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In Shmos 21:35 we learn about a scenario regarding an ox that gores another person’s ox and the second animal dies. The gemara in Bava Kama 4a says that the owner of an eved knani who hurt somebody else, despite the fact that he is owned by a Jewish master, is not liable for the damage. The gemara gives two reasons for this. The first reason is that the owner of the eved is considered an anus (out of his control) since he cannot stop his eved that may want to do damage. This svara is Min HaTorah. The second reason is that we are worried that every eved that will want to take revenge against his master will go out and do damage and cause the master a lot of anguish. Chazal therefore were mesaken that the owner is exempt from paying for those damages in order to protect him. The Maharam miLublin and the Noda Bi’Yehuda say that this is only De’Rabbanan; however, Min HaTorah he would have to pay because the owner does have the capability and the culpability to make sure his eved does not do damage.
The question can be asked as follows: Do we say that the yesod of the din is based on the explanations of the above gemara? Conversely, do we say the fact that the Torah only mentions an ox causing damage, but does not mention a slave or maidservant causing damage shows that the owner is not responsible since the Torah was never mechayev him? The reasons in the gemara are just an explanation clarifying why the Torah does not mention a slave that caused damage.
The Amudei Ohr 9 and the Chazon Ish in Bava Kama 3:1 for Daf 4a take the position of the second reason that the main reason the owner is pattur is because the posuk never mentioned anything about a slave causing damage. The proof for this is seen in the Mechilta 21:28 that discusses that the posuk only states that an owner is only responsible for an ox that gores. How do we know all animals are included in this? We learn this out from Shabbos; just like all animals are included in the mitzvah of shvisas Shabbos, so too when it comes to hezek, all animals are included. On the other hand, we see that a slave would be exempt as we see in Bava Kama 54b that when it comes to having two types of animals plowing together, the issur includes all animals as we learn from Shabbos. However, that issur includes a human being doing the plowing together with an animal. We see from this that an eved is not included in the issur of an ox doing damage. The gemara’s two reasons why the owner is exempt is just explaining the reasoning of the posuk.
The Noda BiYehuda, in the middle of Choshen Mishpat, siman 7 says that the only exemption of eved knani is that he might take revenge, and therefore the owner is not responsible min HaTorah. The Noda BiYehuda discusses an eved that killed another person after being warned with eidim. The eved is going to be killed, so there is no chashash that the eved will look to take revenge on the master. It therefore stands to reason that the eved did not do this to exact revenge on his master since he will die. The Achiezer 1 (21:7) discusses the case where the eved is going to get malkus. There is no reason to believe the eved did it to exact revenge on the master. In this case, the owner would be responsible. This is in direct opposition to the Chazon Ish and Amudei Ohr who say that the posuk is never mechayev an eved for hezek.
We see the story of the slave of Yanai HaMelech in the gemara in Sanhedrin 19a who killed somebody. Shimon Ben Shatach told the Dayanim to bring the slave to Bais Din with his master, the king Yanai. Why did Yanai have to come? According to the Noda BiYehuda this would make sense since Yanai was the owner and he would have to pay money since his slave killed someone, and the slave did not do it in order to exact revenge on his master. Yanai therefore had to be there for the psak that he might have to pay money. According to the Chazon Ish, Yanai would not be required to pay in any case since the Torah was never mechayev a master to pay for damages caused by his slave. Why did Yanai need to be there? The chiddush could be that since the Bais Din was going to kill the eved, and the master would end up losing a slave and taking a loss in money, Yanai had to be there since Bais Din will only pasken in the presence of the baalei dinim.
May we be zocheh to have Battei Dinim again in Eretz Yisrael.
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