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January 31, 2024 | ื›ืดื ื‘ืฉื‘ื˜ ืชืฉืคืดื“

  • Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.

Bava Kamma 90

Today’s daf is sponsored by the Hadran Women of Long Island “as we share the simcha of our friend and co-learner Shoshana Shur and her family upon the engagement of her son Eli to Rochel Markel. May the joy of this new couple spread to encompass all of klal Yisrael – and may we all continue to share smachot!”

After rejecting the suggestion that the tanaim debate whether or not there was a takana in Usha for the usufruct property of a married woman, the Gemara suggests three other explanations for the tanaitic debate regarding a slave who is usufruct property of the woman – does he go free if the woman knocks out his eye or does he never go free from this type of situation? The third explanation is that the debate is about whether one who has access to the proceeds, does that mean they are also like the owner of the principal or not. A similar debate is mentioned regarding a slave who is hit by his owner but dies more than twenty-four hours later. If that slave was sold but kept by the original owner to still work for him for thirty days, and that owner killed him, is the original owner considered the actual owner since the slave is working for that master, however, they only have rights to the slave’s work, not his body. There are four opinions given, two of which match the previous debate. Rabbi Elazar is the author of the fourth opinion and two other braitot on related issues are brought and attributed to Rabbi Elazar. The Mishna deals with humiliation payments and sets the amount for certain actions that cause humiliation only, such as pulling one’s hair, spitting in one’s face, and uncovering a woman’s hair in the marketplace. A story is told of one who did the latter infringement and tried to get out of it by tricking the woman into uncovering her hair and then trying to prove that she doesn’t care about having her hair uncovered in public. However, Rabbi Akiva did not accept this as there is a difference between one deciding to uncover one’s hair and someone else doing it. Are the amounts mentioned in the Mishna for humiliation payment in the Tzuri or medina currency (valued at 1/8 of the Tzuri)? Based on a story with Rabbi Yehuda Nesia, it is Tzuri currency. Once the story was brought up, the Gemara grapples to understand Rabbi Yehuda’s ruling in the story when he said, “This is me and this is Rabbi Yosi haGelili who held 100 Tzuri coins. When he said “This is me,” did he mean, I saw it with my own eyes, thereby implying that a witness can also be a judge, as he ruled in the case? This would be difficult as Rabbi Tarfon and Rabbi Akiva both hold that a witness cannot be a judge. There are two possible resolutions. Did Rabbi Akiva really hold that a witness cannot be a judge? A source seems to indicate otherwise. However, this is resolved.

ื”ืงื“ืฉ ื—ืžืฅ ื•ืฉื—ืจื•ืจ ืžืคืงื™ืขื™ื ืžื™ื“ื™ ืฉื™ืขื‘ื•ื“


Consecration of an item to the Temple, the advent of the prohibition of leavened bread taking effect upon a leavened food, and the emancipation of a slave abrogate any lien that exists upon them. Therefore, the emancipation of a slave resulting from the knocking out of his tooth or the blinding of his eye abrogates the lien that the husband has on the slave as usufruct property, leaving the woman as the solitary owner.


ืœื™ืžื ื“ืจื‘ื ืชื ืื™ ื”ื™ื ืœื ื“ื›ื•ืœื™ ืขืœืžื ืื™ืช ืœื”ื• ื“ืจื‘ื ื•ื”ื›ื ืืœืžื•ื” ืจื‘ื ืŸ ืœืฉื™ืขื‘ื•ื“ื ื“ื‘ืขืœ


The Gemara questions this explanation: Shall we say that this statement of Rava is a dispute between tannaโ€™im? According to this explanation, the baraita that states that the slave is not emancipated when he is struck by the woman holds that the lien of the husband is not abrogated, which would run counter to the statement of Rava. The Gemara responds: No; it is the case that everyone agrees with the statement of Rava that a lien is abrogated, and here the reason why the baraita holds that the husbandโ€™s lien on the slave is not abrogated is that the Sages strengthened the lien of a husband on his wifeโ€™s property, and it is only this type of lien that is not abrogated by emancipation.


ื•ืื™ื‘ืขื™ืช ืื™ืžื ื“ื›ื•ืœื™ ืขืœืžื ืœื™ืช ืœื”ื• ืœื”ื ื™ ืชื ืื™ ืชืงื ืช ืื•ืฉื ื•ื”ื›ื ื‘ืงื ื™ืŸ ืคื™ืจื•ืช ื›ืงื ื™ืŸ ื”ื’ื•ืฃ ื“ืžื™ ืงืžื™ืคืœื’ื™


And if you wish, say instead that everyone agrees that these tannaโ€™im of the two baraitot hold that there is no ordinance of Usha, and here, they disagree with regard to the question whether ownership of the rights to use an item and to its produce is like ownership of the item itself. In this case, the husband enjoys the usage of the slave while the wife owns the slave himself. The baraita that rules that the slave is not emancipated when struck by the woman holds that the husband is also considered to be an owner, and the baraita that rules that the slave is emancipated when struck by the woman holds that the husband is not considered to be an owner.


ื•ื‘ืคืœื•ื’ืชื ื“ื”ื ื™ ืชื ืื™ ื“ืชื ื™ื ื”ืžื•ื›ืจ ืขื‘ื“ื• ืœืื—ืจ ื•ืคืกืง ืขืžื• ืขืœ ืžื ืช ืฉื™ืฉืžืฉื ื• ืฉืœืฉื™ื ื™ื•ื


And the dispute with regard to the question whether ownership of the rights to use an item and to its produce is like ownership of the item itself is with regard to the issue that is the subject of the dispute between these tannaโ€™im, as it is taught in a baraita: In the case of one who sells his Canaanite slave to another, and he contracted with him that the sale is effected on the condition that the slave will serve the seller for thirty days before he is transferred to the purchaser, the outcome of this sale is that during those thirty days, the original master enjoys the usage of the slave and the purchaser is the owner of the slave.


ืจื‘ื™ ืžืื™ืจ ืื•ืžืจ ืจืืฉื•ืŸ ื™ืฉื ื• ื‘ื“ื™ืŸ ื™ื•ื ืื• ื™ื•ืžื™ื ืžืคื ื™ ืฉื”ื•ื ืชื—ืชื™ื• ืงืกื‘ืจ ืงื ื™ืŸ ืคื™ืจื•ืช ื›ืงื ื™ืŸ ื”ื’ื•ืฃ ื“ืžื™


As detailed in the Torah (Exodus 21:18โ€“21), if one strikes another and the injury leads directly to the victimโ€™s death, the one who struck him is liable to receive court-imposed capital punishment. This ruling does not apply in the case where a master strikes his Canaanite slave and the slave lingers with his injuries for more than a day or two and then dies, in which case the master is exempt from court-imposed capital punishment. The baraita addresses who is considered the owner of the slave with regard to this latter halakha. Rabbi Meir says that during those thirty days, only the first owner is included in the halakha of: A day or two days. Rabbi Meir holds that in this case, the first owner is included in this exemption, because the slave is under his authority, as he enjoys the usage of the slave, and he holds that ownership of the rights to use an item and to its produce is like ownership of the item itself. The status of the first owner as the owner also negates the possibility that the second owner would be regarded as the owner with regard to this halakha, and he would not be included in the exemption.


ืจื‘ื™ ื™ื”ื•ื“ื” ืื•ืžืจ ืฉื ื™ ื™ืฉื ื• ื‘ื“ื™ืŸ ื™ื•ื ืื• ื™ื•ืžื™ื ืžืคื ื™ ืฉื”ื•ื ื›ืกืคื• ืงืกื‘ืจ ืงื ื™ืŸ ืคื™ืจื•ืช ืœืื• ื›ืงื ื™ืŸ ื”ื’ื•ืฃ ื“ืžื™


The baraita continues. Rabbi Yehuda says that only the second owner is included in the halakha of: A day or two days, because the slave is his money, i.e., property, but the first owner is not included in the halakha of: A day or two days, as he holds that ownership of the rights to use an item and to its produce is not like ownership of the item itself. Therefore, the first owner does not have the status of an owner with regard to this halakha.


ืจื‘ื™ ื™ื•ืกื™ ืื•ืžืจ ืฉื ื™ื”ื ื™ืฉื ืŸ ื‘ื“ื™ืŸ ื™ื•ื ืื• ื™ื•ืžื™ื ื–ื” ืžืคื ื™ ืฉื”ื•ื ืชื—ืชื™ื• ื•ื–ื” ืžืคื ื™ ืฉื”ื•ื ื›ืกืคื• ืžืกืคืงื ืœื™ื” ืงื ื™ืŸ ืคื™ืจื•ืช ืื™ ื›ืงื ื™ืŸ ื”ื’ื•ืฃ ื“ืžื™ ืื™ ืœืื• ื›ืงื ื™ืŸ ื”ื’ื•ืฃ ื“ืžื™ ื•ืกืคืง ื ืคืฉื•ืช ืœื”ืงืœ


The baraita continues. Rabbi Yosei says that both of them are included in the halakha of: A day or two days. This one, the first owner, is included because the slave is under his authority, and that one, the second owner, is included because the slave is his money. The Gemara explains the reasoning of Rabbi Yosei: He is uncertain, with regard to ownership of the rights to use an item and to its produce, if it is like ownership of the item itself, in which case only the first owner would be exempt, or if it is not like ownership of the item itself, in which case only the second owner would be exempt. And where there is an uncertainty in a case of capital law, the ruling is to be lenient. Therefore, neither of them would receive court-imposed capital punishment in this case.


