to see by what right he can collect from the slave.

 

            The Rambam's approach is different from that of Rashi:

 

For a person is not liable for the damage caused by his slaves, even though they are his property. The rationale is that the slaves are mentally competent, and their owner is incapable of guarding them. [Were the owner to be held liable for the damage that his slaves cause,] if he angered a slave, the slave might go out and ignite a grain heap worth a thousand dinar or precipitate other similar damage [to cause his owner to be liable]. (Hilkhot Geneiva 1:9)

 

            The Rambam implies that the scenario in which the slave will cause damage in order to hurt his master is not the reason that underlies this law, but merely an illustration of the fact that we are not dealing here with an ordinary case of property that caused damage. Here there is room to ask – and the matter involves fundamental questions regarding liability for damage caused by one's property – whether the principle that removes the slave from his master's responsibility is the fact that "the owner is incapable of guarding them," or the very fact that "slaves are mentally competent," i.e., that an independent subject cannot be treated like property that causes damage. In any event, for our purposes it can be argued that the Rambam slightly reduces the stated duality, and that he maintains that indeed there is a contradiction between defining the slave as a person who causes injury and the possibility of seeing him as property that causes damage.

 

IV. A non-Jewish Slave who causes injury to himself

 

            After having dealt with a non-Jewish slave as the victim of an injury (inflicted by others or by his master) and as the cause of an injury, let us now complete the picture with the law governing a slave as both the victim and the cause of an injury. Such a case is discussed in the Tosefta:

 

A slave that caused an injury to himself goes free and pays his master. (9:8)

 

            All the commentators agree that the Tosefta does not come to teach us the inexplicable novelty that a non-Jewish slave that causes an injury to himself goes free based on the law of "a tooth and an eye." Rather it means to say that when a slave who had caused an injury to himself goes free, he must pay his master.

 

            We seem to have here a perfect display of the duality of a non-Jewish slave. He is both the victim of the injury and also the cause of the injury, and therefore he is liable to compensate his master for the injury, like an ordinary person who causes an injury to a non-Jewish slave. This seems to be the understanding of Rav Yechezkel Abramski (in his commentary, Chazon Yechezkel, on the Tosefta), and therefore he adduces additional proof from here against the view that one who causes an injury to a slave is liable to pay the slave, and that the master receives the money based on the law that "ma she-kana eved kana rabbo." It was clear to the Chazon Yechezkel that we cannot say that the slave is liable to pay himself and the master acquires it from him, because a person's liability to himself is not at all liability. This proves then that the liability is directly to the slave's owner, and in this case the slave becomes liable to his master. According to his analysis, we come to the conclusion – which stands to reason for other reasons as well – that a slave who causes an injury to himself is not liable to pay his master for the tza'ar and boshet, as these are liabilities due initially to the party who suffered the injury. It is only with respect to nezek and shevet that we can say that the master is the primary beneficiary, and therefore the slave is liable to him.

 

            In my opinion, however, the ruling in the Tosefta can be understood differently. We are dealing here with a person who causes an injury to himself. We will deal with this issue later in the chapter, and we will see different opinions regarding the prohibition to do this, and to the extent that there is such a prohibition, what is its nature and what is the relationship to the prohibition to cause an injury to another person. But it seems to me that even according to those who see here a single prohibition, regarding the monetary aspect, it is not the same phenomenon – one who causes an injury to himself is not at all considered as one who causes an injury according to the laws of Choshen Mishpat, for there is no interpersonal damage. Here we must return to a point that was raised at the beginning of the shiur. We noted that in principle we can see a person's body as a monetary asset in his possession, and treat an injury to that body not in terms of the unique laws of injury, but in the context of ordinary damage – damage to an article of monetary value. Therefore, when an animal injures a person, there is only liability for the resulting depreciation, and even according to the Rambam this liability is a chiyyuv mamon. We proposed that in a case of chovel we are dealing with a uniquely severe event of interpersonal injury, and this severity cancels the ordinary law of nezek, and shifts the matter to the unique track of the law of chovel: liability for four new payments is added, and according to the Rambam the liability for nezek turns into a kenas. We rejected the words of the Minchat Chinukh that the liability for nezek in the case of chovel bi-eved shel acherim is a chiyyuv mamon because he damages the master's property, and we argued that this is no different than any other liability for nezek resulting from injury, as there is no foundation for chiyyuv mamon, as the event of injury cancels it. However, in light of what we have said about one who causes an injury to himself, in the case of self-injury there is no injury, as that is defined as an interpersonal event, and therefore there is nothing to remove it from the realm of mazik. When a free person causes an injury to himself, even the regular laws of mazik do not apply, because no damage is caused to another party. But when a slave causes an injury to himself, he damages property belonging to his master, and therefore he enters the category of a person who causes damage without passing over to the unique track of chovel. Therefore, regarding a slave who causes an injury to himself, the Minchat Chinukh is right that the liability is defined as a chiyyuv mamon as in the case of a person who causes damage to another person's property. So too there will be no liability for the four payments; needless to say, nezek and tza'ar, which do not apply here even according to the Chazon Yechezkel, but even shevet (as an independent obligation, separate from nezek) does not apply here, because here we are not dealing with the law of chovel but with the ordinary law of mazik. As I understand the matter, this is the only instance of an intentional injury caused by a person to the body of a person that is governed by the laws of damage to property and not by the laws of chovel.[15] According to the suggested explanation, there is no proof from the Tosefta that in the ordinary case of one who causes an injury to a non-Jewish slave the primary beneficiary is not the slave himself, for the unique nature of the law of injury allows for such an approach, whereas in the case of the Tosefta the law of injury does not apply.

 

(Translated by David Strauss)

 

 

 

 

Sources For the next Shiur – Bava Kama 21

INjury to a minor Daughter

 

Having learned the mishna on p. 87a, we will continue with the Gemara until 88a (top), "she-patz'a be-faneha ve-ifcheta mi-kaspa." We will try to understand the foundation for the father's entitlement, if it exists, to the compensation paid for an injury caused to his minor daughter. See also Tosafot 87b, s.v. amar lei; Rambam, Hilkhot Chovel u-Mazik 4:14; Rif 31a in Alfasi (bottom), "ba'i R. Elazar" until the mishna on 31b; Ramban, Milchamot HaShem (the Ba'al ha-Ma'or does not appear in print, but is partially cited by the Rambam) 31b, "ve-katav od aval" until the end of the page.

 

 

, full_html