Bet Midrash Virtuali
BET MIDRASH VIRTUALI

of the Rabbinical Assembly in Israel

Red Line

RABIN MISHNAH STUDY GROUP

Green Line

TRACTATE BAVA KAMMA, CHAPTER EIGHT, MISHNAH FOUR:

Striking a deaf-mute, an imbecile or a minor is bad. One who injures them is liable but if they cause injury to others they are not liable. Striking a bondman or a woman is bad. One who injures them is liable but if they cause injury to others they are not liable, but they may [have to] pay later on. If the woman is divorced and if the bondman is freed they are liable for payment.

EXPLANATIONS:

1:
A deaf-mute was not considered to be legally competent. (Modern understanding has progressed!) Also an imbecile - someone who is non compos mentis - is also not legally competent. Neither is a minor - a girl who is not yet 12 years old and a boy who is not yet 13 years old.

2:
Our mishnah teaches that "striking" these people is bad. "Striking" here refers to any act - advertent or inadvertent - that can injure them in some way, either physically or emotionally.

3:
The use of the descriptive 'bad' suggests that such acts are unethical even if they cannot be punished at law. However, if the victim is injured physically in the legal sense of the Hebrew word nezek the assailant can be sued and be required to pay compensation. Because they are not legally competent if one of these three persons assails someone else they cannot be sued.

To be continued.

DISCUSSION:

Noa Raz writes:

I do not understand something in the mishnah which you sent today [BK079]. It is written that a non-Jewish bondman who converts must observe the mitzvot of a Jewish woman and after his manumission he must observe the mitzvot of a Jewish male. This seems to me to be slightly zany. Could you please explain for me?

I respond:

My response will have to be rather long and detailed in order to be easily understood.

Remember that after one year with a Jewish master a non-Jewish bondman must either be resold to a non-Jew or must agree to convert to Judaism in order to remain with his master. If he consents to conversion he is circumcised and must bath in a mikveh. He is now a full Jew, like any other convert. The issue is now which of the mitzvot is he required to observe as a bondman. He cannot be required to observe all of them, just as a Jewish woman was not required to observe all of them. (Modern Masorti Judaism sees this differently but we must go with the sages to understand this issue.)

When we studied Tractate Kiddushin we learned the following mishnah [Kiddushin 1:7]:

... All positive, time-specific mitzvot are incumbent upon men whereas women are excused; all positive mitzvot that are not time-specific are incumbent upon both men and women; all negative commandments, be they time-specific or not, are incumbent upon both men and women...

At that time I explained as follows:

A positive mitzvah is one that requires us to do something - acts of comission; a negative mitzvah is one that requires us to refrain from doing something - acts of omission. A time-specific mitzvah is one that has to be performed at a certain time (of day, month, year) and whose performance is ritually meaningless if performed at the non-prescribed time. An example of a positive mitzvah would be "Rise before the hoary head" - i.e. show respect to the aged at all times and in all places. An example of a negative mitzvah would be "Do not steal". An example of a positive time-specific mitzvah would be "You must reside in sukkot for seven days" - choosing to reside in a sukkah at any time other than during the festival of Sukkot is a ritually meaningless act.

We must now ask ourselves why it is that the sages released Jewish women from observing 'positive time-specific' mitzvot.

It is because by the act of kiddushin the husband assumes tutelary rights regarding his wife. We instinctively recoil at the idea that one person can have 'tutelary rights' over another - by which I mean the right to determine how he or she will spend their time and so forth. Parents have tutelary rights over their minor children, and this is understood. In ancient times masters had tutelary rights over slaves, and once we adjust mentally to the 'normalities' of a slave economy, we can understand the master-slave relationship, however much we may disapprove. It follows that upon her marriage, a wife ceases to be independent, and becomes subject to the acquired tutelary rights of the husband.

In the discussion in the Gemara on this point [Kiddushin 30b], whose starting point is the mutual duties of parents and children, it is stated there that the origin in the [Written] Torah for the mishnah's requirement of duties of offspring towards parents is in Leviticus 19:3

Each man must respect his mother and father.

The inclusion of daughters is based on the fact that the verb in Hebrew is in the plural. That being the case, the Gemara asks why does the verse start with the noun 'man'? The answer given is now easy for us to understand (even if it is difficult to swallow):

A man is always a free agent to do his parents' bidding, whereas a wife is not such a free agent because someone else has tutelary rights over her.

There can be no doubt that our interpretation is correct, since the Gemara continues:

Rav Iddi bar Avin reports that Rav says that when a wife is divorced she becomes a man's equal again in this respect [since she is once again a free agent].

It will now be easy to see that the situation of the eved kena'ani is identical to that of the Jewish wife: his master has tutelary rights over him. Therefore the eved kena'ani observes all the mitzvot that a Jewish woman observes and is excused from observing 'positive time-specific' mitzvot. However, if the bondman is manumitted the erstwhile master no longer has any tutelary rights over him so he must now observe all the mitzvot as must any other Jewish man.

I hope this has clarified the matter.

Green Line