Bava Kamma - Daf 88
- The Source that an עבד כנעני is disqualified as a witness
In the Mishnah on Daf 87a, the Tanna Kamma said that one who injures an עבד כנעני makes all five payments, but Rebbe Yehudah said that עבדים do not have בושת payments. The Gemara explains that the Torah writes "אחיו" – brother regarding בושת, teaching: במי שיש לו אחוה – it applies with someone who has potential for brotherhood with Jews, excluding a slave, who cannot marry a Jewess. The Rabbonon counter: אחיו הוא במצות – he is [a Jew’s] brother regarding most mitzvos and is therefore included in בושת. The Gemara asks, according to the Rabbonon, a slave should be a valid witness, since they hold a slave fulfills the “brother” requirement written by witnesses!? The Gemara ultimately derives it from a צד השוה: A גזלן, who can marry a Jewess, is disqualified from testimony. Although מעשיו גרמו לו – his actions caused his disqualification, a woman and קטן are also disqualified. Although a woman is not fit for milah, and a קטן is not obligated in mitzvos, a גזלן is obligated in all mitzvos.
Mar brei d’Ravina darshened: "לא יומתו אבות על בנים" – fathers shall not be killed because of sons, teaching that people are not killed on the testimony of אבות שאין להם חייס בנים – fathers who have no genealogical relationship to their sons, nor to their fathers, i.e., slaves.
- האשה שמכרה בנכסי מלוג בחיי בעלה
Rav Shmuel bar Abba of Hagronia’s mother, after marrying Rebbe Abba, wrote over her property to her son Rav Shmuel. After she died, Rebbe Yirmiyah bar Abba established Rav Shmuel as the property’s owner. Rav Yehudah ruled otherwise, quoting Shmuel: האשה שמכרה בנכסי מלוג בחיי בעלה ומתה – if a woman sold melog property during her husband’s lifetime and then died, הבעל מוציא מיד הלקוחות – the husband collects the property from the purchasers. Thus, Rebbe Abba can take the property from Rav Shmuel bar Abba. Rebbe Yirmiyah bar Abba explained his position, that since the קנין פירות – ownership of produce that the husband had in her property is not tantamount to קנין הגוף – ownership of the property itself (presented below), he cannot prevent her from giving that property to her son. However, Shmuel’s ruling was based on "תקנת אושא" – the enactment of Usha, where they decreed to strengthen the husband’s right to her property, allowing him to collect it from her purchasers after she dies, as Shmuel said.
- If קנין פירות כקנין הגוף re: preventing a sale
Rebbe Yirmiyah bar Abba quoted a Mishnah, discussing one who writes over his properties to his son to acquire after his death, whereby the son owns the physical land now, but the father retains the right to its produce until he dies. The Mishnah concludes that if the son sold the properties, אין ללוקח עד שימות האב – the buyer has nothing until the father dies, indicating that he does acquire them when he dies. If the son dies before the father, without owning the produce himself, Rebbe Yochanan says: לא קנה לוקח – the purchaser does not acquire the property when the father dies. This is because he holds: קנין פירות כקנין הגוף דמי – ownership of the produce is tantamount to ownership of the principal itself; וכי זבין לאו דידיה זבין – therefore, when [the son], who owned the property, sold it, he was selling that which was not his, since the father retained the right to produce. Reish Lakish says that the buyer does acquire the property after the father dies, although the son died first, and he says this case is included in the above Mishnah. This is because he holds the father’s קנין פירות is not כקנין הגוף; וכי קא זבין דידיה קא זבין – therefore, when [the son] sold it, he sold that which is his.
