Bava Kamma - Daf 90
- The law of יום או יומיים re: a slave whose produce is temporarily retained by the seller
A Baraisa discusses one who sells his slave but retains the slave’s work for thirty days. Rebbe Meir says: ראשון ישנו בדין יום או יומים– The first owner is subject to the rule of “a day or two,” (i.e., where if one strikes his own slave and he dies more than twenty-four hours later, the owner is exempt), מפני שהוא תחתיו – because he is under [his domain]. His ownership of the slave’s produce renders him the owner, because Rebbe Meir holds קנין פירות is like קנין הגוף. Rebbe Yehudah says the buyer has the יום או יומיים exemption, מפני שהוא כספו – because he is his property. He holds קנין פירות is not כקנין הגוף, so the buyer, who owns the physical slave, is the owner. Rebbe Yose says both have the יום או יומיים exemption, because he is uncertain if קנין פירות is like קנין הגוף, וספק נפשות להקל – and doubts involving capital punishment are ruled leniently. Rebbe Eliezer says neither has the יום או יומיים exemption, because he requires כספו המיוחד לו – property exclusively his.
- If עד נעשה דיין to rule on capital punishment or בושת
Rebbe Yehudah Nesiah once told an assailant who had struck someone’s ear, “Here I am and here is Rebbe Yose HaGlili; give him a Tyrian maneh (for בושת).” The Gemara asks: if he meant that he witnessed the incident, and can obligate payment based on his personal knowledge, למימרא דעד נעשה דיין – is this to say that a witness can become a judge based on what he saw? But a Baraisa teaches that if Sanhedrin witnessed a murder, Rebbe Tarfon says some of the judges testify before the others, and the others can judge (based on the received testimony). Rebbe Akiva said that since all of them were potential witnesses, none of them can judge the case. But even Rebbe Tarfon does not allow them to judge the case based on their own knowledge!? The Gemara answers: כגון שראו בלילה – the case is where they saw the murder at night, דלא למעבד דינא נינהו – when they were unable to judge the case (which must be judged by day). Therefore, they cannot judge based on their knowledge. If they witness the incident by day, like Rebbe Yehudah Nesiah, they could even judge based on their knowledge. Alternatively, Rebbe Yehudah Nesiah was merely referring to his opinion regarding the payment amount.
- If the weapon must be examined by the judges, or just the witnesses
A Baraisa quotes the passuk: "והכה איש את רעהו באבן או באגרוף" – and one strikes his fellow with a stone or a fist. Shimon HaTimni says the juxtaposition teaches: מה אגרוף מיוחד שמסור לעדה ולעדים – just as a fist is distinctive in that it is available to both the court and witnesses to be examined, so too any attack can only be judged if the weapon can be examined by the court (to determine if it was fit to inflict such harm; if it was not, the harm is attributed to the victim’s personal weakness). פרט לשיצתה מתחת יד העדים – This excludes where [the weapon] was lost by the witnesses and could not be examined by the court. Rebbe Akiva responded that even if the weapon was brought before the court, did they witness the attack to know how many times he struck his victim, or on what part of his body?! Furthermore, if someone pushed his fellow off a roof, must Beis Din travel to the site to examine the tower, or must the tower travel to Beis Din?! And if the tower collapsed, would it have to be rebuilt to be examined?! Rather, the Torah requires only that the weapon was examined by the witnesses.