ืจื‘ื™ ืืœื™ืขื–ืจ ืื•ืžืจ ืฉื ื™ื”ื ืื™ื ืŸ ื‘ื“ื™ืŸ ื™ื•ื ืื• ื™ื•ืžื™ื ื–ื” ืœืคื™ ืฉืื™ื ื• ืชื—ืชื™ื• ื•ื–ื” ืœืคื™ ืฉืื™ื ื• ื›ืกืคื•


The baraita continues. Rabbi Eliezer says that both of them are not included in the halakha of: A day or two days, and both would receive court-imposed capital punishment. This one, the second owner, would be liable to receive it because the slave is not under his authority, and that one, the first owner, would receive it because the slave is not his money. Rabbi Eliezer holds that one is required both to own the slave himself and enjoy the usage of the slave to be included in the exemption.


ืืžืจ ืจื‘ื ืžืื™ ื˜ืขืžื ื“ืจื‘ื™ ืืœื™ืขื–ืจ ืืžืจ ืงืจื ื›ื™ ื›ืกืคื• ื”ื•ื ื›ืกืคื• ื”ืžื™ื•ื—ื“ ืœื•


The Gemara notes that Rava said: What is the reason for the opinion of Rabbi Eliezer? The verse states: โ€œNotwithstanding if he continue a day or two, he shall not be punished; for he is his moneyโ€ (Exodus 21:21), and Rabbi Eliezer understands this to be referring to a slave that is his money alone, a slave that is unique to him, and therefore this exemption does not apply to one who does not have total ownership of the slave.


ื›ืžืืŸ ืื–ืœื ื”ื ื“ืืžืจ ืืžื™ืžืจ ืื™ืฉ ื•ืืฉื” ืฉืžื›ืจื• ื‘ื ื›ืกื™ ืžืœื•ื’ ืœื ืขืฉื• ื•ืœื ื›ืœื•ื ื›ืžืืŸ ื›ืจื‘ื™ ืืœื™ืขื–ืจ


The Gemara asks: In accordance with whose opinion is that which Ameimar says: If there was a man or a woman, i.e., a husband or a wife, who sold the wifeโ€™s usufruct property, which is owned by the wife but used by the husband, they did not accomplish anything, as the sale does not take effect? In accordance with whose opinion is his statement? It is in accordance with the opinion of Rabbi Eliezer, who holds that one is considered to be an owner only if he both owns the item itself and enjoys the usage of that item.


ืžืืŸ ืชื ื ืœื”ื ื“ืชื ื• ืจื‘ื ืŸ ืžื™ ืฉื—ืฆื™ื• ืขื‘ื“ ื•ื—ืฆื™ื• ื‘ืŸ ื—ื•ืจื™ืŸ ื•ื›ืŸ ืขื‘ื“ ืฉืœ ืฉื ื™ ืฉื•ืชืคื™ืŸ ืื™ืŸ ื™ื•ืฆืื™ืŸ ื‘ืจืืฉื™ ืื‘ืจื™ื ืฉืื™ื ืŸ ื—ื•ื–ืจื™ืŸ ืืžืจ ืœื™ื” ืจื‘ ืžืจื“ื›ื™ ืœืจื‘ ืืฉื™ ื”ื›ื™ ืืžืจื™ ืžืฉืžื™ื” ื“ืจื‘ื ืจื‘ื™ ืืœื™ืขื–ืจ ื”ื™ื


The Gemara asks: Who is the tanna who taught that which the Sages taught: One who is a half-slave half-freeman, and similarly, a slave belonging to two partners, are not emancipated when injured by one of their owners in one of their extremities that do not regenerate, i.e., the twenty-four extremities whose injury by an owner emancipates a slave? Rav Mordekhai said to Rav Ashi: This is what the Sages say in the name of Rava: It is in accordance with the opinion of Rabbi Eliezer.


ืžื™ ืœื ืืžืจ ืจื‘ื™ ืืœื™ืขื–ืจ ื›ืกืคื• ื”ืžื™ื•ื—ื“ ืœื• ื”ื›ื ื ืžื™ ืขื‘ื“ื• ื”ืžื™ื•ื—ื“ ืœื•


He explains: Didnโ€™t Rabbi Eliezer say that the term โ€œhis moneyโ€ indicates a slave that is unique to him? Here too, since the verse states with regard to the emancipation of a slave resulting from his master striking him: โ€œAnd if a man smite the eye of his slaveโ€ (Exodus 21:26), this is referring to his slave that is unique to him. Therefore, this halakha of emancipation would not apply to a slave not fully owned by one master.


ืžืชื ื™ืณ ื”ืชื•ืงืข ืœื—ื‘ื™ืจื• ื ื•ืชืŸ ืœื• ืกืœืข ืจื‘ื™ ื™ื”ื•ื“ื” ืื•ืžืจ ืžืฉื•ื ืจื‘ื™ ื™ื•ืกื™ ื”ื’ืœื™ืœื™ ืžื ื” ืกื˜ืจื• ื ื•ืชืŸ ืœื• ืžืืชื™ื ื–ื•ื– ืœืื—ืจ ื™ื“ื• ื ื•ืชืŸ ืœื• ืืจื‘ืข ืžืื•ืช ื–ื•ื–


MISHNA: One who strikes another must give him a sela. Rabbi Yehuda says in the name of Rabbi Yosei HaGelili that he must give him one hundred dinars. If he slapped another on the cheek, he must give him two hundred dinars. If he slapped him on the cheek with the back of his hand, which is more degrading than a slap with the palm, he must give him four hundred dinars.


ืฆืจื ื‘ืื–ื ื• ืชืœืฉ ื‘ืฉืขืจื• ืจืงืง ื•ื”ื’ื™ืข ื‘ื• ืจื•ืงื• ื”ืขื‘ื™ืจ ื˜ืœื™ืชื• ืžืžื ื• ืคืจืข ืจืืฉ ื”ืืฉื” ื‘ืฉื•ืง ื ื•ืชืŸ ืœื• ืืจื‘ืข ืžืื•ืช ื–ื•ื–


If he pulled his ear, or pulled out his hair, or spat at him and his spittle reached him, or if he removed the otherโ€™s cloak from him, or if he uncovered the head of a woman in the marketplace, in all of these cases, he must give the injured party four hundred dinars.


ื–ื” ื”ื›ืœืœ ื”ื›ืœ ืœืคื™ ื›ื‘ื•ื“ื• ืืžืจ ืจื‘ื™ ืขืงื™ื‘ื ืืคื™ืœื• ืขื ื™ื™ื ืฉื‘ื™ืฉืจืืœ ืจื•ืื™ืŸ ืื•ืชื ื›ืื™ืœื• ื”ื ื‘ื ื™ ื—ื•ืจื™ืŸ ืฉื™ืจื“ื• ืžื ื›ืกื™ื”ื ืฉื”ื ื‘ื ื™ ืื‘ืจื”ื ื™ืฆื—ืง ื•ื™ืขืงื‘


This is the principle of assessing payment for humiliation caused to another: It is all evaluated in accordance with the honor of the one who was humiliated, as the Gemara will explain. Rabbi Akiva said: Even with regard to the poor among the Jewish people, they are viewed as though they were freemen who lost their property and were impoverished. And their humiliation is calculated according to this status, as they are the children of Abraham, Isaac, and Jacob, and are all of prominent lineage.


ื•ืžืขืฉื” ื‘ืื—ื“ ืฉืคืจืข ืจืืฉ ื”ืืฉื” ื‘ืฉื•ืง ื‘ืืช ืœืคื ื™ ืจื‘ื™ ืขืงื™ื‘ื ื•ื—ื™ื™ื‘ื• ืœื™ืชืŸ ืœื” ืืจื‘ืข ืžืื•ืช ื–ื•ื– ืืžืจ ืœื• ืจื‘ื™ ืชืŸ ืœื™ ื–ืžืŸ ื•ื ืชืŸ ืœื• ื–ืžืŸ


The mishna relates: And an incident occurred involving one who uncovered the head of a woman in the marketplace, and the woman came before Rabbi Akiva to request that he render the assailant liable to pay for the humiliation that she suffered, and Rabbi Akiva rendered the assailant liable to give her four hundred dinars. The man said to Rabbi Akiva: My teacher, give me time to pay the penalty, and Rabbi Akiva gave him time.


