Babylonian Talmud: Tractate Baba Kamma

Folio 90a

'The Consecration [of cattle¹  to the altar, the prohibition of] leaven²  [from any use] and the manumission of a slave³  release any of these articles [if mortgaged] from the burden of the mortgage.⁴  Are we then to say that this statement of Raba constituted a point at issue between these Tannaim? — No; it is possible that all concurred in the ruling of Raba [in general cases], but in this particular case here the Rabbis⁵  [might perhaps] have specially protected the mortgage of the husband.⁶  Or again if you like I may say that these Tannaim were unanimous in not accepting the enactment of Usha, but in the case here they might have differed as to whether the right to usufruct amounts in law to a right to the very substance, exactly as this was the dividing point between the following Tannaim. For it was taught:⁷  'If an owner sells his slave to a man with whom he stipulates that the slave shall still remain to serve him for the next thirty days, R. Meir says that the vendor⁸  would be subject to the law of "a day or two"9 because the slave was still "under" him,' his view being that the right to a usufruct in the slave amounts in law to a right to the very substance of him. 'R. Judah on the other hand says that it is the purchaser who would be subject to the law of "a day or two"10 because the slave was "his money",' his view being that a right to a usufruct in the slave does not amount in law to a right to the very substance of him. 'But R. Jose says that both of them¹¹  would be subject to the right of "a day or two": the vendor because the slave was still "under" him and the purchaser because the slave was already "his money",'for he was in doubt whether a right to a usufruct should amount to a right to the very substance or should not amount to a right to the very substance, and, as is well known, a doubt in capital charges should always be for the benefit of the accused.¹²  'R. Eliezer on the other hand says that neither of them would be subject to the law of "a day or two": the purchaser because the slave is not "under" him, and the vendor because he is not "his money".' Raba said: The reason of R. Eliezer was because Scripture says, For he is his money,¹³  implying that he has to be 'his money' owned by him exclusively.¹⁴  Whose view is followed in the statement made by Amemar that if a husband and wife sold the melog property [even simultaneously], their act is of no effect? Of course the view of R. Eliezer.¹⁵  So too, who was the Tanna who stated that which our Rabbis taught: 'One who is half a slave and half a freeman,¹⁶  as well as a slave belonging to two partners does not go out free for the mutilation of the principal limbs,¹⁷  even those which cannot be restored to him'? Said R. Mordecai to R. Ashi: Thus was it stated in the name of Raba, that this ruling gives the view of R. Eliezer. For did R. Eliezer not say that 'his money' implied that which was owned by him exclusively? So also here 'his slave'¹⁸  implies one who is owned by him exclusively.

MISHNAH. IF A MAN BOXES ANOTHER MAN'S EAR, HE HAS TO PAY HIM¹⁹  A SELA'.²⁰  R. JUDAH IN THE NAME OF R. JOSE THE GALILEAN SAYS THAT [HE HAS TO PAY HIM] A MANEH.²⁰  IF HE SMACKED HIM [ON THE FACE] HE HAS TO PAY HIM TWO HUNDRED ZUZ;²⁰  [IF HE DID IT] WITH THE BACK OF HIS HAND HE HAS TO PAY HIM FOUR HUNDRED ZUZ. IF HE PULLED HIS EAR, PLUCKED HIS HAIR, SPAT SO THAT THE SPITTLE REACHED HIM, REMOVED HIS GARMENT FROM UPON HIM, UNCOVERED THE HEAD OF A WOMAN IN THE MARKET PLACE, HE MUST PAY FOUR HUNDRED ZUZ.

