Bava Kamma 88a — the Talmud in English

That its value was diminished

for the purpose of sale. Since it was in his power to sell her, it follows that the father loses through the injury that they inflicted upon his daughter, and there is room to say that the Torah granted him even this loss.

But an injury

merely,

which did not diminish her value,

which contains only “pain,”

he did not ask Rabbi Elazar about, and it was obvious to him that she receives these payments, and not her father. And how did Rabbi Yohanan say, “even an injury”!?

in Rabbi Elazar’s view. It was obvious to him that she receives these payments, and not her father. And how, then, did Rabbi Yohanan say: “Even an injury”!?

He said

[he answered]:

Rabbi Yosei bar Hanina:

That which Rabbi Yohanan said, that even an injury the Torah granted to the father, is speaking in a case where

he injured her face, and diminished her value.

We learned in the Mishna:

One who injures another’s Canaanite slave is liable

for all of them. Rabbi Yehuda says: Slaves do not have humiliation.

And the Gemara explains:

What is Rabbi Yehuda’s reason?

For

the verse says

[Deuteronomy 25:11–12]:

“When men fight together, a man and his brother,

and the wife of one approaches to save her husband from the hand of the one striking him, and she sends out her hand and grasps his private parts. Then you shall cut off her palm [monetary payment for the humiliation]; your eye shall not pity.”

And from the fact that the verse says, “a man and his brother,” it implies that payment for humiliation is only

for one who has “brotherhood”

among Israel, who is fit to enter the assembly of Hashem.

A slave is excluded

from this law,

for he has no brotherhood

among Israel, since he is forbidden to enter the assembly of Hashem.

But the Rabbis

hold: A Canaanite slave

is his brother

of an Israelite

with regard to mitzvot,

for a slave is obligated in all the mitzvot in which a woman is obligated. Therefore, he too is included in the verse, “a man and his brother.” And we refute:

If that is so,

as you have said, that Rabbi Yehuda’s reason is that a slave is not called “his brother,” then according

to

the view of

Rabbi Yehuda, false witnesses against a slave

[witnesses who falsely testified that a Canaanite slave was liable to death, and they were proven false],

will they not be put to death, for

it is

written

[Deuteronomy 19:19]:

“You shall do to him as he plotted to do to his brother,”

for Scripture punishes “false witnesses” only when they testified concerning one who is called “his brother.” And if according to Rabbi Yehuda a slave, who has no brotherhood, is not called “his brother,” then accordingly he is also excluded from the section of false witnesses. Yet it is established that false witnesses against a slave are indeed put to death!?

He said

[he answered]:

Rava said

in the name of

Rav Sheshet: The verse says,

at the end of that verse, concerning false witnesses:

“And you shall eradicate the evil from your midst”—

in any event!

For even if they falsely testified concerning one who has no “brotherhood,” they become liable under the law of “false witnesses.”

And we refute:

If that is so,

according to your words, that the Rabbis hold that slaves have humiliation because a slave is “his brother” with regard to mitzvot, then according

to

the view of

the Rabbis,

will

a slave be fit for kingship,

as it is stated concerning it [Deuteronomy 17:15]: “From among your brothers you shall set a king over you; you may not place over you a foreign man who is not your brother”!?

But it is obvious that a slave cannot be king!

They said

[the members of the academy answered]:

And according to your reasoning

[according to your view], that you hold that everyone who is called “your brother” is fit for kingship, and on this basis you ask that if a slave too is your brother with regard to mitzvot, how is he fit for kingship,

let this difficulty be posed to you: a convert,

why is he disqualified from kingship!? And this difficulty is

according to everyone,

for a convert, even according to Rabbi Yehuda, is called “your brother,” since he is permitted to enter the assembly.

Rather,

necessarily, one must distinguish concerning kingship and say that the law of kingship is different, since

the verse says, “from among your brothers,”

which implies specifically

“from the choicest of your brothers”

you shall appoint the king. Therefore, neither a slave nor a convert is fit for kingship, for even if they are called “your brothers,” nevertheless they are not from “the choicest of your brothers.”

And we refute:

If that is so, according to

the view of

the Rabbis,

who hold that a slave is called “his brother,” then will

a slave be fit for testimony!?

For it is written

[Deuteronomy 19:18]:

“And behold, the witness is a false witness; he has testified falsely against his brother.”

And it is established for us that a slave is disqualified from testimony. Granted, according to Rabbi Yehuda, a slave is not “his brother”; but according to the Rabbis, from where is he disqualified!?