ืฉืžืจื” ืขื•ืžื“ืช ืขืœ ืคืชื— ื—ืฆืจื” ื•ืฉื‘ืจ ืืช ื”ื›ื“ ื‘ืคื ื™ื” ื•ื‘ื• ื›ืื™ืกืจ ืฉืžืŸ ื’ื™ืœืชื” ืืช ืจืืฉื” ื•ื”ื™ืชื” ืžื˜ืคื—ืช ื•ืžื ื—ืช ื™ื“ื” ืขืœ ืจืืฉื”


The man then waited for her until she was standing by the opening of her courtyard, and he broke a jug in front of her, and there was the value of about an issar of oil inside the jug. The woman then exposed her own head and she was wetting [metapaแธฅat] her hand in the oil, and placing her hand on her head to make use of the oil.


ื”ืขืžื™ื“ ืขืœื™ื” ืขื“ื™ื ื•ื‘ื ืœืคื ื™ ืจื‘ื™ ืขืงื™ื‘ื ืืžืจ ืœื• ืœื–ื• ืื ื™ ื ื•ืชืŸ ืืจื‘ืข ืžืื•ืช ื–ื•ื–


The man set up witnesses to observe her actions, and he came before Rabbi Akiva, and he said to him: Will I give four hundred dinars to this woman for having uncovered her head? By uncovering her head for a minimal benefit, she has demonstrated that this does not cause her humiliation.


ืืžืจ ืœื• ืœื ืืžืจืช ื›ืœื•ื ื”ื—ื•ื‘ืœ ื‘ืขืฆืžื• ืืฃ ืขืœ ืคื™ ืฉืื™ื ื• ืจืฉืื™ ืคื˜ื•ืจ ืื—ืจื™ื ืฉื—ื‘ืœื• ื‘ื• ื—ื™ื™ื‘ื™ื ื•ื”ืงื•ืฆืฅ ื ื˜ื™ืขื•ืชื™ื• ืืฃ ืขืœ ืคื™ ืฉืื™ื ื• ืจืฉืื™ ืคื˜ื•ืจ ืื—ืจื™ื ื—ื™ื™ื‘ื™ืŸ


Rabbi Akiva said to him: You did not say anything, i.e., this claim will not exempt you. One who injures himself, although it is not permitted for him to do so, is nevertheless exempt from any sort of penalty, but others who injured him are liable to pay him. In this case as well, the man was liable to compensate the woman for shaming her, despite the fact that she did the same to herself. Similarly, one who cuts down his own saplings, although it is not permitted for him to do so, as this violates the prohibition of: โ€œYou shall not destroyโ€ (see Deuteronomy 20:19), is exempt from any penalty, but others who cut down his saplings are liable to pay him.


ื’ืžืณ ืื™ื‘ืขื™ื ืœื”ื• ืžื ื” ืฆื•ืจื™ ืชื ืŸ ืื• ืžื ื” ืžื“ื™ื ื” ืชื ืŸ


GEMARA: The mishna teaches that according to the opinion of Rabbi Yosei HaGelili, one who strikes another must pay him one hundred dinars. The Gemara clarifies this opinion. A dilemma was raised before the Sages: Did we learn in the mishna that he must pay one hundred dinars of Tyrian coinage, or did we learn in the mishna that he must pay one hundred dinars of state coinage, which is worth one-eighth of Tyrian coinage, i.e., twelve and a half dinars of Tyrian coinage?


ืชื ืฉืžืข ื“ื”ื”ื•ื ื’ื‘ืจื ื“ืชืงืข ืœื™ื” ืœื—ื‘ืจื™ื” ืืชื ืœืงืžื™ื” ื“ืจื‘ื™ ื™ื”ื•ื“ื” ื ืฉื™ืื” ืืžืจ ืœื™ื” ื”ื ืื ื ื”ื ืจื‘ื™ ื™ื•ืกื™ ื”ื’ืœื™ืœื™ ื”ื‘ ืœื™ื” ืžื ื” ืฆื•ืจื™ ืฉืžืข ืžื™ื ื” ืžื ื” ืฆื•ืจื™ ืชื ืŸ ืฉืžืข ืžื™ื ื”


The Gemara answers: Come and hear a proof: It happened that there was a certain man who struck another man, and the latter came before Rabbi Yehuda Nesia to request an assessment for the humiliation he suffered. Rabbi Yehuda Nesia said to the assailant: This is I, and this is Rabbi Yosei HaGelili. Give him one hundred dinars of Tyrian coinage. The Gemara suggests: Conclude from the incident that we learned in the mishna he must pay one hundred dinars of Tyrian coinage. The Gemara affirms: Conclude from it that it is so.


ืžืื™ ื”ื ืื ื ื”ื ืจื‘ื™ ื™ื•ืกื™ ื”ื’ืœื™ืœื™ ืื™ืœื™ืžื ื”ื›ื™ ืงืืžืจ ืœื™ื” ื”ื ืื ื ื“ื—ื–ื™ืชืš ื•ื”ื ืจื‘ื™ ื™ื•ืกื™ ื”ื’ืœื™ืœื™ ื“ืืžืจ ืžื ื” ืฆื•ืจื™ ื–ื™ืœ ื”ื‘ ืœื™ื” ืžื ื” ืฆื•ืจื™ ืœืžื™ืžืจื ื“ืขื“ ื ืขืฉื” ื“ื™ื™ืŸ


The Gemara clarifies: What did Rabbi Yehuda Nesia mean when he stated: This is I, and this is Rabbi Yosei HaGelili? If we say that this is what Rabbi Yehuda Nesia said to the assailant: This is I, who saw you strike the man, and this is the opinion of Rabbi Yosei HaGelili, who says that the penalty for this act is one hundred dinars of Tyrian coinage; therefore, go and give him one hundred dinars of Tyrian coinage, is this to say that a witness can become a judge, i.e., that one who witnessed an event can himself serve as a judge concerning the matter, and consequently Rabbi Yehuda Nesia was able to act as both witness and judge in the same case?


ื•ื”ืชื ื™ื ืกื ื”ื“ืจื™ืŸ ืฉืจืื• ืื—ื“ ืฉื”ืจื’ ืืช ื”ื ืคืฉ ืžืงืฆืชืŸ ื ืขืฉื• ืขื“ื™ื ื•ืžืงืฆืชืŸ ื ืขืฉื• ื“ื™ื™ื ื™ืŸ ื“ื‘ืจื™ ืจื‘ื™ ื˜ืจืคื•ืŸ ืจื‘ื™ ืขืงื™ื‘ื ืื•ืžืจ ื›ื•ืœื ืขื“ื™ื ื”ื ื•ืื™ืŸ ืขื“ ื ืขืฉื” ื“ื™ื™ืŸ


But isnโ€™t it taught in a baraita that if there was a Sanhedrin that saw one kill another person, some of them have become witnesses and testify before the others, and some of them have become judges to issue a verdict; this is the statement of Rabbi Tarfon. Rabbi Akiva says: They are all witnesses to the act, and a witness cannot become a judge.


ืขื“ ื›ืืŸ ืœื ืงืืžืจ ืจื‘ื™ ื˜ืจืคื•ืŸ ืืœื ื“ืžืงืฆืชืŸ ื ืขืฉื• ืขื“ื™ื ื•ืžืงืฆืชืŸ ื ืขืฉื• ื“ื™ื™ื ื™ืŸ ืื‘ืœ ืขื“ ื ืขืฉื” ื“ื™ื™ืŸ ืœื ืงืืžืจ


The Gemara infers from this baraita that even Rabbi Tarfon says his opinion only in a case where some of the members of the Sanhedrin have become witnesses and some of them have become judges, but he did not say that a witness becomes a judge without anyone else testifying. All the more so according to the opinion of Rabbi Akiva would it not be permitted for Rabbi Yehuda Nesia to act as a judge as well as serving as a witness.


ื›ื™ ืชื ื™ื ื”ื”ื™ื ื›ื’ื•ืŸ ืฉืจืื• ื‘ืœื™ืœื” ื“ืœื ืœืžืขื‘ื“ ื“ื™ื ื ื ื™ื ื”ื•


The Gemara rejects this: One could say that when that baraita is taught, it is taught in a case where the Sanhedrin saw the murder at night, at which time it is not permitted for them to practice judgment, since cases of capital law may be judged only during the daytime. They were therefore not functioning as judges at that time. On the following day, testimony must be heard from some, now acting as witnesses, in front of the others, now acting as judges. By contrast, in the case of Rabbi Yehuda Nesia, he was able to serve as both the witness and the judge, as he witnessed the event while functioning as a judge.


