Kommentar zu Schemot 21:26

את עין עבדו [AND IF A MAN SMITE] THE EYE OF HIS SERVANT — of a Canaanitish servant; but the Hebrew servant does not got free on account of his tooth or his eye having been knocked out by his master, as we have stated in our comment on the passage לא תצא כצאת העבדים (v. 7).

וכי יכה איש את עין עבדו, If a man smite the eye of his slave, etc. In Kidushin 24 Rabbi Shimon ben Gamliel and the other rabbis disagree on the meaning of this verse. Rabbi Shimon ben Gamliel holds that the legislation contained in this verse applies only when the master has destroyed the eye of his slave deliberately; the other rabbis hold that even if he had not done so deliberately but had merely aimed his blow at the eye, the slave goes free. According to the rabbis, why did the Torah not begin the verse by writing: "whenever a master destroys the eye of his slave," instead of writing "when he strikes the eye of his slave and he destroys it?" Perhaps the Torah did not use this expression as I would have interpreted it as applying to the eye regardless of the intent which has to accompany such a destruction of the eye.

תחת עינו, if the victim was a gentile slave.

וכי יכה איש את עין עבדו, “if an owner strikes the eye of his slave, etc.’ The Torah speaks of a gentile slave. The legislation pertaining to the destruction of such a servant’s eye formulated here applies equally to 23 other parts of the body enumerated in the Talmud. The reason the Torah chose the eye as the example of the organ whose loss results in the slave’s being freed forthwith, is that when Cham, Noach’s younger son, saw his father in a state of nudity due to his being drunk, instead of covering him he told his brothers i.e. he employed his teeth in doing so. This is why even the loss of a tooth is considered so important by the Torah, (verse 27), as it too is an organ capable of causing serious harm.

וכי יכה איש את עין עבדו, “And if a man will injure the eye of his slave, etc.” It is a Biblical law that a Canaanite slave is set free if he lost a tooth or eye through maltreatment by his master. The reason is that they became slaves only due to “tooth and eye.” It is written in connection with Cham the father of Canaan (Genesis 9,22) “Cham the father of Canaan saw the nakedness of his father and he told his two brothers outside.” He was first guilty with his eyes by looking and then with his teeth by telling what he had seen.” This is why he was cursed: “cursed be Canaan, the lowest of slaves shall he be to his brothers” (Genesis 9,25). Once the offending organs had been smitten the rest of the body has been released from that curse.
Our sages (Kidushin 25) say that the word ושחתה, “and destroys it,” in our verse means that there must have been an intent to destroy that eye or tooth. If the master struck the eye in the process of trying to cure it and the treatment failed and resulted in loss of that eye, the slave does not go free. The sequence of these paragraphs commences with verse 20 which speaks of killing one’s slave intentionally, a very severe sin, progressing to the description of two men fighting in the course of which the Torah discloses the legal status of an unborn baby, a death which is due to a lesser sin than that described in verse 20. This is followed by injury inflicted on Jewish people, i.e. the meaning of “an eye for an eye.” There the Torah speaks about injury rather than death. This is followed in turn by injury caused to a Canaanite slave, the least serious misdemeanor of the list commencing in verse 20. After having dealt with injuries and death caused by human beings, the Torah turns its attention to injuries or death caused by beasts or inert objects. The Torah proceeds in a very orderly and logical manner.

She shall not go free as do the (gentile) male-slaves. [Also a male Hebrew slave does not go free in this manner, since male and female Hebrew slaves] are compared to one another by the Torah, as it says, “If your Hebrew brother or sister is sold to you. . .” (Devarim 15:12).

