Babylonian Talmud: Tractate Baba Kamma

Folio 88a

through which her pecuniary value is decreased,¹  whereas regarding mere wounding, through which her pecuniary value would not [usually] decrease there was never any question [that the compensation would not go to the father. How then could R. Johanan speak of mere wounding?] — R. Jose b. Hanina replied: We suppose the wound to have been made in her face, thus causing her pecuniary value to be decreased. ONE WHO INJURES A CANAANITE SLAVE BELONGING TO ANOTHER PERSON IS [SIMILARLY] LIABLE FOR ALL [FIVE ITEMS]. R. JUDAH, HOWEVER, SAYS THAT NO DEGRADATION IS PAID IN THE CASE OF [CANAANITE] SLAVES. What is the reason of R. Judah? — As Scripture says:²  'When men strive together one with another' the law applies to one who can claim brotherhood and thus excludes a slave who cannot claim brotherhood.³  And the Rabbis?⁴  — They would say that even a slave is a brother in so far as he is subject to commandments. If this is so, would you say that according to R. Judah witnesses proved zomemim⁵  in a capital accusation against a slave would not be subject to be put to death in virtue of the words:⁶  'Then shall ye do unto him as he had purposed to do unto his brother'?⁷  — Raba said that R. Shesheth stated: The verse concludes:⁶  'So shalt thou put away the evil from among you', implying 'on all accounts' — Would you say that according to the Rabbis⁸  a slave would be eligible to be chosen as king?⁹  — I would reply: According to your reasoning would the same difficulty not arise regarding a proselyte, whichever view we accept¹⁰  unless we suppose that when Scripture says 'One from among thy brethren',¹¹  it implies 'one of the choicest of thy brethren'?¹²  — But again would you now also say that according to the Rabbis, a slave would be eligible to give evidence,¹³  since it says, And behold, if the witness be a false witness and hath testified falsely against his brother?¹⁴  — 'Ulla replied: Regarding evidence you can surely not argue thus. For that he¹⁵  is disqualified from giving evidence can be learnt by means of an a fortiori from the law in the case of Woman: for if Woman who is eligible to enter [by marriage] into the congregation [of Israel] is yet ineligible to give evidence,¹⁶  how much more must a slave who is not eligible to enter [by marriage] into the congregation [of Israel] be ineligible to give evidence? But why is Woman disqualified if not perhaps because she is not subject to the law of circumcision? How then can you assert the same In the case of a slave who is subject to circumcision?¹⁷  — The case of a [male] minor will meet this objection, for in spite of his being subject to circumcision he is disqualified from giving evidence.¹⁸  But why is a minor disqualified if not perhaps because he is not subject to commandments?¹⁹  How then can you assert the same in the case of a slave who is subject to commandments?²⁰  — The case of Woman will meet this objection, for though she is subject to commandments she is disqualified from giving evidence. The argument is thus endlessly reversible. There are features in the one instance which are not found in the other, and vice versa. The features common to both²¹  are that they are not subject to all the commandments²²  and that they are disqualified from giving evidence. I will therefore include with them a slave who also is not subject to all the commandments and should therefore also be disqualified from giving evidence. But why [I may ask] is the feature common to them²¹  that they are disqualified from giving evidence if not perhaps because neither of them is a man?²³  How then can you assert the same in the case of a slave who is a man? — You must therefore deduce the disqualification of a slave from the law applicable in the case of a robber.²⁴  But why is there this disqualification in the case of a robber if not because his own deeds caused it? How then can you assert the same in the case of a slave whose own deeds could surely not cause it?²⁵  — You must therefore deduce the disqualification of a slave from both the law applicable to a robber and the law applicable to either of these [referred to above].²⁶  Mar, the son of Rabina, however, said: Scripture says: 'The fathers shall not be put to death through²⁷  the children';²⁸  from this it could be inferred that no sentence of capital punishment should be passed on [the evidence of] the mouth of [persons who if they were to be] fathers would have no legal paternity over their children.