1) FORMS OF BODILY HARM WHICH WARRANT THE RELEASE OF AN EVED KENA'ANI
QUESTION: A Beraisa teaches that when the master causes the loss of any of his Eved Kena'ani's twenty-four ends of limbs ("Roshei Evarim") which cannot become Tamei with "Michyah," he must release the Eved. Rebbi adds that an Eved goes free with "Sirus." Ben Azai adds that an Eved goes free even when his master damages his tongue ("Lashon").
RASHI points out that although the Beraisa records a comprehensive list of limbs whose loss frees the Eved, it does not mention "tooth" and "eye" since those limbs are written explicitly in the Torah. Why, though, does the Beraisa omit mention of the dislocation of the jaw-bone which, according to the Gemara earlier (24b), warrants the release of the Eved (even though it does not prevent the jaw-bone from serving the body)? In fact, the Gemara there implies that any bodily damage warrants the Eved's release, and not only damage to the twenty-four Roshei Evarim. How is the Gemara there to be reconciled with this Beraisa?
ANSWERS: The Rishonim express several opinions about which form of bodily damage warrants the release of the Eved.
(a) The TOSFOS RID writes that any bodily damage which has the status of a blemish (Mum) that disqualifies an animal from being offered as a Korban warrants the release of the Eved. For example, if the master cuts the eyelid or lip of the Eved, the Eved goes free. The Tosfos Rid infers this from the Gemara here which compares the laws of blemishes of a Bechor to the laws of freeing an Eved because of damage to the tongue. He explains that the Beraisa (25a) mentions that an Eved goes free "with Roshei Evarim" simply because it follows 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 adds only "Sirus" and "Lashon." Apparently, he understands that the Beraisa mentions these two types of bodily damage because one might have thought that an Eved does not go free when they are damaged. One might have thought that damage to the tongue or damage of "Sirus" constitutes damage to an internal organ (as the Gemara discusses here) which does not warrant the release of the Eved. Therefore, the Beraisa teaches that these organs are considered external and their loss also frees the Eved. The Beraisa does not need to mention that an external blemish, such as a slit eyelid, frees the Eved, because that is obvious.
The Tosfos Rid finds support for his explanation from the Beraisa (24a) which does not mention that an Eved "goes free with twenty-four Roshei Evarim," but rather that he "goes free with Roshei Evarim," with no mention of the number.
This approach may also answer the question of the RASHBA (24b), who asks why the extraction of a useless tooth does not free the Eved, like the removal of a blinded eye. The answer is that the fact that the loss of a useful tooth does free the Eved does not prove that a tooth is considered a limb (Ever), because damage to any part of the body can free the Eved. Since the tooth is not considered an Ever, the loss of a useless tooth is not comparable to the removal of a blinded eye. (See PNEI YEHOSHUA, 24b.)
(b) The Tosfos Rid cites TOSFOS in Bechoros who infers from the law that an Eved goes free with the loss of his eye that only the actual loss of the eye itself frees the Eved, but not damage done to the eyelid. Tosfos writes that the laws of blemishes of Korbanos are more strict because the verse says, "Kol Mum Ra" (Devarim 15:21). In contrast, only damage to an actual Ever releases an Eved.
This also seems to be the opinion of the RASHBA (see end of (a) above) and RASHI (24a, DH Roshei Evarim; 24b, DH Yotzei Bo; 25a, DH Rebbi Omer), who emphasize that the loss of any of twenty-four Roshei Evarim frees an Eved.
According to these Rishonim as well, the Beraisa does not list every limb whose loss frees an Eved. Rather, when the Beraisa teaches that an Eved goes free with the loss of one of the twenty-four Roshei Evarim (tips of limbs), it implies that he also goes free with the removal of a limb which is not a Rosh Ever (such as the jaw-bone), as 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 mentioned above according to the Tosfos Rid).
(c) The RAMBAM (Hilchos Avadim 5:10) writes that if the master damages the jaw-bone of his Eved, the Eved goes free because a fractured or dislocated jaw-bone prevents the teeth from serving the body in their normal manner (as the Eved cannot chew his food with a broken jaw bone).
The Rambam's words seem to conflict with the Gemara (24b) which states that the dislocation of the jaw-bone does not prevent it from serving the body. (See KESEF MISHNEH and Acharonim.)
The YOSEF DA'AS suggests that according to the Rambam, the Gemara simply means that the dislocation of the jaw-bone indirectly prevents 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 teeth and knocking them out). The Gemara answers that the verse "Yeshalchenu" teaches that even if the master does not touch the teeth but indirectly renders them unable to serve the body, he must free the Eved.
The Yosef Da'as points out that according to this understanding, the words of the Beraisa are very precise. The Beraisa states that the dislocation of the jaw-bone "causes the Eved to go free with them (Bahem)," a reference to damage to the teeth. Damage to the jaw-bone itself does not warrant the release of the Eved. (Rashi and other Rishonim have the Girsa of "Yotzei Bo" and not "Bahem.")
