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Bava Kama, 74


QUESTION: The Mishnah states that when two witnesses testify that a person stole an animal, and then one witness, or the Ganav himself, testifies that he slaughtered the animal, he pays Tashlumei Kefel but not Arba'ah v'Chamishah. The Gemara asks that it is obvious that one witness cannot obligate him to pay Arba'ah v'Chamishah. The Gemara answers that the Mishnah is teaching that just like the Ganav will be Chayav to pay Arba'ah v'Chamishah when another witness joins the first witness, so, too, he will be Chayav to pay in a case where he first admit that he slaughtered the animal, and then two witnesses came and testified that he slaughtered the animal. The Gemara says that this is not like the view of Rav Huna in the name of Rav, who says that when one admits to a Kenas and then witnesses come afterward, he is still Patur from paying the Kenas.

Why does the Gemara quote this opinion in the name of "Rav Huna in the name of Rav?" In the Gemara elsewhere (see later, 75a, where the Gemara quotes the Machlokes between Rav and Shmuel regarding this matter), it is Rav himself who states this opinion! Why does the Gemara here not quote Rav directly?

ANSWER: The TORAS CHAIM answers that the Machlokes between Rav and Shmuel later (75a) might only be in a case where the person admits to everything. In such a case, Rav says that his Hoda'ah exempts him, even when witnesses come afterward. In the case of our Gemara, though, where the person admits only to part of the obligation, we might have thought that Rav would agree that when witnesses come afterward, that the person is Chayav to pay the Kenas. Therefore, the Gemara quotes Rav Huna in the name of Rav who says that even in such a case, the person is exempt when witnesses come later. Rav Huna clearly maintains that this was Rav's opinion, while from the words of Rav alone it is not clear whether Rav was of this opinion.

QUESTION: Rav Chisda questions Rav Huna from a Beraisa which relates that Raban Gamliel blinded the eye of Tevi his servant, and Raban Gamliel rejoiced with great joy because Tevi was thereby able to be set free (and he was unable to set him free in the normal manner of giving him a Get Shichrur, because one who frees his servant transgresses a Mitzvas Aseh).

Why was Raban Gamliel so happy? We learned earlier (26b) that only when the master blinds his servant's eye *intentionally* does the servant go free, as derived from the verse (Shemos 21:26). Certainly Raban Gamliel did not do an Aveirah and intentionally hit his servant, but rather it must have been an accident which occurred. Why, then, was Raban Gamliel happy? An Eved does not go free when he loses his eye through an accident!

ANSWER: The YA'AVETZ and others answer that Raban Gamliel held like the Chachamim who argues with Raban Shimon ben Gamliel and maintains that the Eved goes free even when the master blinds his eye unintentionally.

The KOVA YESHU'AH adds that we find that the KESEF MISHNAH (Hilchos Avadim 5:11) writes that the RAMBAM holds that the Chachamim -- who argue with Raban Shimon ben Gamliel and maintain that the Eved goes free even when the master blinds him unintentionally -- nevertheless agree that the Eved does *not* go free when the master had no intention to do anything to the eye at all. They hold that he goes free only when the master was doing something with the eye (for example, he was doing a medical procedure) and he accidentally blinded him.

According to this, the Kova Yeshu'ah writes that although Raban Gamliel did not have intention to harm the eye of his Eved, he nevertheless was doing some act to his eye (such as a medical procedure) and he accidentally blinded him, and thus the Eved goes free. (I. Alshich)

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