²⁹  For if you assume that the verse is to be taken literally, 'fathers shall not be put to death through children', meaning, 'through the evidence of children', the Divine Law should have written 'Fathers shall not be put to death through their children'. Why then is it written 'children', unless to indicate that no sentence of capital punishment should be passed on [the evidence of] the mouth of [persons who if they were to be] fathers would have no legal paternity over their children? If that is so, would you also say that the concluding clause 'neither shall the children be put to death through the fathers' similarly implies that no sentence of capital punishment should be passed on [the evidence of] the mouth of [witnesses who as] children would have no legal filiation with respect to their fathers, and therefore argue that a proselyte³⁰  should similarly be disqualified from giving evidence?³¹  — It may be said that there is no comparison: It is true that a proselyte has no legal relationship to his ancestors, still he has legal relationship with his descendants, [but we may therefore] exclude a slave who has relationships neither with ancestors nor with descendants. For if you should assume that a proselyte is disqualified from giving evidence, the Divine Law should surely have written: 'Fathers shall not be put to death through their children', which would mean what we stated, that they would not be put to death through the evidence of children, and after this the Divine Law should have written: 'Neither shall children be put to death through fathers,' as from such a text you would have derived the two rules: one that children should not be put to death through the evidence of fathers and the other that no sentence of capital punishment should be passed on [the evidence of] the mouth of [witnesses who as] children have no legal filiation with respect to their fathers.³²  The disqualification in the case of a slave would surely have been derived by means of an a fortiori from the law applicable to a proselyte: for if a proselyte, who has no legal relationship to his ancestors but has legal relationship to his descendants, is disqualified from giving evidence, how much more must a slave who has legal relationship neither to ancestors nor to descendants be disqualified from giving evidence? But since the Divine Law has written: 'Fathers shall not be put to death through children', which implies that no sentence of capital punishment should be passed on [the evidence of] the mouth of [witnesses who as] fathers would have no legal paternity over their children, we can derive from this that it is only a [Canaanite] slave who has relationship neither to ancestors nor to descendants that will be disqualified from giving evidence, whereas a proselyte will be eligible to give evidence on account of the fact that he has legal paternity over his children. If you object, why did the Divine Law not write: 'Neither shall children be put to death through their fathers', and why did the Divine Law write 'And neither shall children be put to death through fathers', which appears to imply that no sentence of capital punishment should be passed [on the evidence of] the mouth of [witnesses who as] children would have no legal filiation with respect to fathers,³³  [my answer is that] since it was written, 'Fathers shall not be put to death through children', it was further written, 'neither shall children be put to death through fathers.'³⁴

A DEAF, MUTE AN IDIOT AND A MINOR ARE AWKWARD TO DEAL WITH. The mother of R. Samuel b. Abba of Hagronia³⁵  was married to R. Abba,³⁶  and bequeathed her possessions to R. Samuel b. Abba, her son. After her death

1. And a loss thus caused to the father.
2. Deut. XXV, 11.
3. Cf. supra p. 63.
4. The representatives of the anonymous opinion cited first in the Mishnah.
5. I.e., where an alibi was proved against them; cf. Glos.
6. Deut. XIX, 19.
7. Since a slave according to R. Judah could not he considered a brother.
8. Who consider a slave a brother.
9. Where the text in Deut. XVII, is states, One from among thy brethren shalt thou set king over thee.
10. For a proselyte is unanimously considered a brother.
11. Deut. XVII, 15.
12. Cf. Yeb. 45b; [and for this reason a slave is not eligible for kingship, not because he is not considered a brother.]
13. Which would not be in conformity with R. H. I., 8.
14. Deut. XIX, 18.
15. I.e., a slave.
16. V. Shebu. 30a.
17. Cf. Gen. XVII, 12 and Yeb. 48b.
18. Cf. B.B. 155b.
19. Cf. supra p. 250.
20. In the same way as a woman; cf. Hag. 4a.
21. I.e., in Woman and male Minor.
22. Cf. Kid. 29a.
23. As a minor has not yet reached manhood.
24. Who is disqualified from giving evidence though being a 'man' and eligible to enter by marriage into the Congregation; cf. Ex. XXIII, 1.
25. Having done nothing criminal.
26. I.e., a woman or male minor, the common feature being that they do not observe all commandments — the robber on account of his criminality, the woman or male minor because neither is subject to all the commandments.