ื•ืื™ื‘ืขื™ืช ืื™ืžื ื”ื›ื™ ืงืืžืจ ืœื™ื” ื”ื ืื ื ื“ืกื‘ื™ืจื ืœื™ ื›ืจื‘ื™ ื™ื•ืกื™ ื”ื’ืœื™ืœื™ ื“ืืžืจ ืžื ื” ืฆื•ืจื™ ื•ื”ื ืกื”ื“ื™ ื“ืžืกื”ื“ื™ ื‘ืš ื–ื™ืœ ื”ื‘ ืœื™ื” ืžื ื” ืฆื•ืจื™


The Gemara offers an alternative explanation: And if you wish, say instead that Rabbi Yehuda Nesia did not witness the incident, and this is what he said to the assailant: This is I, that I hold in accordance with the opinion of Rabbi Yosei HaGelili, who says that one hundred dinars of Tyrian coinage must be paid; and these are witnesses who testify concerning you that you struck the other. Therefore, go and give him one hundred dinars of Tyrian coinage.


ื•ืกื‘ืจ ืจื‘ื™ ืขืงื™ื‘ื ื“ืื™ืŸ ืขื“ ื ืขืฉื” ื“ื™ื™ืŸ


ยง The Gemara discusses the previously mentioned opinion of Rabbi Akiva: But does Rabbi Akiva hold that a witness cannot become a judge?


ื•ื”ืชื ื™ื ื•ื”ื›ื” ืื™ืฉ ืืช ืจืขื”ื• ื‘ืื‘ืŸ ืื• ื‘ืื’ืจืฃ ืฉืžืขื•ืŸ ื”ืชื™ืžื ื™ ืื•ืžืจ ืžื” ืื’ืจื•ืฃ ืžื™ื•ื—ื“ ืฉืžืกื•ืจ ืœืขื“ื” ื•ืœืขื“ื™ื ืืฃ ื›ืœ ืฉืžืกื•ืจ ืœืขื“ื” ื•ืœืขื“ื™ื ืคืจื˜ ืœืฉื™ืฆืชื” ืžืชื—ืช ื™ื“ ื”ืขื“ื™ื


But isnโ€™t it taught in a baraita (Tosefta, Sanhedrin 12:3) with regard to what is stated in the Torah concerning injuries: โ€œAnd if men contend, and one smite the other with a stone, or with his fistโ€ (Exodus 21:18), that Shimon HaTimni says: Just as a fist is unique in that it is submitted to the assembly of judges to assess its ability to injure and to the witnesses who attest that it was the fist used to strike, as a fist remains attached to the assailant, so too, a ruling can be issued in the case of any item that is submitted to the assembly of judges to assess its ability to injure and to the witnesses who attest that this was the item used to strike? This serves to exclude a case where the stone that injured left the possession of the witnesses and is not available to be inspected by the court to assess if it is capable of causing the purported injury.


ืืžืจ ืœื• ืจื‘ื™ ืขืงื™ื‘ื ื•ื›ื™ ื‘ืคื ื™ ื‘ื™ืช ื“ื™ืŸ ื”ื›ื”ื• ืฉื™ื•ื“ืขื™ืŸ ื›ืžื” ื”ื›ื”ื• ื•ืขืœ ืžื” ื”ื›ื”ื• ืื ืขืœ ืฉื•ืงื• ืื• ืฆื™ืคืจ ื ืคืฉื•


Rabbi Akiva said to him: But is it the case that in all incidents of injury the assailant struck him in the presence of the court, so that they know exactly how hard he struck him and on what part of the body he struck him, e.g., if he struck him on his thigh or if he struck him on the lobe of his heart? Rather, the court relies on witnesses to testify about the injury. Therefore, the witnesses should be able to testify about the item used as well.


ื•ืขื•ื“ ื”ืจื™ ืฉื“ื—ืฃ ืืช ื—ื‘ื™ืจื• ืžืจืืฉ ื”ื’ื’ ืื• ืžืจืืฉ ื”ื‘ื™ืจื” ื•ืžืช ื‘ื™ืช ื“ื™ืŸ ื”ื•ืœื›ื™ืŸ ืืฆืœ ื‘ื™ืจื” ืื• ื‘ื™ืจื” ื”ื•ืœื›ืช ืืฆืœ ื‘ื™ืช ื“ื™ืŸ ื•ืขื•ื“ ืื ื ืคืœื” ื—ื•ื–ืจ ื•ื‘ื•ื ื”


And furthermore, if there was one who pushed another from the top of the roof or from the top of a building, and the one who was pushed died as a result of the fall, do the members of the court go to the building to inspect how high it is, or does the building go to the court? Obviously neither, and the court relies upon the testimony of witnesses who state how tall the building is. And furthermore, if the building collapsed, must the court rebuild it in order to assess its height? The witnesses should then be able to testify about the item used as well.


ืืœื ืžื” ืื’ืจื•ืฃ ืžื™ื•ื—ื“ ืฉื”ื•ื ืžืกื•ืจ ืœืขื“ื™ื ืืฃ ื›ืœ ืฉื”ื•ื ืžืกื•ืจ ืœืขื“ื™ื


Rather, Rabbi Akiva interprets the verse differently: Just as a fist is unique in that it is submitted to the witnesses for them to testify about it, so too, a ruling can be issued in the case of any item that is submitted to the witnesses to testify about, despite the itemโ€™s not being available for the court to assess.


ืคืจื˜ ืœื›ืฉื™ืฆืชื” ืื‘ืŸ ืžืชื—ืช ื™ื“ื• ืฉืœ ืžื›ื” ืคื˜ื•ืจ


This serves to exclude a case where the stone that injured left the possession of the assailant and cannot be found, and even the witnesses were unable to see it. In such a case the assailant is exempt from payment, since even the witnesses cannot testify about whether the stone was capable of inflicting the purported injuries.


ืงืชื ื™ ืžื™ื”ืช ืืžืจ ืœื• ืจื‘ื™ ืขืงื™ื‘ื ื•ื›ื™ ื‘ืคื ื™ ื‘ื™ืช ื“ื™ืŸ ื”ื›ื”ื• ืฉื™ื•ื“ืขื™ืŸ ื›ืžื” ื”ื›ื”ื• ื”ื ื”ื›ื”ื• ื‘ืคื ื™ื”ื ืขื“ ื ืขืฉื” ื“ื™ื™ืŸ


The Gemara states its question: In any event, it teaches that Rabbi Akiva said to Shimon HaTimni: Are all cases of injury such that the assailant struck him in the presence of the court so that they know exactly how hard he struck him? It can be inferred from this that if he did in fact strike him in front of them, Rabbi Akiva would agree that a witness can become a judge. This contradicts the opinion of Rabbi Akiva in the baraita, that a witness cannot become a judge.


ืœื“ื‘ืจื™ื• ื“ืจื‘ื™ ืฉืžืขื•ืŸ ื”ืชื™ืžื ื™ ืงืืžืจ ื•ืœื™ื” ืœื ืกื‘ื™ืจื ืœื™ื”


The Gemara answers that there is no proof as to the opinion of Rabbi Akiva, since it may be that he stated his refutation in accordance with the statement of Shimon HaTimni, but he himself does not hold accordingly. Perhaps Rabbi Akiva himself holds that if the court had witnessed the act, they would not be able to render judgment concerning it.


ืชื ื• ืจื‘ื ืŸ ืฉื•ืจ ืชื ืฉื”ืžื™ืช ื•ื”ื–ื™ืง ื“ื ื™ืŸ ืื•ืชื• ื“ื™ื ื™ ื ืคืฉื•ืช ื•ืื™ืŸ ื“ื ื™ืŸ ืื•ืชื• ื“ื™ื ื™ ืžืžื•ื ื•ืช


The Gemara quotes a related halakha. The Sages taught: In the case of an innocuous ox that killed a person and subsequently went and caused damage, the court judges it as a case of capital law and the ox is killed, and the court does not judge it as a case of monetary law, despite the damage that it caused.


ืžื•ืขื“ ืฉื”ืžื™ืช ื•ื”ื–ื™ืง ื“ื ื™ืŸ ืื•ืชื• ื“ื™ื ื™ ืžืžื•ื ื•ืช ื•ื—ื•ื–ืจื™ืŸ ื•ื“ื ื™ืŸ ืื•ืชื• ื“ื™ื ื™ ื ืคืฉื•ืช ืงื“ืžื• ื•ื“ื ื•ื”ื• ื“ื™ื ื™ ื ืคืฉื•ืช ืื™ืŸ ื—ื•ื–ืจื™ืŸ ื•ื“ื ื™ืŸ ืื•ืชื• ื“ื™ื ื™ ืžืžื•ื ื•ืช


By contrast, in the case of a forewarned ox that killed a person and subsequently went and caused damage, the court judges it as a case of monetary law, and the owner is liable to pay for the damage it caused, and then the court goes back and judges it again as a case of capital law, and the ox is killed. But if the court proceeded and judged it first as a case of capital law, the court does not go back and judge it again as a case of monetary law, since it has already been sentenced to be killed.


ื•ื›ื™ ืงื“ืžื• ื•ื“ื ื•ื”ื• ื“ื™ื ื™ ื ืคืฉื•ืช ืžืื™ ื”ื•ื™ ืœื™ื”ื“ืจ ื•ืœื™ื“ื™ื™ื ื™ื” ื ืžื™ ืžืžื•ื ื•ืช


The Gemara asks: And if they proceeded and judged it first as a case of capital law, what of it? Let them go back and judge it again also as a case of monetary law.


