Bava Kamma 88a (פח.) — the Talmud in English

And we reject this: one cannot refute the inference by saying, “What of a slave, who is fit for circumcision; should he therefore be fit to testify?”

For

a minor, who is included in the

mitzva of

circumcision, and

nevertheless

is disqualified

he

from testimony.

If so, a slave, too, should be disqualified from testimony, despite his being included in the mitzva of circumcision.

And we reject this: one cannot derive the status of a slave from that of a minor. For

what is distinctive about a minor, who is not

obligated

in the mitzvot,

and since this is so, his status is inferior and he is therefore also disqualified from testimony;

can you say the same of a slave, who is

obligated

in the mitzvot!?

And we reject this: this cannot be refuted in that manner, for

a woman proves otherwise: she is included in the mitzvot, and

nevertheless she is

disqualified from testimony.

A slave, too, should be disqualified from testimony, despite his being included in the mitzvot.

The argument returns

to deriving the status from that of a woman. And if you refute this by saying, “What is distinctive about a woman, who is not included in circumcision,” we return and derive it from a minor. And if you refute this by saying, “What is distinctive about a minor, who is not included in the mitzvot,” we return and derive it from a woman.

It follows that

this one cannot be compared to that one, and that one cannot be compared to this one.

That is, the deficiency of a woman is not the same as the deficiency of a minor [who is not included in the mitzvot], and the deficiency of a minor is not the same as the deficiency of a woman [who is not included in circumcision].

Therefore, the deficiency found in each of them is not what causes the rule that they are disqualified from testimony. Rather, their “common denominator” is what determines the rule.

But

the common denominator [

the shared characteristic ]

among them

is that

they are not included in all the mitzvot

but only in some of them [a woman is obligated in prohibitions and in positive mitzvot not limited by time, while a minor is obligated in circumcision ];

and

their legal status is that they are

disqualified

from

testifying.

I will likewise include the slave

and derive his status from that of a woman and a minor, for he resembles them in that

he is not included in all the mitzvot

but only in some of them,

and

from this it follows that the slave is

disqualified from testifying.

And we challenge this: Even now,

what is distinctive about the common denominator of these two, that they are not persons? Can you say the same of a slave, who is a person!?

That is, although we derive the ruling from the “shared characteristic” of a woman and a minor, one still cannot derive the status of a slave from them, because a woman and a minor are not “persons,” and the verse “And the two men shall stand” does not apply to them. From where, then, is it derived that a slave, who is a “person,” is disqualified!?

And we answer:

Rather, let the disqualification of a slave be derived

from that of a slave

who robs

who is fit to enter the Jewish community yet is disqualified from testimony, and derive as follows: A slave, who is unfit to enter the Jewish community—should it not follow that he is disqualified from testimony?

And we challenge this: It is impossible to derive the status from that of a robber, because the kal va-chomer can be refuted:

What is distinctive about a robber? His actions caused him

to be disqualified from testimony, for he performed evil acts and was therefore disqualified.

Can you say

that this applies also

to a slave, whose actions did not cause him

to be disqualified [

for he performed no acts that would cause him to be disqualified ]!?

And we conclude:

Rather, let the disqualification of a slave be derived [

derive it, learn it ] by means of a kal va-chomer

from a robber and one of the following [one of those mentioned earlier, a woman or a minor].

For when you raise the objection and say, “What is distinctive about a robber, whose actions caused him to be disqualified,” we will answer: A woman or a minor proves otherwise, for their actions did not cause them to be disqualified, and nevertheless they are disqualified from testimony. I will likewise include a slave, who is disqualified from testimony even though his actions did not cause him to be disqualified.

And if you raise the objection and say [if we derive it from a woman], “What is distinctive about a woman, who is not included in circumcision and is not a person,” or [if we derive it from a minor], “What is distinctive about a minor, who is not included in the mitzvot and is not a person,” can you say the same of a slave, who is included in circumcision and in the mitzvot and is a person? We will say: A robber proves otherwise. He is included in the mitzvot and is a person, and nevertheless he is disqualified from testimony. I will likewise include a slave, who should be disqualified from testimony.

And although the status cannot be derived from a robber alone [because one can object that his actions caused his disqualification], nor from a woman and a minor alone [because one can object that they are not persons, and so forth], nevertheless it can be derived from the common denominator of a robber and a woman, or of a robber and a minor. Their common denominator is that they are not careful with all the mitzvot—the robber because of his wickedness, and the woman and minor because they were not commanded.

Mar, son of Ravina, said:

the disqualification of a slave from testimony need not be derived by means of the measure of a kal va-chomer; it is derived from the verse itself.

For

the verse says [Deuteronomy 24:16]: “

Fathers shall not be put to death for sons”

”

and we interpret this verse as follows:

“They shall not be put to death”—

people

on the basis of

the testimony of

fathers who have no paternal lineage for sons [

son-lineage ], meaning those whose sons are not attributed to them and are not called by their fathers’ names; that is, slaves.