27. E.V. 'for'.
28. Deut. XXV, 16.
29. Such as slaves; cf. supra p. 63.
30. Who has no legal filiation with respect to his ancestors; cf. Yeb. 62a.
31. Which would not be in conformity with Nid. 49b.
32. Which would have excluded also a proselyte.
33. [Excluding thus a proselyte.]
34. And while the phraseology of the concluding clause follows that of the commencing clause it is not usual in Scripture that the commencing clause should alter its phraseology because of the style of the concluding clause.
35. V. supra p. 27, n. 1.
36. He was not the father of R. Samuel as her former husband's name was also Abba.

R. Samuel b. Abba went to consult R. Jeremiah b. Abba who confirmed him in possession of her property. R. Abba thereupon went and related the case to R. Hoshaia. R. Hoshaia then went and spoke on the matter with Rab Judah who said to him that Samuel had ruled as follows: If a woman disposes of her melog¹  possessions during the lifetime of her husband and then dies, the husband is entitled to recover them from the hands of the purchasers.²  When this statement was repeated to R. Jeremiah b. Abba, he said: I [only] know the Mishnaic ruling which we have learnt: 'If a man assigns his possessions to his son, to take effect after his death,³  neither can the son alienate them [during the lifetime of the father] as they are then still in the possession of the father, nor can the father dispose of them since they are assigned to the son. Still, if the father sells them, the sale is valid until his death; if the son disposes of them the purchaser has no hold on them until the father dies.'⁴  This implies, does it not, that when the father dies the purchaser will have the possessions [bought by him from the son during the lifetime of the father], and this even though the son died during the lifetime of the father, in which case they had never yet entered into the possession of the son? For so it was laid down by R. Simeon b. Lakish, who said⁵  that there should be no difference whether the son died in the lifetime of the father, in which case the estate never came into the possession of the son, or whether the father died in the lifetime of the son, in which case the estate had entered into the possession of the son; the purchaser would [in either case] acquire title to the estate. (For it was stated:⁶  Where the son sold the estate⁷  in the lifetime of the father and it so happened that the son died during the lifetime of the father, R. Johanan said that the purchaser would not acquire title [to the estate], whereas Resh Lakish said that the purchaser would acquire title [to the estate]. R. Johanan, who held that the purchaser would not acquire title to the estate, would say to you that the Mishnaic statement, 'If the son disposed of them the purchaser would have no hold on them until the father dies, 'implying that at any rate after the death of the father the purchaser would own them, refers to the case where the son did not die during the lifetime of the father, so that the estate had actually entered into the possession of the son, whereas where the son died during the lifetime of the father, in which case the estate had never entered into the possession of the son, the purchaser would have no title to the estate even after the death of the father. This shows that in the opinion of R. Johanan a right to usufruct amounts in law to a right to the very substance [of the estate],⁸  from which it follows that when the son sold the estate [during the lifetime of his father] he was disposing of a thing not belonging to him.⁹  Resh Lakish on the other hand said that the purchaser would [in all cases] acquire title [to the estate after the death of the vendor's father], for the Mishnaic statement, 'If the son disposed of them the purchaser would have no hold on them until the father died,'implying that at least after the death of the father the purchaser would own them, applies equally whether the son did not die in the lifetime of the father, in which case the estate had entered into the possession of the son, or whether the son did die during the lifetime of the father, in which case the estate never did come into the possession of the son, [as in all cases] the purchaser would acquire title [to the estate as soon as the vendor's father died]. This shows that in the opinion of Resh Lakish a right to [mere] usufruct does not yet amount to a right in the very substance [of the estate], from which it follows that when the son sold the estate [during his father's lifetime] he was disposing of a thing that legally belonged to him.