THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
KIDUSHIN 24-30 (9-15 Sivan) - This week's study material has been dedicated
by Mrs. Rita Grunberger of Queens, N.Y., in loving memory of her husband,
Reb Yitzchok Yakov ben Eliyahu Grunberger. Irving Grunberger helped many
people quietly in an unassuming manner and is dearly missed by all who knew
him. His Yahrzeit is 10 Sivan.
1) THE TYPES OF BODILY DAMAGE WHICH FREES AN EVED KENA'ANI
QUESTION: A Beraisa teaches that the twenty-four ends of limbs ("Roshei
Evarim") that cannot become Tamei with "Michyah" also free an Eved Kena'ani
when his master destroys any one of them. Rebbi adds that an Eved also goes
free with "Sirus," and Ben Azai says that an Eved goes free even when the
master damages his tongue ("Lashon").
It is clear from the words of Rebbi and Ben Azai that the Beraisa is
providing a comprehensive list of limbs whose loss frees the Eved. RASHI
points out that the Beraisa does not mention "tooth" and "eye" since those
are written explicitly in the Torah. Why, though, does the Beraisa omit
mention of the dislocation of a jaw bone, which, according to the Gemara
earlier (24b), frees the Eved (even though it does not prevent the jaw bone
from serving the body)? In fact, the Gemara there implies that *any*
physical damage done to the Eved will free him, and the twenty-four Roshei
Evarim are no different than any other part of the body! How can that be
reconciled with the Beraisa here?
ANSWERS: There are a number of opinions among the Rishonim regarding which
type of bodily damage frees the Eved.
(a) The TOSFOS RID writes that anything that is considered a Mum that
invalidates an animal from being brought as a Korban will free the Eved if
the master inflicts such a blemish on him. For example, if the master slices
the eyelid or lip of the Eved, the Eved goes free. He infers this from the
Gemara here which compares the Halachos of blemishes of a Bechor to the
Halachos of freeing an Eved with regard to the tongue. He explains that the
reason the Beraisa (25a) states that an Eved goes free "with Roshei Evarim"
is simply because it was following the wording of the Mishnah in Nega'im,
which discusses the Roshei Evarim with regard to "Michyah," a sign that a
Nega of Tzara'as is Tamei.
The Tosfos Rid does not explain why the Beraisa here adds *only* "Sirus" and
"Lashon." Apparently, he understands that the Beraisa mentions these two
types of bodily damage because they present a greater Chidush. We might have
thought that damaging the tongue, or inflicting damage of "Sirus," is
considered damage to an internal organ, as the Gemara discusses in our
Sugya, and therefore the Beraisa teaches that the loss of these organs also
frees the Eved, because they are considered to be external. An external
blemish such as a slit eyelid certainly frees the Eved.
The Tosfos Rid finds support for this from the fact that the Beraisa (24a)
does not say that an Eved "goes free with *twenty-four* Roshei Evarim," but
rather that he "goes free with Roshei Evarim," with no mention of the
This approach might also provide an answer for the question of the RASHBA
(24b), who asks why the removal of a dead, useless tooth does not free the
Eved. The answer is that even though the removal of a useful tooth does free
the Eved, that does not prove that the tooth is considered an Ever, a limb,
since damage to any part of the body can free the Eved. Since the tooth is
not considered an Ever, removing a useless tooth is not comparable to
removing a blinded eye. (See PNEI YEHOSHUA 24b.)
(b) Tosfos Rid cites TOSFOS in Bechoros who infers from the fact that an
Eved goes free when his eye is removed that only removal of the eye itself
can free the Eved, but not damage done to the eyelid. Tosfos writes that the
Halachos of blemishes of Korbanos are more severe, since the verse says,
"*Kol* Mum Ra" (Devarim 15:21). However, with regard to freeing an Eved,
only damage to an actual Ever can free the Eved.
This also seems to be the opinion of the RASHBA (see end of (a) above), and
of RASHI (24a, DH Roshei Evarim; 24b, DH Yotzei Bo; 25a, DH Rebbi Omer), who
emphasizes that there are twenty-four Roshei Evarim that free an Eved.
According to these Rishonim, we must again answer that the Beraisa is not
listing every limb whose loss frees an Eved. Rather, it is understood from
the fact that the Beraisa teaches that he goes free with the twenty-four
Roshei Evarim that he also goes free with the removal of a limb which is not
a Rosh Ever, the tip of a limb (such as the jaw bone), since the tooth and
eye themselves are not tips of Evarim. Rebbi and Ben Azai mention only
"Sirus" and "Lashon" in order to teach that they are considered external
organs (as we mentioned above according to the Tosfos Rid).