According to the Rambam, there is no source that the Eved goes free with damage to any part of the body other than the twenty-four Roshei Evarim and the other Evarim mentioned in the Beraisa of Rebbi and Ben Azai. Perhaps the Gemara understands that only damage to the tip of an Ever frees 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.) This explains why the Beraisa (24a) states that the Eved goes free with "Roshei Evarim" and not "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 "Sirus.")
According to the Rambam, the Beraisa here is all-inclusive and leaves out no form of damage that frees the Eved, except for damage to the tooth and eye which are written explicitly in the Torah.
2) FORMS OF ACQUISITION OF ANIMALS
OPINIONS: The Mishnah teaches that according to Rebbi Meir and Rebbi Eliezer, a Behemah Gasah is acquired through Mesirah, and a Behemah Dakah through Hagbahah. The Chachamim maintain that a Behemah Dakah may be acquired through Meshichah. The Chachamim in the Beraisa cited by the Gemara argue that a Behemah Gasah may be acquired through Meshichah. (See Chart.)
Why, according to the Tana Kama (Rebbi Meir), may a Behemah Dakah be acquired only through Hagbahah and not through other forms of Kinyan, such as Mesirah and Meshichah?
Moreover, does Rebbi Meir maintain that a Behemah Gasah may 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 may be acquired only through Mesirah and not through Meshichah.
Rashi's words may be understood as follows. The Gemara in Bava Basra (86a) teaches that any object which is lifted up easily may be acquired only through Hagbahah and not through Meshichah. Apparently, the logic for this is that Hagbahah is a stronger form of acquisition than Meshichah because it more clearly demonstrates the person's ownership of the object. Even if both Kinyanim are mid'Oraisa (and Hagbahah is derived from "v'Nasan b'Yadah" (Devarim 24:1) of a Get (see Yad Ramah to Bava Basra 5:26) while Meshichah is derived from "mi'Yad Amisecha" (Vayikra 25:14; Kidushin 26a)), the Torah requires that one lift an object which is easily lifted since he does not show full ownership by merely pulling it. (According to those who maintain that Meshichah is a Kinyan d'Rabanan, the Rabanan did not institute Meshichah when Hagbahah can be done easily.)
This is the reason why Rebbi Meir requires a Kinyan Hagbahah for a Behemah Dakah. Since it is lifted easily, one acquires it only with Hagbahah. In contrast, a Behemah Gasah cannot be lifted easily, and thus one acquires it only with Mesirah, since Mesirah is the most common act that shows one's ownership of a Behemah Gasah. The Gemara in Bava Basra (86b) explains that the Rabanan who argue with Rebbi Meir agree with this principle, but they allow a Behemah Dakah to be acquired through Meshichah because they maintain that even a Behemah Dakah cannot be lifted easily since it clings to the ground with its claws when one attempts to lift it.
Rashi may understand that a Behemah Gasah may be acquired through Mesirah and not Meshichah for the same reason. Since Meshichah is a stronger show of ownership than Mesirah, when Meshichah is normally done with a certain type of animal, that animal may be acquired only through Meshichah and not through Mesirah. This is why the Chachamim rule that a Behemah Dakah must be acquired through Meshichah. However, a Behemah Gasah is not normally pulled with Meshichah. The strongest show of ownership of a Behemah Gasah is Mesirah, and that is why Mesirah must be used to acquire a Behemah Gasah.
According to this approach, Rashi understands that the Gemara in Bava Basra teaches not only that Meshichah works for something with which Hagbahah cannot be done easily, but that for such an object only Meshichah works and not Hagbahah, since Hagbahah is not a common sign of ownership for this object. This is why Rashi writes that since Meshichah is not a common sign of ownership, only Mesirah works to acquire a Behemah Gasah, while 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 effect 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 may 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 (DH Behemah Gasah #2), however, does not accept this approach. Tosfos and the other Rishonim write that a stronger sign of ownership (such as Hagbahah) always makes a Kinyan, even when it is not commonly done to this type 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 to exclude only weaker signs of ownership but not stronger signs of ownership. (Consistence with his reasoning, Tosfos here interprets Rashi's words differently from the way they are explained above.)
Based on 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 such an animal. A lesser sign of ownership does not work (as 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 be acquired even through Mesirah, and that it certainly may be acquired through Meshichah, which is a stronger form of Kinyan, and all the more so it may be acquired through Hagbahah.
Tosfos here proposes that Rashi, who writes that Meshichah cannot be used to acquire a Behemah Gasah according to Rebbi Meir, must understand that Meshichah is a weaker form of Kinyan than Mesirah. Tosfos challenges this from the Gemara in Bava Metzia (8b) which teaches that even according to Rebbi Meir and Rebbi Eliezer, a Behemah Gasah may 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, he does not intend to exclude Meshichah. Rather, Meshichah certainly works to acquire the animal because it is a stronger form of Kinyan.
According to our understanding of Rashi, Rashi on the Mishnah may allude to the answer to this question. 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 explained above, 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 animal 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 certainly may 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 may be acquired with Hagbahah (as Tosfos writes). Apparently, the reason the Chachamim disagree and rule that a Behemah Gasah may be acquired with Meshichah is that they maintain that Meshichah is as strong a form of Kinyan as Mesirah.