He said

[he answered]:

Ulla: You cannot say

that the slave should be fit for testimony, because

it is derived

that the slave’s disqualification from

testimony is derived by a kal va-chomer from a woman:

And a woman, who is fit to enter the assembly

[she is permitted to marry an Israelite],

is disqualified from testimony,

for it is written concerning testimony [Deuteronomy 19:17]: “And the two men shall stand,” implying that only “men” are fit to testify, and not women.

A slave, who is not fit to enter the assembly

[for he is forbidden to marry an Israelite woman],

is it not a matter of logic that he should be

would be

disqualified from serving as a witness?

testimony. And we refute: The law of the slave cannot be learned from the law of the woman. For

what is different about a woman? For

she

is not fit

[connected]

to

the mitzva of

circumcision.

Therefore, she is inferior, and she is disqualified even from testimony.

Can you say this concerning a slave, who is fit for circumcision,

and is obligated in it, and in this respect he is superior to a woman? If so, it is possible that he too is fit for testimony, despite the fact that a woman is disqualified from it!?

And we reject this: There is no basis to refute it by saying, “You can say concerning a slave that he is fit for circumcision, and therefore he should be fit for testimony.”

For

a minor is proof, who is included in the

mitzva of

circumcision, and

even so he is

disqualified

from

testimony.

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

And we refute: Behold, one cannot learn the law of a slave from a minor. For

what is there concerning a minor, who is not

obligated

in mitzvot,

and since this is so, he is inferior, and he is therefore disqualified even from testimony;

can you say concerning a slave, who is

obligated

in mitzvot!?

And we reject this: One cannot refute it in this way, for

a woman is proof, who is included in mitzvot, and

even so she is

disqualified from testimony.

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

And the matter returns

to being learned from a woman; and if you refute it by saying, “What is there concerning a woman, who is not included in circumcision?” we return and learn from a minor; and if you refute it by saying, “What is there concerning a minor, who is not included in mitzvot?” we return and learn from a woman.

It follows that

this one is not seen as this one, and this one is not seen as this one.

That is to say, the deficiency of a woman is not like the deficiency of a minor [who is not included in mitzvot], and the deficiency of a minor is not like the deficiency of a woman [who is not included in circumcision].

Therefore, the deficiency present in each one individually does not cause the law that they are disqualified from testimony; rather, the “common side” [the common denominator] between them is what determines it.

But behold,

the common side

[the common denominator]

between 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 commandments not limited by time, and a minor is obligated in circumcision ]

and

their law is that they are

disqualified

to

testify.

I too shall bring the slave

and learn from a woman and a minor, for he resembles them in this,

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 to testify.

And we refute: Even now,

what is there concerning the common side between them, that they are not persons? Can you say concerning a slave, that he is a person!?

That is to say: Indeed, we learn from the “common denominator” of a woman and a minor, but one still cannot learn a slave from them, because a woman and a minor are not “persons,” and we do not read concerning them: “And the two men shall stand”; but from where do we know to disqualify a slave, who is a “person”!

And we answer:

Rather, let the disqualification

of a slave be brought

from a robber,

who is fit to enter the congregation but is disqualified from testimony; and a slave, who is not fit to enter the congregation—is it not an inference that he should be disqualified from testimony?

And we refute: It is impossible to learn from a robber, because one can answer the kal va-chomer:

What is there concerning a robber, whose deeds caused him

to be disqualified from testimony, for he performed evil deeds and therefore he is disqualified;

can you say

that this is so also

concerning a slave, whose deeds did not cause him

[to be disqualified, since he performed no deeds that would cause him to be disqualified]!?

And we conclude:

Rather, let it be brought

[bring, learn] the disqualification of a slave by a kal va-chomer

from a robber and from one of these

[one of those mentioned previously, a woman or a minor].

For when you refute it and say: “What is there concerning a robber, whose deeds caused him [to be disqualified]?” we will say: “A woman or a minor is proof, for their deeds did not cause them [to be disqualified], and nevertheless they are disqualified from testimony”; I too shall bring a slave, who is disqualified from testimony even though his deeds did not cause him [to be disqualified].

And if you refute it and say [if we learn from a woman]: “What is there concerning a woman, who is not included in circumcision and is not a person?” or [if we learn from a minor]: “What is there concerning a minor, who is not included in mitzvot and is not a person?”—can you say concerning a slave, who is included in circumcision and in mitzvot and is a person? Let us say: “A robber is proof, who is included in mitzvot and is a person, and nevertheless he is disqualified from testimony”; I too shall bring a slave, who should be disqualified from testimony.