ืืžืจ ืจื‘ื ืืฉื›ื—ืชื™ื ื”ื• ืœืจื‘ื ืŸ ื“ื‘ื™ ืจื‘ ื“ื™ืชื‘ื™ ื•ืงืืžืจื™ ื”ื ืžื ื™ ืจื‘ื™ ืฉืžืขื•ืŸ ื”ืชื™ืžื ื™ ื”ื™ื ื“ืืžืจ ืžื” ืื’ืจื•ืฃ ืžื™ื•ื—ื“ ืฉืžืกื•ืจ ืœืขื“ื” ื•ืœืขื“ื™ื


Rava said: I found the Sages of the school of Rav who were sitting and saying to explain this: In accordance with whose opinion is this? It is in accordance with the opinion of Rabbi Shimon HaTimni, who says that just as a fist is unique in that it is submitted to the assembly of judges to assess its ability to injure and to the witnesses to attest that this was the fist used to strike, so too, a ruling can be issued in the case of any item that is submitted to the assembly of judges to assess its ability to injure and to the witnesses to attest that this was the item used to strike.


  • Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.

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ื”ืงื“ืฉ ื—ืžืฅ ื•ืฉื—ืจื•ืจ ืžืคืงื™ืขื™ื ืžื™ื“ื™ ืฉื™ืขื‘ื•ื“


Consecration of an item to the Temple, the advent of the prohibition of leavened bread taking effect upon a leavened food, and the emancipation of a slave abrogate any lien that exists upon them. Therefore, the emancipation of a slave resulting from the knocking out of his tooth or the blinding of his eye abrogates the lien that the husband has on the slave as usufruct property, leaving the woman as the solitary owner.


ืœื™ืžื ื“ืจื‘ื ืชื ืื™ ื”ื™ื ืœื ื“ื›ื•ืœื™ ืขืœืžื ืื™ืช ืœื”ื• ื“ืจื‘ื ื•ื”ื›ื ืืœืžื•ื” ืจื‘ื ืŸ ืœืฉื™ืขื‘ื•ื“ื ื“ื‘ืขืœ


The Gemara questions this explanation: Shall we say that this statement of Rava is a dispute between tannaโ€™im? According to this explanation, the baraita that states that the slave is not emancipated when he is struck by the woman holds that the lien of the husband is not abrogated, which would run counter to the statement of Rava. The Gemara responds: No; it is the case that everyone agrees with the statement of Rava that a lien is abrogated, and here the reason why the baraita holds that the husbandโ€™s lien on the slave is not abrogated is that the Sages strengthened the lien of a husband on his wifeโ€™s property, and it is only this type of lien that is not abrogated by emancipation.


ื•ืื™ื‘ืขื™ืช ืื™ืžื ื“ื›ื•ืœื™ ืขืœืžื ืœื™ืช ืœื”ื• ืœื”ื ื™ ืชื ืื™ ืชืงื ืช ืื•ืฉื ื•ื”ื›ื ื‘ืงื ื™ืŸ ืคื™ืจื•ืช ื›ืงื ื™ืŸ ื”ื’ื•ืฃ ื“ืžื™ ืงืžื™ืคืœื’ื™


And if you wish, say instead that everyone agrees that these tannaโ€™im of the two baraitot hold that there is no ordinance of Usha, and here, they disagree with regard to the question whether ownership of the rights to use an item and to its produce is like ownership of the item itself. In this case, the husband enjoys the usage of the slave while the wife owns the slave himself. The baraita that rules that the slave is not emancipated when struck by the woman holds that the husband is also considered to be an owner, and the baraita that rules that the slave is emancipated when struck by the woman holds that the husband is not considered to be an owner.


ื•ื‘ืคืœื•ื’ืชื ื“ื”ื ื™ ืชื ืื™ ื“ืชื ื™ื ื”ืžื•ื›ืจ ืขื‘ื“ื• ืœืื—ืจ ื•ืคืกืง ืขืžื• ืขืœ ืžื ืช ืฉื™ืฉืžืฉื ื• ืฉืœืฉื™ื ื™ื•ื


And the dispute with regard to the question whether ownership of the rights to use an item and to its produce is like ownership of the item itself is with regard to the issue that is the subject of the dispute between these tannaโ€™im, as it is taught in a baraita: In the case of one who sells his Canaanite slave to another, and he contracted with him that the sale is effected on the condition that the slave will serve the seller for thirty days before he is transferred to the purchaser, the outcome of this sale is that during those thirty days, the original master enjoys the usage of the slave and the purchaser is the owner of the slave.


ืจื‘ื™ ืžืื™ืจ ืื•ืžืจ ืจืืฉื•ืŸ ื™ืฉื ื• ื‘ื“ื™ืŸ ื™ื•ื ืื• ื™ื•ืžื™ื ืžืคื ื™ ืฉื”ื•ื ืชื—ืชื™ื• ืงืกื‘ืจ ืงื ื™ืŸ ืคื™ืจื•ืช ื›ืงื ื™ืŸ ื”ื’ื•ืฃ ื“ืžื™


As detailed in the Torah (Exodus 21:18โ€“21), if one strikes another and the injury leads directly to the victimโ€™s death, the one who struck him is liable to receive court-imposed capital punishment. This ruling does not apply in the case where a master strikes his Canaanite slave and the slave lingers with his injuries for more than a day or two and then dies, in which case the master is exempt from court-imposed capital punishment. The baraita addresses who is considered the owner of the slave with regard to this latter halakha. Rabbi Meir says that during those thirty days, only the first owner is included in the halakha of: A day or two days. Rabbi Meir holds that in this case, the first owner is included in this exemption, because the slave is under his authority, as he enjoys the usage of the slave, and he holds that ownership of the rights to use an item and to its produce is like ownership of the item itself. The status of the first owner as the owner also negates the possibility that the second owner would be regarded as the owner with regard to this halakha, and he would not be included in the exemption.


ืจื‘ื™ ื™ื”ื•ื“ื” ืื•ืžืจ ืฉื ื™ ื™ืฉื ื• ื‘ื“ื™ืŸ ื™ื•ื ืื• ื™ื•ืžื™ื ืžืคื ื™ ืฉื”ื•ื ื›ืกืคื• ืงืกื‘ืจ ืงื ื™ืŸ ืคื™ืจื•ืช ืœืื• ื›ืงื ื™ืŸ ื”ื’ื•ืฃ ื“ืžื™


The baraita continues. Rabbi Yehuda says that only the second owner is included in the halakha of: A day or two days, because the slave is his money, i.e., property, but the first owner is not included in the halakha of: A day or two days, as he holds that ownership of the rights to use an item and to its produce is not like ownership of the item itself. Therefore, the first owner does not have the status of an owner with regard to this halakha.


ืจื‘ื™ ื™ื•ืกื™ ืื•ืžืจ ืฉื ื™ื”ื ื™ืฉื ืŸ ื‘ื“ื™ืŸ ื™ื•ื ืื• ื™ื•ืžื™ื ื–ื” ืžืคื ื™ ืฉื”ื•ื ืชื—ืชื™ื• ื•ื–ื” ืžืคื ื™ ืฉื”ื•ื ื›ืกืคื• ืžืกืคืงื ืœื™ื” ืงื ื™ืŸ ืคื™ืจื•ืช ืื™ ื›ืงื ื™ืŸ ื”ื’ื•ืฃ ื“ืžื™ ืื™ ืœืื• ื›ืงื ื™ืŸ ื”ื’ื•ืฃ ื“ืžื™ ื•ืกืคืง ื ืคืฉื•ืช ืœื”ืงืœ


The baraita continues. Rabbi Yosei says that both of them are included in the halakha of: A day or two days. This one, the first owner, is included because the slave is under his authority, and that one, the second owner, is included because the slave is his money. The Gemara explains the reasoning of Rabbi Yosei: He is uncertain, with regard to ownership of the rights to use an item and to its produce, if it is like ownership of the item itself, in which case only the first owner would be exempt, or if it is not like ownership of the item itself, in which case only the second owner would be exempt. And where there is an uncertainty in a case of capital law, the ruling is to be lenient. Therefore, neither of them would receive court-imposed capital punishment in this case.


ืจื‘ื™ ืืœื™ืขื–ืจ ืื•ืžืจ ืฉื ื™ื”ื ืื™ื ืŸ ื‘ื“ื™ืŸ ื™ื•ื ืื• ื™ื•ืžื™ื ื–ื” ืœืคื™ ืฉืื™ื ื• ืชื—ืชื™ื• ื•ื–ื” ืœืคื™ ืฉืื™ื ื• ื›ืกืคื•


The baraita continues. Rabbi Eliezer says that both of them are not included in the halakha of: A day or two days, and both would receive court-imposed capital punishment. This one, the second owner, would be liable to receive it because the slave is not under his authority, and that one, the first owner, would receive it because the slave is not his money. Rabbi Eliezer holds that one is required both to own the slave himself and enjoy the usage of the slave to be included in the exemption.


