כ״ז באייר ה׳תשע״ו (June 4, 2016)

Bava Kamma 4a-b: Damage Done by a Slave

As we have seen on the previous pages in Massekhet Bava Kamma, a person is held responsible for damages done by his property. One unique exception to this rule is when damage is done by a person’s or shifhah – non-Jewish male or female slave.

According to Torah law, a person can own a non-Jewish slave, who is considered property to the extent that he or she can be bought and sold (the halakha of an eved ivri is different. Such a slave is effectively a long-term employee, who, with minor exceptions, still remains obligated in all commandments as a Jewish person). The Gemara on our daf teaches that if a non-Jewish slave does damage, even though he is the property of a Jewish person no less than his ox is his property, nevertheless, the owner will not be held responsible to pay restitution for damages done by the slave. Rav Ashi explains that there is an important reason to make this distinction – in the event that the slave owner upsets him, the slave, who is unhappy with his working conditions, may choose to set a neighbor’s field ablaze, which would force the owner to pay large damages. In order to keep such power from the hands of the slave, the halakha frees the owner from responsibility for the slave’s actions.

Many accept Rav Ashi’s explanation as the basis for this law, and claim that this is a situation of tikkun olam (see Massekhet Gittindaf 35 and 36) created by to protect slave owners. According to this approach, the Torah law would obligate the owner to pay for the damages. There is, however, an alternative approach that suggests that the underlying reason to free the owner from paying is because the slave is an independent thinker who is personally responsible for his actions, so the owner cannot truly be held responsible for any damages that the slave does. This stands in contrast with an animal, which does not have the intelligence to be personally responsible for anything that it does. In fact, according to the Rambam (Hilkhot Geneivah 1:9 and Hilkhot Hovel U’Mazik 4:21), should the slave gain his freedom and has money, he will have to pay for damages that he did while he was a slave.