And even though it is impossible to learn from a robber alone [because one can refute it by saying that his deeds caused him to be disqualified], nor from a woman and a minor alone [because one can refute it by saying that they are not persons, and so on], nevertheless one can learn from the “common side” [the common denominator] of a robber and a woman, or a robber and a minor, and that is: They are not careful with all the mitzvot, the robber because of his wickedness, a woman and a minor because they were not commanded.

Mar, son of Ravina, said:

The disqualification of a slave from testimony need not be learned by the method of a kal va-chomer; rather, it follows 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

human beings

on the basis of

the testimony of

fathers who have no paternal affiliation for sons

[the affiliation of sons]—that is, those whose sons are not affiliated with them and are not called by their father’s name; and these are slaves.

If it should enter your mind

to interpret the verse

as we say

elsewhere [Sanhedrin 27b]:

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

that is to say,

through the testimony of sons,

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

then

let the Merciful One write: “Fathers shall not be put to death for their sons,”

and not “sons” without qualification;

and what

is the reason for the wording

“sons”

that the verse says?

You may learn from it

two things: one—that fathers shall not be put to death through 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 affiliation for sons

[whose sons are not affiliated after them].

And we refute:

But from now,

when you expound the verse concerning a witness who has no law of affiliation, the end of the verse:

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

would

likewise

mean:

They shall not be put to death

human beings

on the basis of

the testimony of

sons who have no paternal affiliation

[affiliation]

for fathers!?

Rather, a convert

—would

likewise be disqualified

he

from testimony,

since a convert has no paternal affiliation, for he is not affiliated with his father!?

They said

[the members of the academy answered]:

How now, are a convert and a slave comparable to one another!?

A convert—

even though

[indeed]

he has no affiliation above

[he is not affiliated with his father], nevertheless

below

[from him onward]

he has affiliation,

for his son is called by his name and is affiliated after him.

This excludes a slave, for he has no affiliation, neither above

—he is not called by his father’s name—

nor below—

his son is not called by his name.

Therefore, a slave is disqualified from testimony, but a convert is qualified for testimony.

And the Gemara proves it:

If it should enter your mind that a convert is disqualified from testimony,

then

let the Merciful One write

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 let the Merciful One write

at the end of the verse:

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

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

since it did not write “through the testimony of their fathers,” but rather “through the testimony of fathers,” you may also learn:

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

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

And concerning a slave it follows

that he is disqualified from testimony

by a “kal va-chomer” from a convert: Just as a convert, it is only above that he has no affiliation, but below he has affiliation,

and nevertheless he is

disqualified

from

testimony;

a slave, who has no affiliation neither above nor below—is it not an inference that he should be disqualified from testimony?

And what is the reason that the verse changed its wording at the beginning!?

Rather,

you are compelled to expound the verses as follows:

Since the Merciful One wrote

at the beginning:

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

since it did not say “for their sons,”

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

any person,

on the basis of

the testimony of

fathers who have no

[for them]

paternal affiliation for sons,

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

You may learn from it: A slave—

who has no affiliation neither above nor below, is the one who is disqualified from testimony, but a convert—

since he has affiliation below, is qualified for testimony,

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

And if you should say

[if you ask]:

let the Merciful One write

at the end:

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

is it needed

[for what reason]

that the Merciful One wrote: “And sons shall not be put to death for fathers,” implying: They shall not be put to death on the basis of sons who have no paternal affiliation,

when you said that a convert is qualified for testimony; and what is the reason that the verse changed its wording!?

One can say:

Since

[because]

it wrote

the Merciful One at the beginning of the verse:

“Fathers shall not be put to death for sons,” it 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—their injury is severe,

one who injures them is liable, while if they injure others they are exempt; a slave and a woman—their injury is severe, one who injures them is liable, while if they injure others they are exempt, but they pay at a later time: if the woman is divorced or the slave is freed, they are liable to pay. [The connection to our Mishna is explained later in the sugya, 89a.]

The mother of Rav Shmuel bar Abba from Hagronya was married to Rabbi Abba

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

She wrote her property

[after she married Rabbi Abba she wrote in a document the usufruct property [property that she brought into the marriage] belonging to her and gave it as a gift]

to Rav Shmuel bar Abba, her son

[her son from her first marriage]

after she died

[after she passed away].