ืืžืจ ืจื‘ื ืžืื™ ื˜ืขืžื ื“ืจื‘ื™ ืืœื™ืขื–ืจ ืืžืจ ืงืจื ื›ื™ ื›ืกืคื• ื”ื•ื ื›ืกืคื• ื”ืžื™ื•ื—ื“ ืœื•


The Gemara notes that Rava said: What is the reason for the opinion of Rabbi Eliezer? The verse states: โ€œNotwithstanding if he continue a day or two, he shall not be punished; for he is his moneyโ€ (Exodus 21:21), and Rabbi Eliezer understands this to be referring to a slave that is his money alone, a slave that is unique to him, and therefore this exemption does not apply to one who does not have total ownership of the slave.


ื›ืžืืŸ ืื–ืœื ื”ื ื“ืืžืจ ืืžื™ืžืจ ืื™ืฉ ื•ืืฉื” ืฉืžื›ืจื• ื‘ื ื›ืกื™ ืžืœื•ื’ ืœื ืขืฉื• ื•ืœื ื›ืœื•ื ื›ืžืืŸ ื›ืจื‘ื™ ืืœื™ืขื–ืจ


The Gemara asks: In accordance with whose opinion is that which Ameimar says: If there was a man or a woman, i.e., a husband or a wife, who sold the wifeโ€™s usufruct property, which is owned by the wife but used by the husband, they did not accomplish anything, as the sale does not take effect? In accordance with whose opinion is his statement? It is in accordance with the opinion of Rabbi Eliezer, who holds that one is considered to be an owner only if he both owns the item itself and enjoys the usage of that item.


ืžืืŸ ืชื ื ืœื”ื ื“ืชื ื• ืจื‘ื ืŸ ืžื™ ืฉื—ืฆื™ื• ืขื‘ื“ ื•ื—ืฆื™ื• ื‘ืŸ ื—ื•ืจื™ืŸ ื•ื›ืŸ ืขื‘ื“ ืฉืœ ืฉื ื™ ืฉื•ืชืคื™ืŸ ืื™ืŸ ื™ื•ืฆืื™ืŸ ื‘ืจืืฉื™ ืื‘ืจื™ื ืฉืื™ื ืŸ ื—ื•ื–ืจื™ืŸ ืืžืจ ืœื™ื” ืจื‘ ืžืจื“ื›ื™ ืœืจื‘ ืืฉื™ ื”ื›ื™ ืืžืจื™ ืžืฉืžื™ื” ื“ืจื‘ื ืจื‘ื™ ืืœื™ืขื–ืจ ื”ื™ื


The Gemara asks: Who is the tanna who taught that which the Sages taught: One who is a half-slave half-freeman, and similarly, a slave belonging to two partners, are not emancipated when injured by one of their owners in one of their extremities that do not regenerate, i.e., the twenty-four extremities whose injury by an owner emancipates a slave? Rav Mordekhai said to Rav Ashi: This is what the Sages say in the name of Rava: It is in accordance with the opinion of Rabbi Eliezer.


ืžื™ ืœื ืืžืจ ืจื‘ื™ ืืœื™ืขื–ืจ ื›ืกืคื• ื”ืžื™ื•ื—ื“ ืœื• ื”ื›ื ื ืžื™ ืขื‘ื“ื• ื”ืžื™ื•ื—ื“ ืœื•


He explains: Didnโ€™t Rabbi Eliezer say that the term โ€œhis moneyโ€ indicates a slave that is unique to him? Here too, since the verse states with regard to the emancipation of a slave resulting from his master striking him: โ€œAnd if a man smite the eye of his slaveโ€ (Exodus 21:26), this is referring to his slave that is unique to him. Therefore, this halakha of emancipation would not apply to a slave not fully owned by one master.


ืžืชื ื™ืณ ื”ืชื•ืงืข ืœื—ื‘ื™ืจื• ื ื•ืชืŸ ืœื• ืกืœืข ืจื‘ื™ ื™ื”ื•ื“ื” ืื•ืžืจ ืžืฉื•ื ืจื‘ื™ ื™ื•ืกื™ ื”ื’ืœื™ืœื™ ืžื ื” ืกื˜ืจื• ื ื•ืชืŸ ืœื• ืžืืชื™ื ื–ื•ื– ืœืื—ืจ ื™ื“ื• ื ื•ืชืŸ ืœื• ืืจื‘ืข ืžืื•ืช ื–ื•ื–


MISHNA: One who strikes another must give him a sela. Rabbi Yehuda says in the name of Rabbi Yosei HaGelili that he must give him one hundred dinars. If he slapped another on the cheek, he must give him two hundred dinars. If he slapped him on the cheek with the back of his hand, which is more degrading than a slap with the palm, he must give him four hundred dinars.


ืฆืจื ื‘ืื–ื ื• ืชืœืฉ ื‘ืฉืขืจื• ืจืงืง ื•ื”ื’ื™ืข ื‘ื• ืจื•ืงื• ื”ืขื‘ื™ืจ ื˜ืœื™ืชื• ืžืžื ื• ืคืจืข ืจืืฉ ื”ืืฉื” ื‘ืฉื•ืง ื ื•ืชืŸ ืœื• ืืจื‘ืข ืžืื•ืช ื–ื•ื–


If he pulled his ear, or pulled out his hair, or spat at him and his spittle reached him, or if he removed the otherโ€™s cloak from him, or if he uncovered the head of a woman in the marketplace, in all of these cases, he must give the injured party four hundred dinars.


ื–ื” ื”ื›ืœืœ ื”ื›ืœ ืœืคื™ ื›ื‘ื•ื“ื• ืืžืจ ืจื‘ื™ ืขืงื™ื‘ื ืืคื™ืœื• ืขื ื™ื™ื ืฉื‘ื™ืฉืจืืœ ืจื•ืื™ืŸ ืื•ืชื ื›ืื™ืœื• ื”ื ื‘ื ื™ ื—ื•ืจื™ืŸ ืฉื™ืจื“ื• ืžื ื›ืกื™ื”ื ืฉื”ื ื‘ื ื™ ืื‘ืจื”ื ื™ืฆื—ืง ื•ื™ืขืงื‘


This is the principle of assessing payment for humiliation caused to another: It is all evaluated in accordance with the honor of the one who was humiliated, as the Gemara will explain. Rabbi Akiva said: Even with regard to the poor among the Jewish people, they are viewed as though they were freemen who lost their property and were impoverished. And their humiliation is calculated according to this status, as they are the children of Abraham, Isaac, and Jacob, and are all of prominent lineage.


ื•ืžืขืฉื” ื‘ืื—ื“ ืฉืคืจืข ืจืืฉ ื”ืืฉื” ื‘ืฉื•ืง ื‘ืืช ืœืคื ื™ ืจื‘ื™ ืขืงื™ื‘ื ื•ื—ื™ื™ื‘ื• ืœื™ืชืŸ ืœื” ืืจื‘ืข ืžืื•ืช ื–ื•ื– ืืžืจ ืœื• ืจื‘ื™ ืชืŸ ืœื™ ื–ืžืŸ ื•ื ืชืŸ ืœื• ื–ืžืŸ


The mishna relates: And an incident occurred involving one who uncovered the head of a woman in the marketplace, and the woman came before Rabbi Akiva to request that he render the assailant liable to pay for the humiliation that she suffered, and Rabbi Akiva rendered the assailant liable to give her four hundred dinars. The man said to Rabbi Akiva: My teacher, give me time to pay the penalty, and Rabbi Akiva gave him time.


ืฉืžืจื” ืขื•ืžื“ืช ืขืœ ืคืชื— ื—ืฆืจื” ื•ืฉื‘ืจ ืืช ื”ื›ื“ ื‘ืคื ื™ื” ื•ื‘ื• ื›ืื™ืกืจ ืฉืžืŸ ื’ื™ืœืชื” ืืช ืจืืฉื” ื•ื”ื™ืชื” ืžื˜ืคื—ืช ื•ืžื ื—ืช ื™ื“ื” ืขืœ ืจืืฉื”


The man then waited for her until she was standing by the opening of her courtyard, and he broke a jug in front of her, and there was the value of about an issar of oil inside the jug. The woman then exposed her own head and she was wetting [metapaแธฅat] her hand in the oil, and placing her hand on her head to make use of the oil.


ื”ืขืžื™ื“ ืขืœื™ื” ืขื“ื™ื ื•ื‘ื ืœืคื ื™ ืจื‘ื™ ืขืงื™ื‘ื ืืžืจ ืœื• ืœื–ื• ืื ื™ ื ื•ืชืŸ ืืจื‘ืข ืžืื•ืช ื–ื•ื–


The man set up witnesses to observe her actions, and he came before Rabbi Akiva, and he said to him: Will I give four hundred dinars to this woman for having uncovered her head? By uncovering her head for a minimal benefit, she has demonstrated that this does not cause her humiliation.