V. 26 u. 27. Mit עבד und אמה ohne nähere Beifügung ist am Gesetze immer עבד כנעני, der kanaanitische Leibeigene bezeichnet. שן ועין sind nur exemplifikatorisch, und zwar durch die Wiederholung des לחפשי ישלחנו in möglichst weitem Umfange als רבוי zu verstehen (siehe zu Kap. 22, 6). Es sind nur alle jene Verstümmelungen ausgeschlossen, die nicht wie "Auge" unreproduzierbar, oder nicht wie beide augenfällig sind. Es sind darunter begriffen: כל מומין שבגלוי ואינן חוזרין. Neben Auge war noch Zahn zu nennen, weil dieser ein Organ ist, das nicht mit der Geburt gegeben wird, und daher minder wesentlich erscheinen könnte (Kiduschin 24 b). Indem das Gesetz das ושחתה, das Verderben des Auges etc. nur als Folge des כי יכה, eines Schlages, eintreten lässt, setzt es offenbar nicht die Absicht der Verletzung voraus. In der Tat wird die Freilassung statuiert, selbst beim geringsten Grad der Fahrlässigkeit: היתה לו אבן מונחת לו בחיקו ולא הכיר בה ועמד ונפלה לעין עבד, in welcher נזק allgemein zum Ersatz kommt, und selbst bei in bester Absicht verübter Ungeschicklichkeit z. B. שהיה רבו רופא ואמר לו לחתור שנו והפילו u. dergl. (B. K. 26 b. Kiduschin 24 b. תוספו׳ das., im Gegensatz zu Maimon. עבדים V. 11). Indem aber das Gesetz in der Freilassung eine Entschädigung bestimmt, die in der Regel weit den Wert des zugefügten Schadens übersteigt, indem es ferner diese Entschädigung ohne Rücksicht auf den verschiedenen Wert des verletzten Gliedes, in allen Fällen, z. B. beim Zahn wie beim Auge, gleich eintreten lässt, דבר קצוב, so ist es klar, dass die als "Ersatz" ausgedrückte Freilassungspflicht doch nicht als eine תשלומין, als Ersatzschuld, sondern als: קנס, als Präventivpön (siehe zu V. 37) zu begreifen ist, um durch dieselbe Gelassenheit, Milde und eine noch größere Vorsicht in Behandlung der Leibeigenen als selbst hinsichtlich Freier bei der Herrschaft hervorzurufen.

לחפשי ישלחנו, “he must set him free;” even if he had only knocked out one of his Canaanite slaves’ teeth. According to a Midrash, (asking the rhetorical question) will such a slave really be given his freedom just because he lost as tooth? The answer given is as follows: Cham, the son of Noach was cursed by G–d, [actually his son, seeing that he had previously been blessed by G–d and that blessing could not be nullified Ed.] for having seen his father naked, and having told his brothers instead of covering him. In our verse, the subject, the master of the slave, had actually deprived his slave of a tooth or an eye, no wonder that the Torah applies a financial penalty to the master by decreeing that he release the slave (whose market value is basically 30 shekel).

לחפשי ישלחנו, “he has to discharge him to freedom.” The Torah’s point here is that the slave does not have the option of accepting a financial settlement for the loss of his limb by his owner. The reason is that such a settlement would be useless to him, seeing that as long as he remains a slave all that he owns belongs to his master. Even a person who has sold himself into slavery with the express condition that his master cannot control his possessions, the master remains in a position that enables him by harassing his slave force him to hand over his belongings to him. The only way this can be avoided is by setting his slave free.

תחת עינו [HE SHALL LET HIM GO FREE] FOR HIS EYE’S SAKE — and similarly if he cuts off one of the twenty-four “tips of limbs” viz., the fingers, the toes, the two ears, the nose and the ראש הגויה, the membrum (cf. Mishnah Negaim 6:7). But why, since the precept is not applicable to eye and tooth alone but to twenty-four limbs, are both the eye and the tooth, mentioned? One would have stufficed! Because if only the eye were mentioned and not the tooth also, I might have said: What it the characteristic of the eye? It came into the world together with him! So, too, this law is applicable only to such limbs as came into the world together with him, but not to the tooth, for the tooth did not come into the world together with him. If, on the other hand, only the tooth had been mentioned and not the eye also, I might have said: the law applies even to a case when the master knocked out a child-slave’s tooth which grows again (more lit., which has a substitute) after a time. Therefore the eye is also mentioned to intimate that the law can be applied only when the master knocks out the tooth of his adult slave which, like the eye, does not grow again. (Kiddushin 24b).

Twenty-four tips of limbs. This is derived from the law of tooth and eye, which serves as a binyan av (prototype). The common denominator [of tooth and eye] is that they are: permanent defects, tips of limbs, visible, and the result of an intentional blow. Thus, all [the other 24 tips of limbs, which have these qualities, have the same law]. This excludes the case of the master cutting flesh from his slave, since it grows back. (Mechilta)

The Torah may also have intended to convey that though the eye was not destroyed immediately and totally at the time the master struck the slave but only some time later, the legislation that the slave goes free still applies. This situation is different from the one described earlier when death as a result of an unintentional killing had to occur immediately in order for the killer to be guilty of murder. The opinion of the rabbis is supported by the Torah using the word ושחתה, "he has destroyed it," i.e. even if he had not intended to.