(c) The RAMBAM (Hilchos Avadim 5:10) writes that if the master damages the
jaw bone of the Eved, the Eved goes free because the master has prevented
the teeth of the Eved from being able to serve the body in their normal
manner (since the Eved can no longer chew his food with a broken jaw bone).
This seems to contradict the Gemara (24b) which says that dislocating the
jaw bone does *not* prevent it from serving the body! (See KESEF MISHNAH and
The YOSEF DA'AS suggests that according to the Rambam, the Gemara simply
means that dislocating the jaw bone is an *indirect* way of preventing the
teeth from serving the body, and perhaps the Eved should not go free unless
the master *directly* prevents the teeth from serving the body (such as by
hitting the Eved's teeth and knocking them out). The Gemara answers that we
learn from "Yeshalchenu" that even if the master does not touch the teeth,
he must free the servant if he causes the teeth, even indirectly, not to be
able to serve the body.
He points out that according to this understanding, the words of the Beraisa
are very precise when it says that dislocating the jaw bone "causes the Eved
to go free *with them* (Bahem)," referring to damage to the *teeth* and not
merely due to the damage to the jaw bone itself. (Rashi and other Rishonim
had the Girsa of "Yotzei *Bo*" and not "Bahem.")
According to the Rambam, there is absolutely no source to show that the Eved
can be freed with any damage other than damage to the twenty-four Roshei
Evarim and the other Evarim mentioned in the Beraisa of Rebbi and Ben Azai.
Perhaps the Gemara understood that only damage to the tip of an Ever can
free an Eved, because the tooth and eye are also like tips of an Ever, since
they protrude from the rest of the body. (They cannot be affected by a Nega,
since only flesh can have a Nega of Tzara'as.) Therefore, only damage to
Roshei Evarim can free the Eved. That is why the Beraisa (24a) says that the
Eved goes free with "*Roshei* Evarim" and not just "Evarim." (Perhaps,
according to the Rambam, the Beraisa does not mention *twenty-four* Roshei
Evarim since the Eved also goes free with damage to the tongue or with
According to the Rambam, the Beraisa in our Sugya is all inclusive and does
not leave out any damage that frees the Eved except for damage to the tooth
and eye, which are already written explicitly in the Torah.
2) THE WAYS OF ACQUIRING ANIMALS
OPINIONS: The Mishnah teaches that according to Rebbi Meir and Rebbi
Eliezer, a Behemah Gasah can be acquired through Mesirah, and a Behemah
Dakah through Hagbahah. The Chachamim argue that a Behemah Dakah can be
acquired through Meshichah. The Chachamim in a Beraisa cited by the Gemara
argue that a Behemah Gasah can be acquired through Meshichah. (See Chart.)
Why, according to the Tana Kama (Rebbi Meir), can a Behemah Dakah be
acquired only through Hagbahah and not through other forms of Kinyan, such
as Mesirah and Meshichah?
In addition, does Rebbi Meir hold that a Behemah Gasah can be acquired
*only* through Mesirah (and not through Meshichah), or *even* through
Mesirah (and certainly through Meshichah and Hagbahah)?
(a) RASHI on the Mishnah explains that according to Rebbi Meir, a Behemah
Gasah can be acquired *only* through Mesirah and not through Meshichah.
It is possible to interpret Rashi's words as follows. The Gemara in Bava
Basra (86a) says that any object which is easily lifted up can *only* be
acquired through Hagbahah, lifting, and not through Meshichah. The logic for
this appears to be that Hagbahah is a stronger act of acquiring ownership
than is Meshichah, because when a person lifts an object it demonstrates
more clearly that he owns it, than when he pulls an object. Even if both
Kinyanim are mid'Oraisa (Hagbahah is learned from "v'Nasan b'Yadah" (Devarim
24:1) of Get, and Meshichah is learned from "mi'Yad Amisecha" (Vayikra
25:14; 26a)), the Torah requires that one lift an object that can be easily
lifted, since he does not show full ownership by simply pulling it.
(According to those who maintain that Meshichah is a Kinyan d'Rabanan, the
Rabanan did not institute Meshichah when Hagbahah can easily be done.)
This is the reason why Rebbi Meir requires a Kinyan Hagbahah for a Behemah
Dakah. Since a Behemah Gasah cannot be easily lifted, the most common act
that shows ownership is considered a Kinyan, and that act, for a Behemah
Gasah, is Mesirah. The Gemara in Bava Basra (86b) explains that the Rabanan
who argue with Rebbi Meir also agree to this principle. However, they allow
a Behemah Dakah to be acquired through Meshichah since even a Behemah Dakah
cannot easily be lifted, since it clings to the ground with its claws when
one attempts to lift it.
