BK 88 - Brotherhood

The Mishna (87a) says that according to R' Yehuda, we do not apply the damage of embarrassment to a slave. The gemara explains that this is because the Torah uses the word "אחיו"- his brother, in reference to the one getting embarrassed.

Rashi explains that since a non-Jewish slave can not marry a Jew, he is not called your brother.

This would seem to indicate that one can only be called your brother if he can marry your sister and become your brother-in-law.

The mesoras hashas has a second explanation from Rashi, and that is that the non-Jewish slave doesn't have brotherhood at all, even with his own kin, as we find he would be able to marry his own sister or his brother's ex-wife.

Interestingly, the difference between the first and second understanding of Rashi is that in the first explanation, he doesn't have brotherhood with Jews. In the second explanation, he doesn't have brotherhood with anyone.

Something that needs explanation is that according to the second understanding of Rashi, that he doesn't have brotherhood at all, where is there an indication from the passuk that this is what brotherhood means? If anything, the verse says that the damage was caused in an altercation between "איש ואחיו" - a man and his brother. This would seem to imply that there is a brotherhood that is necessary (and missing by a slave) between the Jew who attacked and his 'brother' that was embarrassed. Where is the implication that the person attacked must intrinsically have 'brotherhood,' thus implying an exclusion of the slave, who has no brotherhood at all, even with his own kin?

It seems that according to the second understanding, we are not learning out from the relationship implied by "איש ואחיו" - a man and his brother, but rather, simply from the fact that the person who was attacked was referred to as a 'brother,' as opposed to, say, a 'fellow' (עמיתו) or another similar term.

It is also interesting that according to the mesoras hashas, this second understanding was the one Rashi preferred. Perhaps he preferred it because the Gemara, when stating the drasha, does not say, "to the exclusion of one who has no brotherhood with him (ie the one who attacked him)," but rather the Gemara says, "to the exclusion of one who has no brotherhood," without mentioning the one who attacked. This seems to be implying that he intrinsically has no brotherhood, even with his own sister and brother.

It is notable that Tosfos says, in explanation of Rashi's second understanding, that we are speaking about the slave's children, that they do not have brotherhood with their siblings. This is actually indicated from Rashi himself, when he says that the source for this idea that a slave would be permitted to marry his sister is from the verse that compares a slave to a donkey. This comparison teaches us that a slave's child is like a donkey, whose offspring may be mated with one another.

This is an important point, because this verse specifically applies to a slave, and not to a regular non-Jew, who, it would seem, would not be permitted to marry his sister. The slave himself would also be like a regular non-Jew, forbidden to marry his sister, as he was the product of a relationship between non-slaves. Only a child born of a slave would be considered like the child of a donkey and not related to his siblings.

BK 86 - payment for impermanent damage

The Gemara brings the argument between Rava and Abaye as to the obligation where one has caused an impermanent damage. Abaye says the damager pays 'sheves gedolah,' the value of the hand, and 'sheves ketana,' the loss of work as a cabbage patch guard. Rava says there is no payment for the hand, rather he is paid for his loss of work, but his work as a regular full-fledged worker.

I was wondering why according to Abaye one would have to pay for the hand if it is going to return to full usage later. I realized that the payment will be the difference between what he was worth before the damage, and what he would be worth now if he was sold as a slave. If he was currently sold, the person buying would be aware that his new slave's hand would be returning to full use soon, so the market value of the one damaged has not gone down as much as if he had lost the use of his hand completely.

It is also important to note that both according to Rava and Abaye, the value of the hand is being paid for, however, it is really just a question of how we look at the temporary devaluation - as נזק - the regular damage, and therefore we look at the slave value (Abaye); or as שבת - the loss of work, and therefore we look at his full loss of work (Rava).

BK 84 - midgets killing giants

It is interesting to note that at the beginning of the piece of R' Dustai ben Yehuda (on 83b), when we talk about different sizes (a small eye and a big eye), the Gemara says that if the one who knocked out the victim's eye had a smaller eye than his victim, we would lack a fulfillment of "an eye for an eye" if we would knock out the assailant's eye. Only when we speak of the possibility of one person paying (ie where the assailant's and the victim's eyes are different sizes) and another person having his eye knocked out (if their eyes are the same size) do we bring the passuk that has to do with "one law shall be for all."

When the Gemara later brings the contrasting cases of a midget killing a giant and a giant killing a midget, one would have expected the Gemara to bring the passuk of "a soul for a soul" which indicates that the person being killed must be the same size as the one he himself killed. Instead we bring the verse of "one law shall be for all."

There are two possible explanations that come to mind.

One is that the Gemara is assuming that you know the back and forth that was just stated, and it is almost like a חסורי מחסרא that you can add in, "if they are different size people than perhaps we would pay value in such a case. But then we would have the problem of 'one law shall be for all...'"

Another possibility is that the Gemara is trying to show that we are not focusing in on the thing that was superficially lost (the body or the eye), rather the function of that thing (life/sight). We could not bring the verse נפש תחת נפש - "a soul for a soul" because at this point we are coming to prove our point by exclusion, and that verse actually implies our point directly, that we focus not on the body, but rather the soul. This second explanation, however, could be easily refuted because the word נפש, while traditionally translated as 'soul' is really referring to the animal soul, and more directly indicates the body itself, not only its life force per se.

ונראה יותר כפשט הראשון

I think it also interesting to note that in the הוה אמינא of the Gemara we would have thought to say that we don't focus on the loss of vision (in the case of the eye) or the loss of life (in the case of murder), but rather on the eye itself or the body itself. Why would we think such a thing? I think that it is a very fair assumption because the Torah is מחדש that all you are paying is the actual value as a slave, not the intrinsic value of the eye or the life (which would seem to anyway be priceless). Thus perhaps we would think that we should be very 'superficial' as it were, and make a distinction between different size bodies and eyes. The חידוש is that we do not look at it so superficially, rather we look at the eye for its function, which is sight, and the body for its function, which is life.