QUESTION: The Gemara asks what the Halachah is in a case of an owner of an
Eved who sells his rights to receive the "Kenas" of his Eved to someone
else. That is, if an ox ever gores the Eved, the penalty that is due to the
owner will go to the one who bought the rights to receive the penalty. For
all other purposes, though, the original owner is still the full owner of
the Eved. Can someone sell his Eved only with regard to receiving the Kenas?
The Gemara says that this question applies according to both Rebbi Meir and
the Rabanan. Although Rebbi Meir normally holds that a person may buy or
sell an item that has not yet come into the world, and thus the owner should
be able to sell the future Kenas, perhaps this case is different. In a
normal case of "Davar she'Lo Ba l'Olam," the item is certainly going to come
into the world (such as fruits that will grow on a tree). In this case,
though, it is very possible that there will never be any Kenas, because
perhaps the Eved will not be gored by an ox, and even if he is gored by an
ox, perhaps the owner of the ox will admit to the crime and thus exempt
himself from the Kenas (and "Modeh b'Kenas Patur")! Thus, it is not clear
what Rebbi Meir would hold in a case of an Eved that was sold only with
regard to his Kenas.
The question also applies according to the view of the Rabanan, who hold
that a person *cannot* buy or sell an item that has not yet come into the
world. Perhaps the Kenas of an Eved is different, because all of the factors
involved in causing the Kenas are *in* the world -- the Eved and the ox.
Hence, the Kinyan is considered as though it is being made on an item that
is in the world.
The Gemara's explanation for why its question applies to the Rabanan is
difficult to understand. *Most* of the cases in the Gemara that are
classified as a "Davar she'Lo Ba l'Olam" also fit this description of the
Kenas of an Eved! For example, when one buys "Peros Dekel," the fruits of a
tree (that have not yet grown on the tree), both the land and the tree are
in the world; when one sells a field that has not yet purchased ("Sadeh Zu
l'k'she'Ekachenah"), the land, buyer, and owner are all in the world, but
since the item being bought is not yet in the possession of the one who
wants to sell it, we consider the sale to be taken place on a "Davar she'Lo
Ba l'Olam!"
ANSWER: The RASHBA explains that the case of the Gemara is a case of "Dekel
*l'Perosav*." The Gemara states that if the transaction does not involve the
sale of the *fruits* themselves for when they grow, but rather it involves
the *tree* with regard to its fruit, then we consider this a sale of a
"Davar she'Ba l'Olam" since the tree is in the world, and the owner is
selling a certain "part" of the tree -- its ability to create output. This
is what our Gemara means: the sale was made on the actual body of the Eved
with regard to his ability to produce a Kenas, so to speak (see also TOSFOS
DH Eved). (The Rashba points out the difficulty of this explanation in light
of the wording of the Gemara, but upholds this explanation because of the
above questions.)
Based on the explanation of the Rashba, we can better understand the
difference between buying a Eved with regard to his Kenas and buying a tree
with regard to its fruit. In the classic case of buying a tree for its
fruit, the fruit grow directly out of the tree; indeed, we can easily
visualize a certain part of the tree from which the fruit grow, and it is
that part which is now being sold. In contrast, in the case of the Kenas of
an Eved, the Kenas does not grow out of any part of the Eved. The Eved is
just the cause for the Chiyuv Kenas; there is no part of the Eved from which
the Kenas comes out. The KETZOS HA'CHOSHEN (29:4) proves from this Gemara
that when one buys a tree for its fruit, the fruit does not have to be a
direct outgrowth of the body of the item that exists now, but it can be any
direct consequence that the body causes to come about. Such an "outgrowth"
is considered a dimension of the body that exists now and is therefore
considered a "Davar she'Ba l'Olam."