1. That had previously been mortgaged for a liability.
2. [In Jewish possession during the Passover which had previously been mortgaged for a liability to a non-Jew]
3. V. p. 498, n. 5.
4. So also here though the right of the husband in the melog (v. Glos.) slave is impregnable in the case of a sale or gift, it must give way in the case of manumission.
5. According to the second Baraitha.
6. To be inviolable even in the case of a manumission.
7. B.B. 50a.
8. During the thirty days.
9. Stated in Ex. XXI, 21 and according to which if an owner smites his servant, who after having continued to live for a day or two, dies, he would not be punished, though in the case of a stranger the slayer would be liable to death in all circumstances.
10. Even during the thirty days that the slave had to be with the vendor.
11. I.e., the vendor and the purchaser.
12. B.B. 50b; Sanh. 79a also supra p. 253.
13. Ex. XXI, 21.
14. [Raba stresses the word 'his'.]
15. Who considers neither the vendor nor the purchaser as the true owner, and so should be the case regarding husband and wife in the melog estate.
16. As where the slave belonged to two partners and one of them manumitted him; cf. Git. 41a.
17. Which are twenty-four in number; cf. Kid. 25a.
18. Ex. XXI, 26.
19. On account of Degradation.
20. V. Glos.

THIS IS THE GENERAL PRACTICE, THOUGH ALL DEPENDS UPON THE DIGNITY [OF THE INSULTED PERSON]. R. AKIBA SAID THAT EVEN THE POOR IN ISRAEL HAVE TO BE CONSIDERED AS IF THEY ARE FREEMEN REDUCED IN CIRCUMSTANCES, FOR IN FACT THEY ALL ARE THE DESCENDANTS OF ABRAHAM, ISAAC AND JACOB.¹  IT ONCE HAPPENED THAT A CERTAIN PERSON UNCOVERED THE HEAD OF A WOMAN IN THE MARKET PLACE AND WHEN SHE CAME BEFORE R. AKIBA, HE ORDERED THE OFFENDER TO PAY HER FOUR HUNDRED ZUZ. THE LATTER SAID TO HIM, 'RABBI, ALLOW ME TIME [IN WHICH TO CARRY OUT THE JUDGMENT];' R. AKIBA ASSENTED AND FIXED A TIME FOR HIM. HE WATCHED HER UNTIL HE SAW HER STANDING OUTSIDE THE DOOR OF HER COURTYARD, HE THEN BROKE IN HER PRESENCE A PITCHER WHERE THERE WAS OIL OF THE VALUE OF AN ISAR,²  AND SHE UNCOVERED HER HEAD AND COLLECTED THE OIL WITH HER PALMS AND PUT HER HANDS UPON HER HEAD [TO ANOINT IT]. HE THEN SET UP 'WITNESSES AGAINST HER AND CAME TO R. AKIBA AND SAID TO HIM: HAVE I TO GIVE SUCH A WOMAN³  FOUR HUNDRED ZUZ?' BUT R. AKIBA SAID TO HIM: 'YOUR ARGUMENT IS OF NO LEGAL EFFECT, FOR WHERE ONE INJURES ONESELF THOUGH FORBIDDEN, HE IS EXEMPT,⁴  YET, WERE OTHERS TO INJURE HIM, THEY WOULD BE LIABLE: SO ALSO HE WHO CUTS DOWN HIS OWN PLANTS, THOUGH NOT ACTING LAWFULLY,⁵  IS EXEMPT,⁴  YET WERE OTHERS TO [DO IT], THEY WOULD BE LIABLE.

GEMARA. It was asked: Is it a Tyrian maneh⁶  of which the Mishnaic text speaks or is it only a local maneh⁷  which is referred to? — Come and hear: A certain person boxed another's ear and the case was brought before R. Judah Nesi'ah.⁸  He said to him: 'Here I am and here is also R. Jose the Galilean, so that you have to pay the plaintiff a Tyrian maneh.' Does this not show that it is a Tyrian maneh which is spoken of in the text? — It does.

What is the meaning of, 'Here I am, and here is also R. Jose the Galilean'? If you say he meant, 'Here I am who witnessed you [doing this] and here is also R. Jose the Galilean who holds that the payment should be a Tyrian maneh; go therefore and thus pay him a Tyrian maneh', would this not imply that a witness is eligible to act [also] as judge? But [how can this be, since] it was taught: If the members of the Sanhedrin saw a man killing another, some of them should act as witnesses and the others should act as judges: this is the opinion of R. Tarfon. R. Akiba [on the other hand] said that all of them are considered witnesses and [they thus cannot act as judges, for] a witness may not act as a judge.⁹  Now, even R. Tarfon surely did not mean more than that a part of them should act as witnesses and the others act as judges, but did he ever say that a witness [giving evidence] should be able to act as judge? — The ruling there¹⁰  [that witnesses actually giving evidence would not be eligible to act at the same time as judges] referred only to a case such as where e.g., they saw the murder taking place at night time when they were unable to act in a judicial capacity.¹¹  Or if you like I may say that what R. Judah Nesi'ah said to the offender was, 'Since I am here who concur with R. Jose the Galilean who stated that a Tyrian maneh should be paid, and since there are here witnesses testifying against you, go and pay the plaintiff a Tyrian maneh.'