¹⁰  ) Now both¹¹  R. Jeremiah b. Abba and Rab Judah, concur with Resh Lakish,¹²  and R. Jeremiah b. Abba accordingly argues thus: If you assume that a right to usufruct amounts [in law] to a right in the very substance, why then on the death of the father, if the son has previously died during the lifetime of his father, should the purchaser have any title to the estate, since when the son sold it he was disposing of a thing not belonging to him? Does not this show that a right to [mere] usufruct does not amount to a right to the very substance?¹³  When, however, the argument was later repeated in the presence of Rab Judah, he said that Samuel had definitely stated: 'This case¹⁴  cannot be compared to that stated in the Mishnah.' On what ground? — R. Joseph replied: We should have no difficulty if the case in the Mishnah were stated in a reversed order, i.e., 'If a son assigns his possessions to his father [to take effect after the son's death, and the father sold them during the lifetime of the son and died before the son,' and if the law would also in this case have been that the purchaser acquired title to the possessions] it would indeed have been possible to prove from it that a right to usufruct does not amount to a right to the very substance. But seeing that what it actually says is, 'If a father assigns his possessions to his son,' [the reason why the sale by the son is valid is] that [since] he was eligible to inherit him, [the father by drawing up the deed must necessarily have intended that the transfer to the son should have legal effect forthwith].¹⁵  Said Abaye to him: Does only a son inherit a father, and does a father never inherit a son?¹⁶  It is therefore to be assumed that such a deed was drawn up only for the purpose of keeping the possessions out of the hands of the children,¹⁷  and similarly also here¹⁸  the deed might have been drawn up for the sole purpose of keeping the possessions out of the hands of his brothers!¹⁹  — The reason of [Samuel's remark that] 'This case cannot be compared to that stated in the Mishnah' is because of the [Rabbinic] enactment at Usha. For R. Jose b. Hanina said: It was enacted at Usha that if a woman disposes of her melog possessions during the lifetime of her husband and subsequently dies, the husband will be entitled to recover them from the hands of the purchasers.²⁰  R. Idi b. Abin said that we have been taught to the same effect: [Where witnesses state,] 'We can testify against a particular person that he has divorced his wife and paid her for her kethubah',²¹

1. Lit., 'plucking', but which denotes a wife's estate in which her husband has the right of usufruct and for which he hears no responsibility regarding any loss or deterioration, v. B.B. (Sonc. ed.) p. 206, n. 7.
2. According to which statement R. Abba and not R. Samuel would be entitled to the possessions in direct contradiction to the judgment given by R. Jeremiah.
3. [The father retaining for himself the right for life to the usufruct.]
4. B.B. 136b.
5. Ibid.
6. B.B. 136a.
7. [Assigned to him to be his after his father's death.]
8. As indeed followed by him in Git. 47b and elsewhere.
9. For since the father still had for life the right to usufruct he was for the time being the legal owner of the very substance of the estate, though the son had the reversionary right.
10. Since he had the reversionary right while the father possessed merely for time being the right to usufruct. [The bracketed passage is an interpolation and not part of R. Jeremiah's argument.]
11. [So MS.M. cur. edd. read, 'We now assume.']
12. [That the sale is valid even where the son died in the lifetime of the father.] Cf. Yeb. 36b.
13. Hence the gift of the mother to R. Samuel her son should become valid at her death in spite of the right to usufruct vested in R. Abba her second husband during her lifetime.
14. I.e., the gift of the mother to R. Samuel her son.
15. For if otherwise why was the deed necessary at all? [Whereas in the case of Samuel b. Abba, the deed was necessary for in the absence of one the estate would be inherited by the husband. V. B.B. 111b]
16. Cf. B.B. VIII, 1. The same argument if at all sound could thus accordingly be raised even in the case made out by you where a son bequeathed his possessions to his father.
17. Of the son who made the bequest in favour of his father, as otherwise the sons children would have been first to inherit him in accordance with Num. XXVII, 8.
18. Where the father bequeathed his possessions to a son.
19. I.e., from the brothers of the particular son in whose favour the bequest was made, as otherwise they would also have had a part in the inheritance on account of their being sons of the same father, and it was not intended that the transfer to the son should have legal effect forthwith. This being so, the case of Samuel b. Abba is on all fours with the Mishnah!
20. For the right of the husband to the possessions of his wife took effect at the time of the wedding and thus preceded the act of the sale. V. B.B. (Sonc. ed.) p. 208.
21. V. Glos.