For if it enters your mind

to interpret the verse

as we say

elsewhere [Sanhedrin 27b]:

“Fathers shall not be put to death for sons,”

that is,

through the testimony of sons,

for the testimony of a son is not accepted in order to punish his father,

then

the Merciful One should have written: “Fathers shall not be put to death for their sons,”

and not merely “sons.”

What

is the significance of the wording

“sons”

that the verse says?

You can derive two things from it:

one: fathers shall not be put to death on the basis of the testimony of their sons; and the other—

that they shall not be put to death on the basis of

the testimony of

fathers who have no paternal lineage for sons [

whose sons are not attributed to them ].

And we challenge this:

If so,

if you expound the verse with regard to a witness who lacks a legal paternal relationship, then the latter part of the verse,

“And sons shall not be put to death for fathers,”

should

likewise

be understood to say:

“They shall not be put to death”—

people

on the basis of

the testimony of

sons who have no paternal lineage [

lineage ]

for fathers!?

Rather, a convert

—should he

likewise be disqualified

from

testimony

because a convert has no paternal lineage, as he is not attributed to his father!?

They said [

the members of the academy answered ]:

Can this be compared?

Are a convert and a slave truly comparable!?

A convert, although [

indeed ]

he has no lineage above [

he is not attributed to his father ], nevertheless

below [

from him onward ]

he has lineage,

for his son is called by his name and is attributed to him.

This excludes a slave, who has no lineage above—

he is not called by his father’s name—

or below—

his son is not called by his name.

Therefore, a slave is disqualified from testimony, whereas a convert is fit to testify.

And the Gemara proves this:

For if it enters your mind that a convert is disqualified from testimony,

then

the Merciful One should have written

at the beginning of the verse:

“Fathers shall not be put to death for their sons,”

and we would interpret it

as we say: “They shall not be put to death”

—fathers

through the testimony of sons.

And the Merciful One should have written

at the end of the verse:

“And sons shall not be put to death for fathers,” from which you could derive two things: one—

sons shall not be put to death through the testimony of fathers, and the other—

since it does not say “through the testimony of their fathers,” but rather “through the testimony of fathers,” you can also derive:

they shall not be put to death on the basis of the testimony of sons who have no paternal lineage,

excluding a convert, who is not called by his father’s name.

And the status of a slave is derived

as disqualified from testimony

by a kal va-chomer from a convert: Just as a convert has no lineage above, but does have lineage below,

and nevertheless

is disqualified

from

testimony,

so, in the case of a slave, who has no lineage either above or below, is it not certainly the case that he should be disqualified from testimony?

Why, then, did the verse alter its wording at the beginning!?

Rather,

it is necessarily the case that the verses must be expounded as follows:

Since the Merciful One wrote

at the beginning:

“Fathers shall not be put to death for sons,”

since it did not say “for their sons,”

it indicates: “They shall not be put to death”

—any person—

on the basis of

the testimony of

fathers who have no [

who have no ]

paternal lineage for sons,

such as a slave, whose son is not called by his name.

You can derive from this: A slave—

who has no lineage either above or below, is disqualified from testimony, but a convert—

since he has lineage below, is fit to testify.

For if he were disqualified, the verse would no longer be needed to disqualify a slave, since his disqualification could be derived by a kal va-chomer from a convert, as stated above.

And if you would say [

if you ask ]

the Merciful One should have written

at the end:

“And sons shall not be put to death for their fathers,” why

is it necessary [

what reason is there ]

for the Merciful One to write: “And sons shall not be put to death for fathers,” which indicates: They shall not be put to death on the basis of the testimony of sons who have no paternal lineage,

when you have said that a convert is fit to testify? Why, then, did the verse alter its wording!?

One can say:

Since [

because ]

the Merciful One wrote

at the beginning of the verse:

“Fathers shall not be put to death for sons,” He also wrote

at the end of the verse:

“And sons shall not be put to death for fathers.”

We learned in the Mishna:

A deaf-mute, an imbecile, and a minor are disadvantaged:

one who injures them is liable, whereas they are exempt if they injure others. A slave and a woman are disadvantaged: one who injures them is liable, whereas they are exempt if they injure others; but they pay at a later time. If the woman is divorced or the slave is emancipated, they become liable to pay. [The connection to our Mishna is explained later in the discussion, on 89a.]

The mother of Rav Shmuel bar Abba of Hagrונya was married to Rabbi Abba [

she had first borne Rav Shmuel to his father, Abba, and afterward married the amora Rabbi Abba in a second marriage ].

She wrote her property [

after she married Rabbi Abba, she recorded in a document her nikhsei melog [ her usufruct property ] and gave it as a gift

to Rav Shmuel bar Abba, her son [

her son from her first marriage ]

after she had died [

after she passed away ].