ืืžืจ ืœื• ืœื ืืžืจืช ื›ืœื•ื ื”ื—ื•ื‘ืœ ื‘ืขืฆืžื• ืืฃ ืขืœ ืคื™ ืฉืื™ื ื• ืจืฉืื™ ืคื˜ื•ืจ ืื—ืจื™ื ืฉื—ื‘ืœื• ื‘ื• ื—ื™ื™ื‘ื™ื ื•ื”ืงื•ืฆืฅ ื ื˜ื™ืขื•ืชื™ื• ืืฃ ืขืœ ืคื™ ืฉืื™ื ื• ืจืฉืื™ ืคื˜ื•ืจ ืื—ืจื™ื ื—ื™ื™ื‘ื™ืŸ


Rabbi Akiva said to him: You did not say anything, i.e., this claim will not exempt you. One who injures himself, although it is not permitted for him to do so, is nevertheless exempt from any sort of penalty, but others who injured him are liable to pay him. In this case as well, the man was liable to compensate the woman for shaming her, despite the fact that she did the same to herself. Similarly, one who cuts down his own saplings, although it is not permitted for him to do so, as this violates the prohibition of: โ€œYou shall not destroyโ€ (see Deuteronomy 20:19), is exempt from any penalty, but others who cut down his saplings are liable to pay him.


ื’ืžืณ ืื™ื‘ืขื™ื ืœื”ื• ืžื ื” ืฆื•ืจื™ ืชื ืŸ ืื• ืžื ื” ืžื“ื™ื ื” ืชื ืŸ


GEMARA: The mishna teaches that according to the opinion of Rabbi Yosei HaGelili, one who strikes another must pay him one hundred dinars. The Gemara clarifies this opinion. A dilemma was raised before the Sages: Did we learn in the mishna that he must pay one hundred dinars of Tyrian coinage, or did we learn in the mishna that he must pay one hundred dinars of state coinage, which is worth one-eighth of Tyrian coinage, i.e., twelve and a half dinars of Tyrian coinage?


ืชื ืฉืžืข ื“ื”ื”ื•ื ื’ื‘ืจื ื“ืชืงืข ืœื™ื” ืœื—ื‘ืจื™ื” ืืชื ืœืงืžื™ื” ื“ืจื‘ื™ ื™ื”ื•ื“ื” ื ืฉื™ืื” ืืžืจ ืœื™ื” ื”ื ืื ื ื”ื ืจื‘ื™ ื™ื•ืกื™ ื”ื’ืœื™ืœื™ ื”ื‘ ืœื™ื” ืžื ื” ืฆื•ืจื™ ืฉืžืข ืžื™ื ื” ืžื ื” ืฆื•ืจื™ ืชื ืŸ ืฉืžืข ืžื™ื ื”


The Gemara answers: Come and hear a proof: It happened that there was a certain man who struck another man, and the latter came before Rabbi Yehuda Nesia to request an assessment for the humiliation he suffered. Rabbi Yehuda Nesia said to the assailant: This is I, and this is Rabbi Yosei HaGelili. Give him one hundred dinars of Tyrian coinage. The Gemara suggests: Conclude from the incident that we learned in the mishna he must pay one hundred dinars of Tyrian coinage. The Gemara affirms: Conclude from it that it is so.


ืžืื™ ื”ื ืื ื ื”ื ืจื‘ื™ ื™ื•ืกื™ ื”ื’ืœื™ืœื™ ืื™ืœื™ืžื ื”ื›ื™ ืงืืžืจ ืœื™ื” ื”ื ืื ื ื“ื—ื–ื™ืชืš ื•ื”ื ืจื‘ื™ ื™ื•ืกื™ ื”ื’ืœื™ืœื™ ื“ืืžืจ ืžื ื” ืฆื•ืจื™ ื–ื™ืœ ื”ื‘ ืœื™ื” ืžื ื” ืฆื•ืจื™ ืœืžื™ืžืจื ื“ืขื“ ื ืขืฉื” ื“ื™ื™ืŸ


The Gemara clarifies: What did Rabbi Yehuda Nesia mean when he stated: This is I, and this is Rabbi Yosei HaGelili? If we say that this is what Rabbi Yehuda Nesia said to the assailant: This is I, who saw you strike the man, and this is the opinion of Rabbi Yosei HaGelili, who says that the penalty for this act is one hundred dinars of Tyrian coinage; therefore, go and give him one hundred dinars of Tyrian coinage, is this to say that a witness can become a judge, i.e., that one who witnessed an event can himself serve as a judge concerning the matter, and consequently Rabbi Yehuda Nesia was able to act as both witness and judge in the same case?


ื•ื”ืชื ื™ื ืกื ื”ื“ืจื™ืŸ ืฉืจืื• ืื—ื“ ืฉื”ืจื’ ืืช ื”ื ืคืฉ ืžืงืฆืชืŸ ื ืขืฉื• ืขื“ื™ื ื•ืžืงืฆืชืŸ ื ืขืฉื• ื“ื™ื™ื ื™ืŸ ื“ื‘ืจื™ ืจื‘ื™ ื˜ืจืคื•ืŸ ืจื‘ื™ ืขืงื™ื‘ื ืื•ืžืจ ื›ื•ืœื ืขื“ื™ื ื”ื ื•ืื™ืŸ ืขื“ ื ืขืฉื” ื“ื™ื™ืŸ


But isnโ€™t it taught in a baraita that if there was a Sanhedrin that saw one kill another person, some of them have become witnesses and testify before the others, and some of them have become judges to issue a verdict; this is the statement of Rabbi Tarfon. Rabbi Akiva says: They are all witnesses to the act, and a witness cannot become a judge.


ืขื“ ื›ืืŸ ืœื ืงืืžืจ ืจื‘ื™ ื˜ืจืคื•ืŸ ืืœื ื“ืžืงืฆืชืŸ ื ืขืฉื• ืขื“ื™ื ื•ืžืงืฆืชืŸ ื ืขืฉื• ื“ื™ื™ื ื™ืŸ ืื‘ืœ ืขื“ ื ืขืฉื” ื“ื™ื™ืŸ ืœื ืงืืžืจ


The Gemara infers from this baraita that even Rabbi Tarfon says his opinion only in a case where some of the members of the Sanhedrin have become witnesses and some of them have become judges, but he did not say that a witness becomes a judge without anyone else testifying. All the more so according to the opinion of Rabbi Akiva would it not be permitted for Rabbi Yehuda Nesia to act as a judge as well as serving as a witness.


ื›ื™ ืชื ื™ื ื”ื”ื™ื ื›ื’ื•ืŸ ืฉืจืื• ื‘ืœื™ืœื” ื“ืœื ืœืžืขื‘ื“ ื“ื™ื ื ื ื™ื ื”ื•


The Gemara rejects this: One could say that when that baraita is taught, it is taught in a case where the Sanhedrin saw the murder at night, at which time it is not permitted for them to practice judgment, since cases of capital law may be judged only during the daytime. They were therefore not functioning as judges at that time. On the following day, testimony must be heard from some, now acting as witnesses, in front of the others, now acting as judges. By contrast, in the case of Rabbi Yehuda Nesia, he was able to serve as both the witness and the judge, as he witnessed the event while functioning as a judge.


ื•ืื™ื‘ืขื™ืช ืื™ืžื ื”ื›ื™ ืงืืžืจ ืœื™ื” ื”ื ืื ื ื“ืกื‘ื™ืจื ืœื™ ื›ืจื‘ื™ ื™ื•ืกื™ ื”ื’ืœื™ืœื™ ื“ืืžืจ ืžื ื” ืฆื•ืจื™ ื•ื”ื ืกื”ื“ื™ ื“ืžืกื”ื“ื™ ื‘ืš ื–ื™ืœ ื”ื‘ ืœื™ื” ืžื ื” ืฆื•ืจื™


The Gemara offers an alternative explanation: And if you wish, say instead that Rabbi Yehuda Nesia did not witness the incident, and this is what he said to the assailant: This is I, that I hold in accordance with the opinion of Rabbi Yosei HaGelili, who says that one hundred dinars of Tyrian coinage must be paid; and these are witnesses who testify concerning you that you struck the other. Therefore, go and give him one hundred dinars of Tyrian coinage.


ื•ืกื‘ืจ ืจื‘ื™ ืขืงื™ื‘ื ื“ืื™ืŸ ืขื“ ื ืขืฉื” ื“ื™ื™ืŸ


ยง The Gemara discusses the previously mentioned opinion of Rabbi Akiva: But does Rabbi Akiva hold that a witness cannot become a judge?