Does R. Akiba really maintain that a witness cannot [at the same time] act as judge? But it has been taught: [As Scripture says] And one smite another with a stone or with his fist,¹²  Simeon the Temanite remarked that just as a fist is a concrete object that can be submitted for examination to the assembly of the judges and the witnesses, so also it is necessary that all other instruments should be able to be submitted [for consideration] to the assembly of the judges and the witnesses, which excludes the case where the instrument of killing disappeared from under the hands of the witnesses.¹³  Said R. Akiba to him: [Even if the instrument was placed before the judges], yet did the actual killing take place before the judges of the Court of Law that they should be expected to know how many times the murderer struck the victim, or again the part of the body upon which he struck him, whether it was upon his thigh or upon the tip of the heart? Again, supposing the murderer threw a man down from the top of a roof or from the top of a mansion house so that the victim died, would the court of law have to go to the mansion or would the mansion have to go to the court of law? Again, if the mansion meanwhile collapsed, would it be necessary to erect it anew [as it was before for the inspection of the court of law]?¹⁴  We must therefore say that just as a fist is a definite object that was placed before the sight of witnesses [when the murder was committed] so also it is necessary that all other instruments should have been placed before the sight of the witnesses, which excludes the case where the instrument of killing disappeared from under the hand of the murderer who is thus free.' We see then that R. Akiba said to him, 'did the actual killing take place before the judges of the Court of Law that they should be expected to know how many times the murderer struck the victim …?' which would imply that if he had killed him in their presence, [they who were the] witnesses would have been able to act as judges! — He was arguing from the point of view of R. Simeon the Temanite but this was not his own opinion.

Our Rabbis taught: 'If an ox while still Tam¹⁵  killed [a person] and subsequently also did damage, the judges will adjudicate on the loss of life¹⁶  but will not adjudicate on the pecuniary damage.¹⁷  In the case however of Mu'ad¹⁸  killing a person and subsequently doing damage the judges will first deal with the pecuniary matter¹⁹  and then adjudicate on the loss of life.²⁰  But if [for some reason or other], they have already adjudicated on the capital matter it would no more be possible to start dealing with the pecuniary matter.' But even if they first adjudicated on the capital matter, what has happened that it should no more be possible for them to start dealing with the pecuniary matter? Raba said: 'I found the Rabbis at the School of Rab²¹  sitting and stating that this teaching follows the view of R. Simeon the Temanite who said that just as a fist is a definite object which can be submitted to the consideration of the assembly of the judges and the witnesses,

1. Cf. B.M. VIII, 1.
2. A small coin; v. Glos.
3. Who had herself for the mere value of an isar, publicly uncovered her own head.
4. From any pecuniary punishment.
5. Cf. Deut. XX, 19.
6. Consisting of twenty-five sela's, v. supra p. 204. n. 4.
7. Which was only an eighth part of a Tyrian maneh; cf. supra p. 204.
8. I.e., R. Judah II, the Prince.
9. Sanh. 34b; B.B. 114a.
10. In the case of Sanhedrin witnessing a murder.
11. As judgments could be passed only at day time; cf. Sanh. IV, 1. [But where witnessed during the daytime, they can immediately act in the dual capacity of judges and witnesses.]
12. Ex. XXI, 18.
13. [Though the witnesses had an opportunity of examining the killing instrument, where the Judges had no such opportunity, no death penalty can be passed.]
14. [In which case the court relies on the examination made by the witnesses; v. Tosef. Sanh. XII.]
15. V. Glos.
16. Cf. Ex. XXI, 28.
17. Cf. ibid. 35.
18. V. Glos.
19. Cf. ibid. 36.
20. Cf. ibid. 29-30.
21. Cf. supra p. 487.