Rashi might be understanding the reason why a Behemah Gasah may be acquired
through Mesirah and not through Meshichah in the same vein. Meshichah is a
stronger Kinyan, a stronger sign of ownership than Mesirah, and therefore
when Meshichah is normally done with this kind of animal, the animal can
only be acquired through Meshichah and not through Mesirah. This is why the
Chachamim say that a Behemah Dakah must be acquired through Meshichah.
However, a Behemah Gasah is not normally pulled with Meshichah, and
therefore the best act of acquisition is Mesirah, and that is why Mesirah
can acquire a Behemah Gasah.
According to this, Rashi is taking the Gemara in Bava Basra a step further.
He is saying not only that Meshichah works for something on which Hagbahah
cannot easily be done, but that when Hagbahah cannot easily be done, then
*only* Meshichah can be used for a Kinyan and not Hagbahah, since Hagbahah
is not a common sign of ownership for this object. That is why he writes
with regard to Mesirah that Mesirah works to acquire a Behemah Gasah since
Meshichah is not a common sign of ownership, and because of this,
Meshichah -- even if it is done -- cannot acquire the animal. In other
words, the Kinyanim are mutually exclusive. Only the most common sign of
ownership can make a Kinyan, and any other type of Kinyan -- whether it is a
stronger sign of ownership but is uncommon, or it is a weaker sign of
ownership that is common -- does not work.
Support for this approach can be found in the Gemara in Bava Basra (86a),
which implies that an object which is not normally lifted cannot be acquired
through Hagbahah, as TOSFOS there (DH l'Tzedadin) points out (see also the
RASHBAM there, DH l'Tzedadin).
(b) TOSFOS (second DH Behemah Gasah), however, does not accept this
approach. Tosfos and the other Rishonim write that a stronger sign of
ownership (such as Hagbahah) can *always* make a Kinyan, even when it is not
commonly done to this kind of animal. Tosfos in Bava Basra (loc. cit.) finds
support for this in another part of the Sugya there. Accordingly, when the
Mishnah or Beraisa mentions that a certain Kinyan may be used, it means only
to exclude *weaker* signs of ownership, but not to exclude stronger signs of
ownership (consistence with his reasoning, Tosfos here interprets Rashi's
words in our Sugya differently than we explained them above).
Following this approach, the RASHBA and RITVA explain the Mishnah as
follows. According to Rebbi Meir, only Hagbahah may be used to acquire a
Behemah Dakah, since it is common to lift it, and therefore a lesser sign of
ownership will not work (as we explained above according to Rashi). When the
Mishnah says that according to Rebbi Meir, a Behemah Gasah may be acquired
through Mesirah, he means that it may *even* be acquired through Mesirah,
and that it *certainly* may be acquired through Meshichah, which is a better
form of Kinyan, and all the more so through Hagbahah.
Tosfos here proposes that Rashi, who writes that Meshichah cannot be used to
acquire a Behemah Gasah according to Rebbi Meir, must be understanding that
Meshichah is a *weaker* form of Kinyan than Mesirah. Tosfos challenges this
from the Gemara in Bava Metzia (8b), in which we see that even according to
Rebbi Meir and Rebbi Eliezer, a Behemah Gasah can be acquired through an act
of "Manhig" (leading the animal), which is a form of Meshichah. Obviously,
when Rebbi Meir in the Mishnah says that a Behemah Gasah is acquired through
Mesirah, it does not mean to exclude Meshichah. Rather, Meshichah certainly
works to acquire the animal because it is a stronger form of Kinyan.
According to the way we explained Rashi, Rashi might have alluded to the
answer to this question in our Mishnah. Rashi explains that Meshichah means
"to cause the animal to walk *in front of oneself*." This is not the same as
"Manhig," which means to walk in front of the animal. Rashi, as we
explained, understands that Meshichah is a *stronger* form of Kinyan than
Mesirah. Making the animal walk in front of oneself might also be a stronger
form of Kinyan than leading the Behemah from in front of it. Hence, "Manhig"
is a lesser form of Kinyan, and is on the same level as Mesirah. That is why
the Kinyanim of Manhig and Mesirah are *not* mutually exclusive, whereas
Meshichah and Mesirah *are* mutually exclusive.
(c) RABEINU TAM cited by Tosfos explains that Mesirah is indeed a stronger
form of Kinyan than Meshichah. Like the other Rishonim, Rabeinu Tam learns
that wherever a weaker form of Kinyan may be used, the stronger forms of
Kinyan may certainly be used. This leads him to conclude that according to
Rebbi Meir, a Behemah Gasah may be acquired with Mesirah but *not* with
Meshichah (as Rashi writes). On the other hand, the animal *can* be acquired
with Hagbahah (as Tosfos writes). Apparently, the reason the Chachamim argue
and rule that a Behemah Gasah *can* be acquired with Meshichah is because
they maintain that Meshichah *is* as strong of a form of Kinyan as Mesirah.