ื•ื”ืชื ื™ื ื•ื”ื›ื” ืื™ืฉ ืืช ืจืขื”ื• ื‘ืื‘ืŸ ืื• ื‘ืื’ืจืฃ ืฉืžืขื•ืŸ ื”ืชื™ืžื ื™ ืื•ืžืจ ืžื” ืื’ืจื•ืฃ ืžื™ื•ื—ื“ ืฉืžืกื•ืจ ืœืขื“ื” ื•ืœืขื“ื™ื ืืฃ ื›ืœ ืฉืžืกื•ืจ ืœืขื“ื” ื•ืœืขื“ื™ื ืคืจื˜ ืœืฉื™ืฆืชื” ืžืชื—ืช ื™ื“ ื”ืขื“ื™ื


But isnโ€™t it taught in a baraita (Tosefta, Sanhedrin 12:3) with regard to what is stated in the Torah concerning injuries: โ€œAnd if men contend, and one smite the other with a stone, or with his fistโ€ (Exodus 21:18), that Shimon HaTimni says: Just as a fist is unique in that it is submitted to the assembly of judges to assess its ability to injure and to the witnesses who attest that it was the fist used to strike, as a fist remains attached to the assailant, so too, a ruling can be issued in the case of any item that is submitted to the assembly of judges to assess its ability to injure and to the witnesses who attest that this was the item used to strike? This serves to exclude a case where the stone that injured left the possession of the witnesses and is not available to be inspected by the court to assess if it is capable of causing the purported injury.


ืืžืจ ืœื• ืจื‘ื™ ืขืงื™ื‘ื ื•ื›ื™ ื‘ืคื ื™ ื‘ื™ืช ื“ื™ืŸ ื”ื›ื”ื• ืฉื™ื•ื“ืขื™ืŸ ื›ืžื” ื”ื›ื”ื• ื•ืขืœ ืžื” ื”ื›ื”ื• ืื ืขืœ ืฉื•ืงื• ืื• ืฆื™ืคืจ ื ืคืฉื•


Rabbi Akiva said to him: But is it the case that in all incidents of injury the assailant struck him in the presence of the court, so that they know exactly how hard he struck him and on what part of the body he struck him, e.g., if he struck him on his thigh or if he struck him on the lobe of his heart? Rather, the court relies on witnesses to testify about the injury. Therefore, the witnesses should be able to testify about the item used as well.


ื•ืขื•ื“ ื”ืจื™ ืฉื“ื—ืฃ ืืช ื—ื‘ื™ืจื• ืžืจืืฉ ื”ื’ื’ ืื• ืžืจืืฉ ื”ื‘ื™ืจื” ื•ืžืช ื‘ื™ืช ื“ื™ืŸ ื”ื•ืœื›ื™ืŸ ืืฆืœ ื‘ื™ืจื” ืื• ื‘ื™ืจื” ื”ื•ืœื›ืช ืืฆืœ ื‘ื™ืช ื“ื™ืŸ ื•ืขื•ื“ ืื ื ืคืœื” ื—ื•ื–ืจ ื•ื‘ื•ื ื”


And furthermore, if there was one who pushed another from the top of the roof or from the top of a building, and the one who was pushed died as a result of the fall, do the members of the court go to the building to inspect how high it is, or does the building go to the court? Obviously neither, and the court relies upon the testimony of witnesses who state how tall the building is. And furthermore, if the building collapsed, must the court rebuild it in order to assess its height? The witnesses should then be able to testify about the item used as well.


ืืœื ืžื” ืื’ืจื•ืฃ ืžื™ื•ื—ื“ ืฉื”ื•ื ืžืกื•ืจ ืœืขื“ื™ื ืืฃ ื›ืœ ืฉื”ื•ื ืžืกื•ืจ ืœืขื“ื™ื


Rather, Rabbi Akiva interprets the verse differently: Just as a fist is unique in that it is submitted to the witnesses for them to testify about it, so too, a ruling can be issued in the case of any item that is submitted to the witnesses to testify about, despite the itemโ€™s not being available for the court to assess.


ืคืจื˜ ืœื›ืฉื™ืฆืชื” ืื‘ืŸ ืžืชื—ืช ื™ื“ื• ืฉืœ ืžื›ื” ืคื˜ื•ืจ


This serves to exclude a case where the stone that injured left the possession of the assailant and cannot be found, and even the witnesses were unable to see it. In such a case the assailant is exempt from payment, since even the witnesses cannot testify about whether the stone was capable of inflicting the purported injuries.


ืงืชื ื™ ืžื™ื”ืช ืืžืจ ืœื• ืจื‘ื™ ืขืงื™ื‘ื ื•ื›ื™ ื‘ืคื ื™ ื‘ื™ืช ื“ื™ืŸ ื”ื›ื”ื• ืฉื™ื•ื“ืขื™ืŸ ื›ืžื” ื”ื›ื”ื• ื”ื ื”ื›ื”ื• ื‘ืคื ื™ื”ื ืขื“ ื ืขืฉื” ื“ื™ื™ืŸ


The Gemara states its question: In any event, it teaches that Rabbi Akiva said to Shimon HaTimni: Are all cases of injury such that the assailant struck him in the presence of the court so that they know exactly how hard he struck him? It can be inferred from this that if he did in fact strike him in front of them, Rabbi Akiva would agree that a witness can become a judge. This contradicts the opinion of Rabbi Akiva in the baraita, that a witness cannot become a judge.


ืœื“ื‘ืจื™ื• ื“ืจื‘ื™ ืฉืžืขื•ืŸ ื”ืชื™ืžื ื™ ืงืืžืจ ื•ืœื™ื” ืœื ืกื‘ื™ืจื ืœื™ื”


The Gemara answers that there is no proof as to the opinion of Rabbi Akiva, since it may be that he stated his refutation in accordance with the statement of Shimon HaTimni, but he himself does not hold accordingly. Perhaps Rabbi Akiva himself holds that if the court had witnessed the act, they would not be able to render judgment concerning it.


ืชื ื• ืจื‘ื ืŸ ืฉื•ืจ ืชื ืฉื”ืžื™ืช ื•ื”ื–ื™ืง ื“ื ื™ืŸ ืื•ืชื• ื“ื™ื ื™ ื ืคืฉื•ืช ื•ืื™ืŸ ื“ื ื™ืŸ ืื•ืชื• ื“ื™ื ื™ ืžืžื•ื ื•ืช


The Gemara quotes a related halakha. The Sages taught: In the case of an innocuous ox that killed a person and subsequently went and caused damage, the court judges it as a case of capital law and the ox is killed, and the court does not judge it as a case of monetary law, despite the damage that it caused.


ืžื•ืขื“ ืฉื”ืžื™ืช ื•ื”ื–ื™ืง ื“ื ื™ืŸ ืื•ืชื• ื“ื™ื ื™ ืžืžื•ื ื•ืช ื•ื—ื•ื–ืจื™ืŸ ื•ื“ื ื™ืŸ ืื•ืชื• ื“ื™ื ื™ ื ืคืฉื•ืช ืงื“ืžื• ื•ื“ื ื•ื”ื• ื“ื™ื ื™ ื ืคืฉื•ืช ืื™ืŸ ื—ื•ื–ืจื™ืŸ ื•ื“ื ื™ืŸ ืื•ืชื• ื“ื™ื ื™ ืžืžื•ื ื•ืช


By contrast, in the case of a forewarned ox that killed a person and subsequently went and caused damage, the court judges it as a case of monetary law, and the owner is liable to pay for the damage it caused, and then the court goes back and judges it again as a case of capital law, and the ox is killed. But if the court proceeded and judged it first as a case of capital law, the court does not go back and judge it again as a case of monetary law, since it has already been sentenced to be killed.


ื•ื›ื™ ืงื“ืžื• ื•ื“ื ื•ื”ื• ื“ื™ื ื™ ื ืคืฉื•ืช ืžืื™ ื”ื•ื™ ืœื™ื”ื“ืจ ื•ืœื™ื“ื™ื™ื ื™ื” ื ืžื™ ืžืžื•ื ื•ืช


The Gemara asks: And if they proceeded and judged it first as a case of capital law, what of it? Let them go back and judge it again also as a case of monetary law.


ืืžืจ ืจื‘ื ืืฉื›ื—ืชื™ื ื”ื• ืœืจื‘ื ืŸ ื“ื‘ื™ ืจื‘ ื“ื™ืชื‘ื™ ื•ืงืืžืจื™ ื”ื ืžื ื™ ืจื‘ื™ ืฉืžืขื•ืŸ ื”ืชื™ืžื ื™ ื”ื™ื ื“ืืžืจ ืžื” ืื’ืจื•ืฃ ืžื™ื•ื—ื“ ืฉืžืกื•ืจ ืœืขื“ื” ื•ืœืขื“ื™ื


Rava said: I found the Sages of the school of Rav who were sitting and saying to explain this: In accordance with whose opinion is this? It is in accordance with the opinion of Rabbi Shimon HaTimni, who says that just as a fist is unique in that it is submitted to the assembly of judges to assess its ability to injure and to the witnesses to attest that this was the fist used to strike, so too, a ruling can be issued in the case of any item that is submitted to the assembly of judges to assess its ability to injure and to the witnesses to attest that this was the item used to strike.


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