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Kidushin, 25

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.


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 number.

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 Acharonim.)

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 "Sirus.")

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.


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.

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